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The International Criminal Court

MONITORThe Newsletter of the NGO Coalition for an International Criminal Court

Issue 5 • August 1997

August PrepCom Tackles Thorny Political andProcedural Issues

THE RIGHTBALANCELionel Yee of Singapore on ICC Page 5

LA COMPETENCIAVictor Cedeño de Venezuela enla Competencia Page 4

COOPERATIONWITH THE COURTEric Odoi-Anim of Ghana on the ICC Page 7

WHO’S THE “BOS”?A Who’s Who of the PrepComBureau Pages 8-9

“ARREST NOW!”Campaign to Press for Arrest ofWar Criminals 2

The need for a more effective system ofinternational justice has come to the forefront inrecent headlines: “Cambodia May Find No Meansto Put Pol Pot on Trial,” “NATO TroopsApprehend War Criminal in Prijedor,” “UNICEFExecutive Director Calls for the Prosecution ofWar Crimes against Children.”

Meanwhile, the steady but difficultnegotiations on establishing a permanentInternational Criminal Court continue thissummer. Government delegates and NGOrepresentatives will gather once again at theUnited Nations for the fourth session of thePreparatory Committee on the Establishment ofan International Criminal Court August 4-15.During this session there will be two workinggroups to draft text for the treaty establishing anICC, which will be presented to a diplomaticconference in June 1998 for finalization andsignature.

Working Group One will deal with thedifficult and very political topics ofcomplementarity and trigger mechanisms.Complementarity refers to the relationshipbetween the international court and existingnational court systems. The preamble of the ILCdraft statute states that the ICC will not take overfrom national judicial systems but rathercomplement them “in cases where such trialprocedures may not be available or may beineffective.”

In previous meetings of the PrepCom, manydelegates supported the concept ofcomplementarity being included in the Court’sstatute. However, most also stated that

complementarity had to be included throughoutthe statute and not just in the preamble. Weavingthe idea of complementarity into the statute willinvolve defining the concept, deciding whodetermines when complementarity has beensatisfied and stating the criteria for making thisdecision.

Working Group One will also discuss the“trigger mechanisms” of the court, or how a casewill come before the ICC. The important questionsof inherent jurisdiction, the conditions for theexercise of jurisdiction, and who can trigger aninvestigation or case will be discussed.

Inherent jurisdiction gives the court theauthority to prosecute crimes within itsjurisdiction without any additional consent fromstates parties. There is a question as to whether thecourt will have inherent jurisdiction over thecourt’s core crimes of genocide, crimes againsthumanity and war crimes.

An alternative would be to set up an “optin/opt out” consent mechanism where even after astate has joined the court’s treaty, the state would“opt in” or “opt out” of the court’s jurisdiction foreach crime. In previous PrepComs, it has beenproposed that the ICC might have inherentjurisdiction over cases of genocide, but a separateconsent regime for the other crimes. The basis forthis proposal is the 1948 Genocide Conventionwhich provides for prosecution by aninternational tribunal.

One major issue to be decided with the triggermechanism is whether the U.N. Security Councilwill be able to block the Court from hearing cases

The ICC MONITORis a publication of the

NGO Coalition for an ICC

Donna K. Axel, Boutros Boutros-Ghali, French Senator Robert Badinter, Dr. Cherif Bassiouni,Emma Bonino and H.E. Ambassador Muhamed Sacirbey at the No Peace Without Justiceconference in Paris, June 1997. See page 11.

Continued on page 3

A.M

.L. Corom

inas

The International Criminal Court MONITOR

a project of the NGO Coalition for anInternational Criminal Court (CICC)

CICC Address:c/o WFM 777 UN Plaza 12th Floor New York, New York 10017USA

Tel: 1-212-687-2176Fax: 1-212-599-1332email: [email protected]

Web Address:http://www.igc.apc.org/icc

William R. Pace Convenor

Rik Panganiban Editor

Donna K. Axel Program Associate

Fanny Benedetti Program Associate

Denise Lifton Program Associate

Pascale Norris Program Associate

Sang Chung Intern

CICC Steering Committee:Amnesty InternationalEuropean Law Students AssociationFédération Internationale des Ligues

des Droits de l’HommeHuman Rights WatchInternational Commission of JuristsLawyers Committee for Human RightsNo Peace Without JusticeParliamentarians for Global ActionWorld Federalist Movement

General funding for the work of theCoalition has been received from theEuropean Communities, the FordFoundation, the John D. and CatherineT. MacArthur Foundation, the Paul &Daisy Soros Foundation, thegovernments of Denmark and Sweden,individual donors and non-governmentalorganizations (NGOs), with additionalsupport for specific CICC programs fromthe governments of The Netherlands andNorway.

The International Criminal Court MONITOR • August 1997

“UNICEF believes that those responsible cannot andmust not be allowed to act with impunity. A permanentinternational criminal court, and a permanent prosecutor's office would mean that, for the first time,the world will have the capacity to bring to justice thoseresponsible for the torture, the rape and the murder ofchildren.”

UNICEF Press Release , May 9, 1997

Contents

Legal Experts Meet in Nottingham and Siracusaby William R. Pace Page 3

¿Cuando Podrá la Corte Ejercer su Competencia?por Victor Rodríguez Cedeño Page 4

The Rights of Torture Victims to Reparation and the Court Page 4

Finding the Right Balanceby Lionel Yee Page 5

Apartheid Should be Included in the ICC’s Jurisdictionby Sheri Fink Page 6

Women’s Caucus Expands Efforts, Increases Outreach Page 6

International Cooperation, Judicial Assistance and the ICCby Eric Odoi-Anim Page 7

The Members of the ICC PrepCom Bureau Page 8-9

ICC 1997 Calendar Page 9

Trying War Criminals in Absentiaby Dr. Herman Schwartz Page 10

Regional Reports Page 11

“Arrest Now Campaign” Calls for Apprehension of War Criminals Page 12

NATO Troops Apprehend War Criminal in Prijedor Page 13

CICC Participating Organizations (partial list) Page 13

Recent ICC-related Documentscompiled by Sang Chung Page 15

About the Coalition Page 16

NOTE: The Coalition for an ICC does not take positions but is committed to disseminatingrelevant ideas and proposals related to the International Criminal Court. The Coalition isalways interested in receiving submissions for our newsletter the ICC Monitor. Submissionsshould be sent to the attention of Rik Panganiban at the address listed in the right column.Please note that opinions expressed in a particular article are not necessarily the views of theCoalition or any of its participating organizations.

initiated by states lodging complaints with theProsecutor. Such a blocking could occur if theSecurity Council determines that a hearing ortrial will interfere with its own attempts torestore peace in that region. Another issue iswhether the Prosecutor will be able to initiateinvestigations on his or her own initiative orwhether only the Security Council and statesparty to the treaty will be able to initiate cases.

Working Group Two will focus on the Rulesof Procedure for the Court’s operation. Theseare particularly important because it is in therules of procedure where most of a defendant’sdue process and fair trial protections andwitness and victim protections are found. Themain difficulties of this group will be decidingon the level of detail to be included in theStatute and finding means to bridge the gapsbetween the various legal systems of the world.

Some “extra-curricular” work has beendone on the topics of Working Group Two.From May 29 through June 3, the IstitutoSuperiore Internazionale di Scienze Criminali(the International Institute of Higher Studies inCriminal Sciences) hosted an informal meetingof experts on the rules of procedure andevidence for an international criminal court.The group discussed many of the issuescontained in the proposals contained involume II of the PrepCom report. (See thearticle on this page.)

Overall, the PrepCom delegates have adifficult task ahead of them in August. At thevery least, Working Group Two will need tofinish drafting text on rules of procedure topresent to the diplomatic conference in June1998. In addition, Working Group One willneed to offer the diplomatic conference a fewpossible proposals to choose from on the issuesof complementarity and trigger mechanisms.

Increasingly, the greatest enemy of the ICCis time. With the June 1998 treaty conferenceonly ten months away and only five moreweeks of official PrepCom sessions scheduled,one can only be thankful for the long days ofsummer.

The article was written by Steven J. Gerber, Directorof the ICC Project of the World FederalistAssociation and the Coordinator of the WashingtonWorking Group on the ICC.

August PrepCom Report, continued from Page 1

During the first week of June, the IstitutoSuperiore Internazionale di Scienze Criminali(ISISC) was once again the site of an excellentinformal inter-sessional group of expertsmeeting on “Rules of Procedure and Evidence.”At the conference major progress was made indeveloping a working paper which is anabbreviated version of the compilation ofproposals on procedural matters contained inVolume II of the Report of the PreparatoryCommittee.

After the meetings in Italy authors of someof the text in Volume II continued their effortsto delete, combine and reformulate theirproposals. A working paper, “AbbreviatedCompilation of Proposals of ProceduralMatters,” is now circulating informally amongthe participants in the Institute meeting andamong governments who have expressed aninterest in procedural matters. The NGOCoalition is making copies of the working paperavailable to its interested members,governments and others, and will be uploadingthe document to its Web site soon.

It is important to note that the workingpaper is not an official document, but “is onlyintended as a tool to facilitate the discussions ofprocedural matters.” Also, it is very much awork-in-progress in that reportedly governmentsare continuing to make revisions of their text inpreparation for the August PrepCom.

The Italy meeting was attended by 45experts serving in their individual capacity fromsome 30 countries. In addition tworepresentatives from the International CriminalTribunals and six NGO representatives alsoparticipated. Experts came from four LatinAmerican countries, five Asian countries, twoEastern European countries, four Africancountries, three North American countries, anda dozen European countries.

At the opening session Ms. Silvia Fernándezof Argentina was requested to serve as chair ofthe meeting. Ms. Fernandez, a member of theBureau of the ICC PrepCom also chaired theprocedures discussions during the 1996 ICCdiscussion at UN Headquarters. She wasintroduced by fellow PrepCom officer andconvenor of the meeting Professor CherifBassiouni. Professor Bassiouni, president of theInstitute, explained special efforts had beenmade to invite expert representatives from allregions who had expressed an interest inattending.

Ms. Fernández and the other governmentexperts were especially sensitive to highlight theunofficial, informal nature of the meeting in anattempt to avoid misunderstandings which havearisen over documents produced from similarconferences in the past. The experts agreed thatthe consultations would be limited to“reducing” text in Volume II, not in draftingnew text or a new proposal. Thus, only the“authors” of Volume II text attending theInstitute meeting could express their willingnessto reduce, combine or delete text. Much of thereduction agreed to by experts (e.g. fromAustralia, France, The Netherlands, Canada, andArgentina), concerned issues the experts, afterextensive and wide-ranging debate, concurredshould not be in the ICC Statute, but could beincluded in the rules of procedure adopted bythe Court once established. Text proposed bycountries not attending the Institute meeting

was left untouched.Perhaps in part due to these severe “ground

rules,” the meetings at the Institute wereextremely cordial and productive. It wasfascinating when, after lengthy periods ofdiscussion on certain principles or elements ofprocedure, it became clear that authors ofdifferent text were actually making nearlyidentical proposals, but using different termsand language.

The Chair adopted the valuable tact ofasking different country experts to “introduce”particular articles, describing the key principles,elements and differences between the proposalsin Volume II. Argentina had prepared a“suggested guidelines” paper for the meetingwhich assisted the experts preparingintroductions.

NGOs were very grateful to the Institute forbeing invited and allowed to contribute to thediscussions. One of the great values of thismeeting for me was to be able to meet thegovernment experts away from the pressuresand stress and formality of the UN negotiations,and to be able to befriend some of the personsleading this historic initiative.

The University of Nottingham HumanRights Law Centre also organized an informalintersessional workshop “Toward a ProceduralRegime for an International Criminal Court” inLondon on June 6 - 7th. Around fifty expertsdrawn from legal practice, academia andgovernments met to discuss how different legalsystems treat various issues regarding criminalprocedure and the organization of the court.Several experts from a variety of legal systemsproduced background papers on how theirsystems address key subjects related to theInternational Law Commission's (ILC) draftarticles currently used as the basis of the ICCPrepCom's deliberations.

Workshop sessions on the first day exploredapproaches related to prosecution matters andthe rights of suspects and the accused. While onthe second day, sessions covered the topics ofevidence, witnesses and victims; guilty pleas andplea bargaining; and trials in absentia, non bis inidem and post-conviction review. Rather thandraft alternative texts, the workshop insteadaimed to facilitate a greater understanding ofthe different legal systems with a view toassisting all the participants at upcomingPrepComs. Thus, the University of Nottinghamplans to provide a report of the workshop'ssessions to the August ICC PrepCom.

These intensive conferences remind onethat the complexity of the legal, judicial andpolitical issues involved in adopting an ICCStatute is staggering. Thus the progress beingmade at the UN and in informal meetings likethis one is truly inspiring. This quiet and largelyignored negotiation is, thus far, a “best practice”example of how the world’s governments areproceeding in the post-Cold War period tofundamentally strengthen the internationallegal order, creating an institution whichstrengthens the world’s ability to preserveinternational peace and security, protect humanrights and “rid the world of the scourge of war.”


Legal Experts Meet in Nottingham and the IstitutoSuperiore

by William R. Pace

August 97 PrepComBasics

Official Title:“Preparatory Committee on the Establishmentof an International Criminal Court, FourthSession”

Dates:August 4-15, 1997

Location:UN Headquarters, New York City, USA.

Division of Work:Working Group 1

Complementarity & Trigger Mechanisms

Working Group 2Procedural Matters

Redress is a United Kingdom-based NGOworking to promote the right of survivors oftorture to reparation. Concerned that the draftStatute for a permanent International CriminalCourt took too little account of the needs oftorture survivors, Redress initiated research intothe possibility of promoting the right toreparation within the context of a permanentICC.

In the ILC’s draft Statute, provision is madefor the protection of victims and witnesses (draftarticle 43) and only indirectly for financialcompensation to victims of crimes that fallunder the Court’s jurisdiction (article 47). Noprovision is made for other forms of reparationsuch as restitution, rehabilitation, satisfactionand guarantees of non-repetition. In thePreparatory Committee meetings, discussion ofthe right of victims to reparation has beenlimited to a provision for restitution of propertyacquired as a result of criminal activities (asprovided for in the Statute of the InternationalTribunal for Former Yugoslavia). Nonetheless, anumber of States have spoken firmly in favor ofincluding in the Statute the possibility of eitherrestitution or compensation, or both.

Redress believes that the ICC can and should

play a significant role in protecting andpromoting the right to reparation for survivorsof torture and other crimes under human rightsand international humanitarian law which willcome before the Court, without prejudicing theprimary penal function of the Court. Manynational criminal courts are empowered toaward compensation to victims either from theoffender or from a compensation fund. Certaincivil law systems allow victims to become ‘partiecivile’ to criminal proceedings to claim damagesdirectly without the need for recourse to civillitigation. There is increasing interestinternationally in ensuring that criminal justicetakes better account of the victims’ needs.

The following recommendations, based onlegal precedents and developments in criminaljustice systems around the world, have evolvedfrom months of research. They were finalized ata recent consultation involving selectedinternational lawyers, governmentrepresentatives, and experts from relevant non-governmental organizations. Redressrecommends the following:

1. To allow the Court, in sentencing, to ordernot only imprisonment or a fine, but also

“other appropriate forms of reparation,” andto impose a corresponding duty on States tocarry out such judgments of the Court (draftArticles 47 and 58).

2. To change the order of priority for fundscollected in fines so that funds would first goto victims of crime and not to defraying thecosts of the trial (draft Article 47).

3. To give the Court the opportunity, whendetermining sentence, to take into accountboth the impact of the crime on the victimsand any genuine efforts made by the accusedto make reparation to victims (draft Article46).

Redress intends to pursue theserecommendations vigorously during theforthcoming sessions of the PreparatoryCommittee when the questions of sentencingand victims’ rights are on the agenda.

For more information, Redress can bereached at tel +44 171 278 9502, or via email at<[email protected]>.

Este texto es un extracto de un papelmás largo pronuciada á la Academiade Ciencias Políticas y Sociales deVenezuela en abril de 1997.

. . . Ahora bien, cuando la cortepodrá ejercer su competencia paraconocer una cuestión? A esterespecto debemos señalar que estaprevisto en el Proyecto de Estatuto,un régimen particular en relacióncon el genocidio y otro aplicable alos otros crimenes. Además detratarse de los crimenes a los que serefiere el artículo 20 del proyecto deEstatuto, para que la corte puedaejercer su competencia, debencumplirse ciertas condicionesprevias, excepto en el caso delgenocidio en relación con el cual,segun se ha acordado en formapreliminar, la competencia deltribunal sería automática oinherente.

El carácter inherente de lacompetencia en el caso delgenocidio se funda en la gravedadde este crimen y en la referencia quese hace en la Convención para laPrevención y la Sanción del crimende Genocidio, de 1948, a untribunal penal que se crearía en elfuturo, aunque esta convención sebasa en el principio de laterritorialidad y no en el principioaut dedere aut judicare. LaConvención de Genocidio prevé laparticipación de los tribunales delEstado pero también, comocontrapartida, la posibilidad deremitir la cuestión a un tribunalpenal internacional. La inherencia o

automaticidad de la juirisdicción dela nueva corte hace que no seanecesario el doble consentimientodel Estado, requerido para los otroscrímenes previstos en el artículo 20del proyecto de la CDI [Comisión deDerecho Internacional].

Así pues, de acuerdo a estadisposición, se requerirá que lacompetencia haya sido aceptada porel Estado en cuyo territorio elpresunto culpable del crimen sehalle detenido y por el Estado encuyo territorio se produjo la acciónu omisión considerada, para que eltribunal pueda conocer unadenuncia.

No basta con ser parte en elEstatuto para que la corte seacompetente para conocer uncrimen, salvo en el caso delgenocidio como lo indicamos antes.Es necesario, segun lo plantea elartículo 21 del proyecto que elEstado exprese su consentimiento obien al momento de la firma oratificación, ante el depositario o,después, ante el Secretario delTribunal.

Debemos mencionar que en suPropuesta Básica, la CDI atribuyóalgunas facultades al Consejo deSeguridad de las Naciones Unidas,en relación con el inicio del proceso,lo que ha sido objeto de intensosdebates durante las negociaciones.

En nuestra opinión, el Estatutono podría otorgar al Consejo deSeguridad de las Naciones Unidas,nuevas facultades y competencias,distintas a las establecidas en laCarta de las Naciones Unidas, como

se pretende con la redacción actualdel artículo 23 del Proyecto de laCDI.

La Comisión consideró que eranecesaria una disposición como éstapara que el Consejo de Seguridadpudiera hacer uso de la corte comoalternativa al establecimiento detribunales especiales.

La crítica principal que se haexpresado en el seno del ComitéPreparatorio y en las observacionesde los gobiernos, entre ellos el deVenezuela, es que no se puedesometer la jurisdicción penalinternacional a la decisión de unorgano político, en este caso, elConsejo de Seguridad. El artículo 23propuesto por la CDI es quizás unode las más controversiales delproyecto por las implicacionespolíticas y las rígidas posiciones quesostienen los Estados quemantienen un puesto permanenteen el Consejo y que pueden ejercerel derecho de veto.

Si se aprobara ese artículo en laredacción propuesta, nosencontraríamos con que unadecisión del Consejo de Seguridadpodría ser sustitutiva de laaceptación por los Estados partes, dela competencia del tribunal; y, porotra parte, esta redacción podríaobstaculizar la funciónjurisdiccional del nuevo tribunal. Eneste último caso podría plantearseuna situación política y jurídicadifícil por cuanto el Consejo podría,por cualquier razón, no aprobar unaresolución en la que constate laagresión, aunque hubieren

evidencias claras del acto e impediral tribunal la posibilidad deestablecer la responsabilidad penalindividual de los indiciados.

Es cierto que la constatación deun acto de agresión por el Consejode Seguridad es importante;también, que juzgar a losresponsables de un acto de agresiónpodría implicar conocer antes laagresión en el Consejo; pero, elsometimiento de la competencia dela corte a una decisión o a unaindecisión de ese órgano, nos pareceinconveniente.

Por otra parte, la competenciadel nuevo tribunal puede serimpugnada y ello en dos estadiosdiferentes: el Estado Interesado,término que debe ser interpretadode la manera más amplia, solo antesde iniciarse las vistas; y, el acusadoen cualquier momento del juicio. Elplanteamiento de una excepción enrelación con la impugnación de lacompetencia tiene gran importanciaprocesal ya que se deberá abrir unproceso incidental y suspender eljuicio principal, como ocurre en lasjurisdicciones internas en la mayoríade los casos. . . .

Sr. Victor Rodríguez Cedeño es unembajador del Servicio Exterior deVenezuela y un miembro de laComisión de Derecho Internacional delONU. Los puntos de vista del auto sona título individual y no representannecesariamente la posición delGobierno de Venezuela.


¿Cuando Podrá la Corte Ejercer su Competencia?

por Sr. Victor Rodríguez Cedeño

The Rights of Torture Victims to Reparation and the Court

Note: This article has been written ina wholly personal capacity and theviews expressed in it are solely those ofthe writer and do not necessarilyreflect the views of either thedelegation or the Government ofSingapore.

I was not at the two meetingsof the Ad Hoc Committee on theEstablishment of an InternationalCriminal Court in 1995, but I haveattended all three of thePreparatory Committee’s meetingsheld so far, including the mostrecent in February this year.

Looking back on these sessions,one is struck by the perceptibleshift in the tone of the meetingsover the past year or so. I recall thatat the first of these meetings in thespring of 1996, overtly politicalstatements took the centre stage,whereas the emphasis in therecently concluded session hasbeen quite squarely on the texts ofthe proposed conventionestablishing the Court. This “shift”can, to a large extent, be attributedto the topics under discussion ineach session and the fact that theCommittee has, in its 1997 and1998 sessions, a more specific taskof negotiating a consolidated text,but I think it is also a reflection ofthe considerable progress which hasbeen made since the first meetingof the Committee. The debate isquite clearly now no longer aboutwhether the Court ought to beestablished (which was often atleast implicit in some of theinterventions made at the firstsession), but rather what shape theCourt should take and how itshould operate, i.e., the “nuts andbolts” issues which, in my view,should be the preoccupation of thelegal experts on the Committee.One cannot of course overlook thefact that many areas ofdisagreement remain but theprogress which has already beenmade should be a source of someencouragement for those of us whohave been involved with thissubject not only during themeetings of the Committee but,more importantly, in the inter-sessional periods as well.

As far as the recently concludedsession is concerned, two broadareas were discussed, viz. the listand definition of the crimes underthe Court’s jurisdiction and thegeneral principles of criminal lawto be applied by it. We now havefirst drafts of consolidated texts forall of the former and much of thelatter.

Turning first to the list anddefinition of the crimes, one cansay that the Committee is “almostthere” on the definition ofgenocide. Some of the outstandingwork on the definition of this crime

depends on how things will turnout in the working groupconsidering general principles, but Ido not think this will prove toocontroversial.

The definition of crimes againsthumanity is still the subject ofmuch disagreement, but a list ofnine or perhaps ten actsconstituting such crimes is shapingup, and we now have a usefulconsolidated document whichhighlights the areas where furtherwork needs to be done.

As for aggression, its definitionprobably poses less of a problemthan the question of whether itshould be a crime within thejurisdiction of the Court in the firstplace. That question is one whichin all likelihood has to be left to theDiplomatic Conference to resolve. Itake the view that the concerns ofthose who question its inclusion asa crime are not insurmountable ifan appropriate formulation can befound which gives properrecognition to the role of theSecurity Council in determiningacts of aggression. A draftconsolidated text definingaggression is nevertheless beforethe Committee now, and muchcredit for this should go to theGerman delegation’s efforts at theFebruary meeting.

The definition of war crimesproved to be one of the mostcontentious topics at the Februarymeeting. Its definition is by far thelongest (and probably the mostcomplex) of all the crimes in thefirst draft of the consolidated text.The primary divide among thedelegations is, as I see it, a fairlybasic one between states which areparty to the two Protocols to the1949 Geneva Conventions andstates which are not. This is again adispute which probably has to beresolved by the DiplomaticConference. Possible compromisesshould nevertheless be explored inthe meantime, including perhapsthe listing of the two Protocols astreaty crimes subject to acceptanceby states parties to the Statute.

The working group on thegeneral principles of criminal lawmade what I thought wasimpressive progress under thechairmanship of Per Saland ofSweden. Its deliberations werecertainly extremely challenging forthe criminal law practitioners onthe Committee because while indomestic law, one simply appliescriminal law principles to a givencase, it is not all that often that apractitioner has to ponder theraison d’etre of a particular principlein order to convince those whocome from a different legaltradition why it ought to be appliedby the Court.

We did not in fact complete

our discussions on generalprinciples. This had nothing to dowith any lack of effort on the partof the working group but was dueinstead to the sheer volume andcomplexity of the issuesthemselves. Some time willnevertheless have to be allocatedfor continuing this work and itseems to me that this may have tobe scheduled for the last session ofthe Committee in March/April nextyear.

Looking ahead to theforthcoming sessions of theCommittee, the insufficiency oftime which we experienced indealing with general principles maywell be repeated when theCommittee considers proceduralquestions, cooperation with theCourt and the organisational issues.These are also very weighty topicswhich will require a substantialtime if they are to be studied withthe care which they deserve. Wewill obviously have to use whattime is given to the Committeeefficiently and monitor ourprogress closely. If there is going tobe another “overflow” of workagain this August, it may well benecessary to extend the last sessionof the Committee next spring fromtwo to three weeks to cope with theoutstanding issues.

A fairly key area of concern tome is the need to ensure theindependence of the Court and theobservance of due process. Many ofthe cases which will come beforethe Court are likely to arise in apolitically charged context. Whilethe trial and conviction of thosewho perpetrate heinous offencesmay serve to register theinternational community ’scondemnation of their actions, wecannot pursue this objective at theexpense of a fair trial and a strictadherence to fundamentalprinciples of criminal justice suchas the presumption of innocence.

As far as the part played by thedeveloping world is concerned,there has been a marked

improvement in the level ofparticipation in the Committee bydeveloping countries from onemeeting to the next, both in termsof the number of states representedand the extent of theircontributions. Having said that, themajority of the initiatives andtextual proposals still originatefrom the delegations of developedcountries. This is probably due inpart to the availability of resourceswhich various countries cancommit to this exercise (and itmust be said that a commitment toattend the six weeks of Committeemeetings in 1996 and a further sixweeks in 1997 does makeconsiderable demands upon acountry’s resources). It may also bebecause many participants from thedeveloping world are still relativenewcomers to the meetings andhave yet to come to grips with themany and often very complexissues before the Committee.

An assessment of the prospects?Well, I remain fairly optimisticabout the outcome of theCommittee ’s work. There areobviously many areas where adivergence of positions existsamong participating delegationsand the need for a spirit ofcompromise to prevail in the

Finding the Right Balance

by Lionel Yee


...we cannot and mustnot set up a whollyineffective Courtwhich is capable ofmaking no more thanempty gestures in theface of appallingatrocities beingcommitted. Thatwould be to do a greatinjustice to the victimsof these crimes.

Legal experts at Istituto Superiore meeting in Italy, May-June 1997.

Continued on page 14.


Women’s Caucus Expands Efforts, Increases Outreach

The Women’s Caucus for Gender Justicein the International Criminal Court(Women’s Caucus) advocates the creation ofan effective and independent permanentInternational Criminal Court (ICC) whichintegrates a gender perspective in all aspectsof its statute and operation.

The issues that will be addressed duringthe August PrepCom are of utmostimportance to the creation of an effective andindependent Court and have significantgender implications. These issues include“trigger mechanisms” - the means forinvoking the ICC’s jurisdiction and initiatingthe prosecutorial process; the relationshipbetween national judicial systems and theICC; the investigation of alleged crimes, thetrial procedures, and evidentiary issues whichmust ensure a fair balance between the rightsof the accused and the protection of victimsand witnesses.

During the August PrepCom, theWomen’s Caucus will strive to ensure that:

• the ICC is accessible to individuals andgroups and the ability to lodgecomplaints is not limited to States or theSecurity Council;

• the Prosecutor has sufficientindependence, authority and resources toeffectively investigate and prosecutecrimes;

• investigation of sexual and genderviolence is thorough, consistent andgender-sensitive;

• the ICC rules of evidence and procedureare conducive to the effective prosecutionof crimes of sexual and gender violenceand address the specific concerns ofwomen victims and witnesses;

• appropriate and effective witnessprotection procedures are implementedbefore, during, and after trial, andadequate resources are available for thispurpose.

Integrating a gender perspective in the

ICC is an integral component of the worldcommunity ’s commitment at the 1993Vienna Conference on Human Rights toreverse the historic failure of States and theinternational community to recognize andeffectively punish serious gender violence as agrave human rights violation. Thiscommitment was reflected in the BeijingPlatform and stands to be further codified andoperationalized in the ICC Treaty. Thus, theWomen’s Caucus is concerned not only withhaving an independent prosecutor but alsowith sex-specific aspects of the investigativeand prosecutorial process. The invisibility ofsexual and gender violence and the presenceof sex-stereotyped assumptions in these areashave historically insulated perpetrators of thatviolence from accountability.

As a result of consistent monitoring bywomen ’s groups of the existing ad hocinternational criminal tribunals for the formerYugoslavia (ICTY) and Rwanda (ICTR),important progress has been made inrecognizing sexual and gender violenceagainst women as among the acts whichconstitute the most serious violations ofinternational law. As a result, some of theindictments from the Tribunals haveaddressed the issues of sexual and genderviolence.

The Tribunals also reflect progress in thedevelopment of rules of procedure andevidence. However difficulties experienced byadvocates and survivors in these Tribunalshave made clear the need for careful attentionto the issues of fair, effective and gender-sensitive investigation, prosecution, andwitness protection, and compensation ofvictims in the ICC process so as to correctsome of the inadequacies in the Tribunals.

The Women’s Caucus for Gender Justicein the International Criminal Court buildsupon the tradition of Women’s Caucusesinitiated at the UN conference on theenvironment at Rio in 1992.

Women ’s Caucuses at subsequentconferences from Vienna to Beijing, as well as

in various human rights fora have ensuredthat women’s experiences and vision areclearly and effectively articulated andaddressed by the UN and the internationalcommunity.

Due to the outreach efforts of theCoalition for an International Criminal Court(CICC), more NGOs interested in gender-issues have become involved in thenegotiations. The Women ’s Caucus forGender Justice in the International CriminalCourt began during the February 1997Preparatory Committee meeting at the UN.The organizing effort of a small group ofNGOs supported attention to the genderimplications of the negotiations. As a result,the consolidated text generated by thePrepCom of definitions of crimes includescrimes of sexual violence and persecutionbased on gender.

The Women’s Caucus hopes to mobilizeregional and national organizations tosupport the establishment of an ICC and theintegration of a gender perspective.

Regional and national organizations cansupport the Women’s Caucus through theexchange and development of informationand strategies on the ICC, and by workingwith other NGOs and individuals in theirareas.

The Women’s Caucus continues to growthrough international outreach and theinvolvement of new members and supporters.A small central coordinating staff is now inplace and beginning the critical outreachwork of the Caucus. If you are interested inreceiving more information or gettinginvolved in the Women’s Caucus, pleasecontact us.

Women’s Caucus Staff: Director - Alda Facio,Outreach Coordinator - Mary Winston Marrow,Administrator - Dilys Purdy. Women’s Caucus forGender Justice can be reached at tel +1-212-697-7741 and via email:[email protected].

Apartheid Should Be Included in the ICC’s Jurisdiction

By Sheri Fink

As a student at the University of Michiganin the late 1980 ’s, I remember that themovement against apartheid touchedeveryone. The “Diag,” the campus centerwhere protesters of every flavor gathered onrare mild days, always held a symbolicshantytown. This kept the onus of apartheidin our view each time we walked to class. Itreminded us that even though no warofficially raged in South Africa, the greaterportion of its population was forced to live inindignity, some forced off their land withbulldozers.

Periodically, morning dawned to find therough wooden boards of the shantiescollapsed into rubble. “No loss,” some wouldsnicker, “Haven’t those ugly things been uptoo long anyways?” But no matter how manytimes vandals pulled the symbols apart,vigilant people kept nailing them backtogether again.

Eventually their cause won. The

University of Michigan along with otheruniversities, corporations and countriesjoined in isolating the country. At last thelegal apparatus of apartheid crumbled like theshantytown in the Diag and we heard theelated voices of men and women interviewedon the radio as they went to exercise theirliberty to vote for the first time.

Now that we are on the verge of creatingan International Criminal Court, the crime ofapartheid has been proposed for the court’sjurisdiction. But significant problems exist inthe current text. Why should the drafters ofthe ICC specifically extend the court ’sjurisdiction over the crime of apartheid? Partof the answer is obviously that apartheid is agrave crime that must be prevented andpunished. Furthermore, the nations of theworld have demonstrated a commitment tofighting apartheid and ensuring its non-repetition through previous U.N. legislation.

Let us begin by considering what the

proposed statute of the ICC covers, and whyit is inadequate for defining apartheid. Theproposed ICC statute includes authority overthe following three core crimes: (1) the crimeof genocide, (2) serious violations of the lawsand customs applicable in armed conflict, and(3) crimes against humanity. Under debate arethe inclusion of the crime of aggression andtreaty-based crimes. Apartheid is onlyspecifically mentioned in the “treaty” section,which may be excluded from the final statutebecause of debate over whether some of thesecrimes fall under international law andwhether their inclusion would overburdenthe ICC’s limited resources.

If the treaty section is deleted, apartheidwould not be mentioned at all in the ICCstatute. However, given that apartheid wasdeclared a crime against humanity in the1973 International Convention on theSuppression and Punishment of the Crime of

Apartheid, continued on page 14.

International Cooperation, Judicial Assistance and the ICC

by Eric Odoi-Anim

The possibility of establishing apermanent International Criminal Court is nolonger a matter of doubt. While the ideacontinues to gather momentum within thecommunity of nations, it has also generatedintense interest and consequently broaderparticipation by a large number of non-governmental organizations.

That the idea has become receptive andenjoys significant support within theinternational community is traceable to ahost of factors in the immediate past, and alsodevelopments in the aftermath of the ColdWar.

The atrocities of World War II continuedto haunt the international community, andwith this spectre was an ever-nagging need toestablish a permanent universally-recognizedjudicial body to dispense justice to individualsand groups of individuals guilty of heinouscrimes such as genocide, war crimes andcrimes against humanity.

In the immediate aftermath of the ColdWar, the break-up, dissolution, anddisintegration of States in Eastern Europe,notably in the Former Yugoslavia, generatedviolence and atrocities of sickeningproportions. This jolted the internationalcommunity into rekindling and intensifyingefforts toward the establishment of aninternational court to bring to justiceindividuals whose acts constitute an affront tothe dignity of humankind.

Elsewhere in Africa the process ofdeveloping and consolidating structures forgovernance continues to generate violenceand mass dislocations of population alongethnic lines. The situation has led tosystematic violations of basic rights on amassive scale and the perpetration of massmurders with impunity.

In the above instance too, the need for apermanent international organ to holdindividuals accountable for such atrocities hasequally been emphasized throughout theInternational Community.

Much work has been done on the draftstatute for the proposed court prepared by theInternational Law Commission. The Ad HocCommittee and subsequently the PreparatoryCommittee have held working sessions on thedraft statute with a view to preparing a widelyacceptable consolidated text of a conventionfor an International Criminal Court.

The draft statute focused on almost all theelements necessary for the establishment ofan organ of competent criminal jurisdiction,acceptable to states with different legalsystems. In the process, procedural details andalso substantive and organizational detailshave been laid out. Substantive issuesincluding the court ’s jurisdiction, thedefinition of crimes, principles ofinternational criminal law, triggermechanisms and international cooperationwill continue to be under intense scrutiny atthe forthcoming session of the PreparatoryCommittee.

The issue of international cooperationand judicial assistance needs to be particularlyaddressed. It is most essential for an effectivefunctioning court. Within the broadframework of this concept stipulated in PartSeven of the draft statute, are details with

regard to the following: General Obligation ofStates to Cooperate with the Court, Co-operation by Non-state Parties, Obligation toProvide Judicial (Mutual) AssistanceTypes/Categories of Assistance, Surrender,recognition and enforcement of sentences,amongst others.

The experience of the InternationalTribunal For The former Yugoslavia must ofnecessity guide the collective efforts of theInternational Community as it addressesmatters relating to international cooperationand judicial assistance in relation to theproposed International Criminal Court.

Since it’s inception in 1993, though theYugoslav Tribunal has issued 75 indictmentsin connection with atrocities committed inthe territory of the former Yugoslavia, onlyeight arrests or surrenders have been made.[See page 13. - ed.] It is worth noting that oneof the individuals currently arraigned beforethe Yugoslav Tribunal gave himself up to theTribunal, his presence may not therefore bethe outcomes of international cooperation orany other form of judicial assistance.

The present image of ineffectivenesssurrounding the Yugoslav Tribunal is not theoutcome of lack of precise language or legalexpertise to spell out the constituents ofinternational cooperation, but is evidence ofthe interplay of forces and attitudes beyondthe reach of legal draftsmanship.

The situation painfully reminds us thatindividuals or groups who have committedatrocities fifty years after Nuremberg still walkwith impunity in the midst of the very groupsand persons they subjected to inhumanities.

Painful as it is, it must serve to strengthenthe resolve of world community as weconsider issues relating to InternationalCooperation and judicial assistance, withinthe framework of a permanent internationalcourt.

Discussions on international cooperation,must go beyond “fine tuning” the language ofthe draft text. Bold, new and practicalinitiatives must be explored. These must ofnecessity include the role of NGOs in thecollection of evidence and of its presentation.This may be attained through a framework ofcooperation between NGOs and the office ofthe Prosecutor within a definitive set of rules.

The view has been expressed thatessential elements of the expectedcooperation between states and the Courtshould be presented in such a manner as tomake it explicit and devoid ofmisconstruction by both the Court and theStates to whom the request is addressed. Thisis well stated.

In the view of this writer, the first andmost significant step towards cooperation, inaddition to the above, must focus also on themeans for addressing structural and technicalweakness apparent in the legal systems ofmost developing countries, at least in respectof obligations required of them within thescope of cooperation and mutual judicialassistance vis-a-vis a permanent InternationalCriminal Court.

It is an exercise in futility to expect co-operation from a legal system without thecapacity to meet the basic requirements orelements inherent in such cooperation.

The degree of cooperation states havedemonstrated in respect of the presentlyconstituted ad hoc tribunals, proves that thereis an urgent need to further sensitize thecommunity of states on both the short andlong term implications of the need to accordthe obligation to cooperate the highestpriority.

The obligation to cooperate mustnecessarily entail constant focusing on, andconsistent interpretation of, the essentialprinciples which constitute the bed-rock ofinternational cooperation and judicialassistance. It must also involve massivecoordination of effort at all levels by all actorson the international scene both within andout of their respective countries. Politicalauthorities must be constantly reminded ofthis urgent obligation; this way it would be apossibility in the near future to bring tojustice those who have committed variousatrocities against humanity.

Mr. Eric Odoi-Anim is a Counsellor at themission of Ghana to the United Nations and amember of the Ghanian delegation to thePreparatory Committee on the Establishment ofan ICC. Views expressed here are the author’sown and do not necessarily represent the positionof the government of Ghana.


From Article 51 of the ILC Draft Statute on theICC:

Cooperation and judicial assistance

1. States parties shall cooperatewith the Court in connection withcriminal investigations andproceedings under this Statute.

2. The Registrar may transmit toany State a request forcooperation and judicialassistance with respect to acrime, including, but not limitedto:

(a) the identification andlocation of persons;

(b) the taking of testimonyand the production of evidence;

(c) the service of documents;(d) the arrest or detention of

persons; and(e) any other request which

may facilitate the administrationof justice, including provisionalmeasures as required.

3. Upon receipt of a requestunder paragraph 2:

(a) in a case covered byarticle 21 (1) (a), all Statesparties;

(b) in any other case, Statesparties which have accepted thejurisdiction of the Court withrespect to the crime in question;

shall respond without undue delayto the request.

ABCs OF THE ICC

WHO’S THE BOS? The Members of the ICC PrepCom Bureau

NGO Coalition for an InternationalCriminal Court

c/o WFM, 777 UN Plaza, 12th FloorNew York, NY 10017 USAPhone: 212-687-2176 • Fax: 212-599-1332email: [email protected]

ICC PrepCom ChairAdriaan Bos, TheNetherlands

Head of delegation for TheNetherlands. Legal Adviser ofthe Ministry of ForeignAffairs. Member of thePermanent Court ofArbitration.

Vice-ChairCherif Bassiouni, Egypt

A member of the delegationof Egypt to the PrepCom anda law professor at DePaulUniversity in Chicago, USA.He is President of theInternational Institute ofHigher Studies in CriminalSciences based in Siracusa,Italy.

Vice - ChaSylvia AGurmen

First SecretMission torepresentat(Legal) ComGeneral As

What is the ICC

The proposed International Criminal Court is a permanentjudicial tribunal with a global jurisdiction to try individuals forgross breaches of international humanitarian law. Unlike theInternational Court of Justice, whose contentious jurisdiction isrestricted to States, it will have the capacity to indict individuals;and unlike the Rwandan and Yugoslavian War Crimes Tribunals,its jurisdiction will not be chronologically or geographicallylimited. Hence, for the first time, there is the prospect ofcreating a positive global duty on individuals to respect the ruleof law. Structure of the Court

As proposed in the current draft statute, the ICC’s organs will be asfollows:

The Presidency will be composed of a President, two Vice Presidents andtwo alternate Vice Presidents, each of which will be chosen by the Court’sjudges for a term of three years. They will have overall responsibility forthe court’s management, as well as important pre-trial and post-trialjudicial functions.

The Trial and Appeals Chambers will have 18 judges, elected by an absolutemajority vote of the states parties to the treaty. Judges will hold nine yearterms without the possibility for re-election. No two judges could benationals of the same state. The draft statute also specifies that therepresentation of the principal legal systems of the world should beassured in the election of the judges.

The Procuracy will carry out the investigative and prosecutorial functionsof the court. It will be composed of the Prosecutor, one or more DeputyProsecutors and other staff if required.

The Registry will be the administrative organ of the court. The Registrarhas important functions under the draft statute as a depositary of variousnotifications and a channel for communication with states.

Why an ICC is Needed

At present there is no permanent mechanism by whichindividuals can be held accountable for violations of internationallaw. In such situations, the world’s only recourse is to imposesanctions, embargoes or use military force. These are bluntinstruments that may hurt innocent civilians much more than theoffending individuals. By focusing the rule of law more preciselyon individual lawbreakers, international law would become morejust and more effective.

An ICC could deter future genocidal dictators from slaughteringtheir own citizens. The maintenance of international peace wouldalso greatly benefit from the existence of an ICC. United Nationspeacekeepers can stop wholesale slaughter by placing themselvesbetween the warring sides. However, as we have seen in Somalia,Bosnia, Rwanda, Haiti and other places around the world, thehatred that fuels the fighting does not go away only because theshooting has stopped. The cycles of violence continue so long asthe people involved feel that justice has not been served.

Current Status

In December 1995, the General Assembly called for the creation of aPreparatory Committee (PrepCom) to meet twice in 1996 to discuss anddraft text with “a view to preparing a widely acceptable consolidated textof a convention for an ICC as a next step towards consideration by aconference of plenipotentiaries.” The Preparatory Committee met twicein March-April and August in 1996, discussing major substantive issuesand drafting concrete texts for consideration.

In late 1996, impressed by the results of the negotiations, the GeneralAssembly adopted a resolution slating for 1998 a diplomatic conferenceto adopt a treaty establishing the ICC. Italy has offered to host theconference in June 1998 in the city of Rome. The General Assembly alsocalled for a nine more weeks of PrepCom meetings to occur in 1997 and1998 “in order to complete the drafting of a widely acceptableconsolidated text of a convention to be submitted to the diplomaticconference.”

Currently, the Preparatory Committee is in its fourth session, scheduledfor August 4-15 at UN Headquarters. Two more sessions are scheduled forDecember 1-12, 1997 and March 16- April 3, 1998.

1997 ICC CALENDAR

JUL

SEP

AUGUST 4-15.FOURTH SESSION OFTHE ICCPREPARATORYCOMMITTEE. NewYork City, USA.

NOV

DEC

OCT

AUG

DECEMBER 1-12.FIFTH SESSION OFTHE ICCPREPARATORYCOMMITTEE. NewYork City, USA.

July 31-August 2.Annual Meeting ofthe American BarAssociation. SanFrancisco, California,USA. Contact: +1-312-988-5000.

September 17-21. "Reigning in Impunity for InternationalCrimes and Serious Violations of Human Rights." Siracusa, Italy.Held by the International Human Rights Law Institute of DePaulUniversity. Attendance: limited to government representativeswith national delegations in their individual capacity and whoexpress interest in the subject. Contact: Prof. M. Cherif Bassiounior assistant Tabita Sherfinski +1-312-362-5922.

December 7-13. Women, Human Rights,Culture and Tradition. London, UK. BritishCouncil International Seminar. Contact:The British Council, Seminar ReferenceNumber: 97063, tel: +44-1865-31-66-36, email: [email protected].

July 2-5. Fourth Hague Joint Conference.Contemporary International Law Issues:New Forms, New Application. The Hague,The Netherlands. Sponsored by theAmerican Society of International Law andNederlandse Vereniging voorInternationaal Recht.

September 16 -December. Fifty-Second session ofthe UN GeneralAssemblyconvenes. NewYork City, USA.

OCTOBER 24.

UNITED NATIONS DAY

DECEMBER 10. HUMAN RIGHTS DAY. Anniversary of the UniversalDeclaration of Human Rights. ContactMichael Cooper at the Franklin &Eleanor Roosevelt Institute for moreinformation,tel: +1-212-907-1332.

November 12-21. UNCommission on HumanRights Working Group onEnforceed or InvoluntaryDisappearances. Geneva,Switzerland. 53rd Session.

November 26-December 5. UNCommission onHuman RightsWorking Group onArbitrary Detention.Geneva, Switzerland.

July 21-August 1. UNCommission on HumanRights Subcommission onthe Prevention ofDiscrimination andProtection of Minorities.Geneva, Switzerland.

August 18-22. UNCommission on HumanRights Working Groupon Enforced orInvoluntaryDisappearances. Geneva,Switzerland. 52nd Session.

September 15-19.UN Commission onHuman RightsWorking Group onArbitraryDetention. Geneva,Switzerland.

October 28. Colloquium on the Progressive Developmentand Codification of International Law. New York City,USA. Attendance: legal advisers of States, representatives tothe Sixth Committee (Legal) of the General Assembly,current member s of the International Law Commission, andinvited experts. Contact: Codification Division of the Officeof Legal Affairs (UN) +1-212-963-5345.

July 27-August 1 “Law & Justice: WhereNow?” London, United Kingdom. The Societyfor the Reform of Criminal Law 10th AnniversaryConference. Contact: Society ConferenceSecretariat, c/o Blair Communications &Marketing. 117 Regent’s Park Road, London NW18UR, UK. Tel: +44 171 722 9731.

Vice - ChairSylvia A. Fernández deGurmendi, Argentina

First Secretary of the ArgentineMission to the UN andepresentative to the SixthLegal) Committee of the UN

General Assembly.

Vice - ChairMarek Madej , Poland

Counsellor and Legal Adviserat the Permanent Mission ofPoland. Covers legal andprotocol matters as well as theSecurity Council's sanctionsregimes. Has been with theMission since 1992.

Other Officers & SecretariatRapporteurMasataka Okano, Japan. Assistant Director, Legal Affairs, Ministryof Foreign Affairs.

SecretaryRoy Lee. Director of Codification of the UN Office of Legal Affairs.Also Secretary of the International Law Commission and the Sixth(Legal) Committee of the General Assembly. Joined UN in 1967 inthe Division of Human Rights. Became Secretary of the FirstCommittee of the Third UN Conference on the Law of the Sea in1972. In 1982 moved to the Office of Legal Affairs as the PrincipleLegal Officer of the Office of the Legal Counsel.

Deputy Secretary Manuel Rama-Montaldo. Deputy Director for Research andStudies of the UN Office of Legal Affairs.

September 16.InternationalDAY OF PEACE

November 25 - December 10. “Sixteen Days ofActivism Against Gender Violence.” The Launchingof the 1998 Global Campaign for Women’s HumanRights. New York event December 8 at St. Clement’sChurch. Contact: the Center for Women’s GlobalLeadership +1-732-932-8782.


This article is a reprint of an articlethat appeared in the Fall 1996 issueof the Human Rights Brief bypermission of the author.

The International War CrimesTribunal seems headed forfrustration and disappointment inthe former Yugoslavia. SerbsRadovan Karadzic and RatkoMladic, and Croat Dario Kordic,who have been indicted for theYugoslav atrocities, will probablysuccessfully avoid being broughtto justice. Despite numerousopportunities, the NATOImplementation Force (IFOR) hassteadfastly refused to take theminto custody. As recently asOctober 29, 1996, RepublikaSrpska President Biljana Plavsicdeclared that her government hadno intention of turning Karadzicand Mladic over to the Tribunal.There is no sign that things willchange.

The result is what oneobserver called, “an exercise inhigh cynicism,” a repeatedrhetoric of support for theTribunal but a consistent patternof obstruction.

The way to salvage somethingin this situation is to try theseindicted war criminals in absentia,without their being physicallypresent. Such trials are notuncommon in Europe, includingthe former Yugoslavia.

Indeed, in the NurembergWar Trials, the models for theYugoslav Tribunal, Hitler ’ssecretary, Martin Bormann, wastried, convicted, and sentenced todeath in his absence. There, thestatute establishing theInternational Military Tribunalexplicitly authorized such trials.Although the text of the statuteestablishing the Yugoslav Tribunaldoes not explicitly authorize trialsin absentia, it does permit them.The latter statute gives thedefendant the right to be “tried inhis presence,” but as with almostall rights, he can waive it,especially if he absconds orotherwise deliberately makeshimself unavailable.

This view, admittedly, is notthe prevailing one. Those whohave commented on the issue,almost without exception, havesaid that the statute does notpermit such trials. Those who takethis view have relied almostentirely on the May 3, 1993Report of the United NationsSecretary General pursuant to UNResolution 808 in which hestated: “A trial should notcommence until the accused isphysically present before theinternational Tribunal. There is awide spread perception that trialsin absentia should not be provided

for in the statute as this would beinconsistent with Article 14 of theInternational Covenant on Civiland Political Rights whichprovides that the accused shall beentitled to be tried in hispresence.”

As the excerpt makes clear,there is no doubt that theSecretary General did not thinktrials in absentia are appropriate.His reasoning, however, is basedon a mistaken understanding ofthe International Covenant. As farback as 1983, the Human RightsCommittee, which applies theConvention, clearly stated thatArticle 14 does not present a barto trials in absentia, saying:“Indeed, proceedings in absentiaare in some circumstances (forinstance, when the accusedperson, although informed of theproceedings sufficiently inadvance, declines to exercise hisright to be present) permissible inthe interest of the properadministration of justice.”

Certain procedural provisionsin the Tribunal’s statute do seemto contemplate the defendant’spersonal appearance, but similarprovisions in the Italian and otherprocedural codes have not beenseen as bars to in absentia trials ofabsconding defendants.

In sum, the language of thestatute does permit such trials,and under the circumstances,there is no reason to go behindthat language and limit theTribunal, especially because thatsame history indicates that at leastsome members of the SecurityCouncil wanted such proceedings.Otherwise, it will be necessary toamend the statute, and that couldbe very difficult at this time.

If a conviction can beobtained, its advantages over anindictment are substantial. Aconviction is a formalcondemnation arrived at after acareful sifting and evaluation ofthe evidence for and against theaccused. An indictment, on theother hand, is only an unprovedcharge.

Even the half-way measureadopted by the Tribunal – apreliminary examination of theevidence under Rule 61 todetermine whether there isenough evidence to issue an arrestwarrant – will only serve to makethe world aware that there is someevidence to support theallegations. The outcome of sucha proceeding is still only a set ofcharges and not a final conclusionof culpability. Any country thatwants to avoid its responsibilitiestoward the Tribunal will be able torely on that distinction. Manyalready seem to want to do so,and as time passes there will be

more, as nations have aremarkable capacity toaccommodate themselves to evilsperpetrated by other countries. Ajudgment of conviction arrived atin accordance with conventional,generally acceptable procedures,backed by the prestige and statusof the Security Council, is muchharder to ignore, particularly inEurope, where it is mostimportant. It is in Europe, afterall, where most of the activities ofSerbia, Bosnia and the rumpSerbian Republic will take place.

Institutions like the Councilof Europe and the Organizationon Security and Cooperation inEurope are also more likely tolend their support to a formaljudgment, and it will be far easierfor the Security Council and theCouncil of Europe to takeenforcement measures.

Claims of unfairness for beingconvicted in their absence wouldlie particularly poorly in themouths of Karadzic, Mladic, andthe others. They have voluntarilychosen to absent themselves, indefiance of their obligations underinternational law and the DaytonAgreements, of which Karadzic, atleast, implicitly approved byauthorizing Yugoslav PresidentSlobodan Milosevic to negotiatefor him. Moreover, they are notunfamiliar with trials in absentia,for they are well-established in theformer Yugoslavia and itssuccessor states. Such trials wererecently held in Croatia and arenot infrequently held in France,Italy and other countries inEurope.

Even the United States allowstrials in the absence of theaccused if he is disruptive orabsconds, as long as he waspresent at the initiation ofproceedings. Rule 43(b) of theFederal Rules of CriminalProcedure allows a trial to takeplace “and the defendant shall beconsidered to have waived theright to be present whenever adefendant, initially present, (1) isvoluntarily absent after the trialhas commenced.” The “initialpresence” requirement – whichmany courts had dispensed withprior to a Supreme Court decisionin 1993 – is designed to ensurethat the accused has notice of thecharges and proceedings. The“initial presence” requirement isnot constitutional, but onlyrequired by the Federal Rules ofCriminal Procedure, andtherefore, American state courtsneed not require it. In fact, somestate courts have gone ahead withtrials in absentia despite thedefendant not having beeninitially present, when there wasno doubt that the defendant had

made an “intelligent and knowingwaiver” of the right to be present.Because there is no doubt aboutthe Yugoslav and Croatiandefendants ’ awareness of thecharges, there is no reason toinsist on the formality of aninitial appearance whereproceedings before the Tribunalare concerned.

Indeed, Karadzic already hasAmerican lawyers present at theproceedings and they have raisedsome substantive defenses. TheTribunal would certainly bewilling to allow them toparticipate fully if trials in absentiawere held. Furthermore, moderncommunications make it possiblefor the lawyers to communicateinstantaneously with thedefendants any time they find itnecessary. And if these defendantsever become available for trial,according to conventionalpractice, the judgments will be setaside and a new trial held.

Obviously, trials in absentiaare not what we would prefer,though it is likely that in a civillaw system, the prosecutionsuffers disadvantages from such aproceeding as much if not morethan the defendant, because theprosecution’s case often reliesheavily on testimony by thedefendant himself. If the attitudesof the states involved change andthose indicted are somehowbrought before the Tribunal, therewill be no need for such trials.Unless and until that happens,however, trials in absentia arebetter than ignoring thedefendants defiance. Otherwise,the impunity successfullyachieved by Karadzic and theothers may provide a reason forthe former Yugoslav countries torefuse to turn over those whomight be available.

The Tribunal was establishedby the world community to serveas a step in the process of bringingan anarchic world communityunder the rule of law. If thetribunal needlessly allows theperpetrators of some of the worstcrimes of this bloody century tothumb their noses at it, it willhave done both world peace andinternational justice far moreharm than good.

Dr. Herman Schwartz is a Professorof Law at the Washington College ofLaw at American University inWashington DC. He is a leadingadvocate of civil liberties andprsoners’ rights in the United Statesand the Co-Director of the Center forHuman Rights and HumanitarianLaw.

Trying War Criminals in Absentia

by Dr. Herman Schwartz


Canada

The Canadian Network for anInternational Criminal Court isan information-sharing networkmade up of about 200 CanadianNGOs, individuals, academics,government officials andparliamentarians. The CNICCorganizes NGO briefings,publishes ICC Updatenewsletters, maintains acatalogue of up-to-datedocuments, and sponsors publicmeetings on the development ofan ICC as well as on progress ofthe ad hoc Tribunals for Rwandaand the Former Yugoslavia. TheNetwork also works closely withthe international non-governmental campaign lobbyingfor an ICC, the Coalition for anInternational Criminal Court(CICC).

On April 25 the CanadianNetwork sponsored a meetingwhich discussed the Third Sessionof the Preparatory CommitteeMeeting on the Establishment ofan International Criminal Court(Resource person: Peter McRae,Legal Operations Division,Department of Foreign Affairsand International Trade); andthe International CriminalTribunals for Rwanda and TheFormer Yugoslavia (Resourceperson: Prof. William Schabas,Université du Québec Montréal).Approximately two dozen CNICCmembers attended. The meetingwas held at the Department ofForeign Affairs.

At the ICC PrepComs,Canada has taken a leadershiprole among the “group of like-minded” states in promotingestablishment of an independentand effective Court. CNICCmembers are encouragingCanadian officials to push for anendorsement of the ICC atupcoming meetings of theCommonwealth andFrancophonie. Declaratorysupport for an ICC from thesetwo international organizationswould have a number of positiveeffects:• It would raise awareness of

the importance of theestablishment of a CriminalCourt.

• It would strengthen andenhance participation bymember states at the ICCPrepComs and at the 1998diplomatic conference.

• There would be greateropportunities forcollaboration between NGOnetworks advocating an ICCand kindred NGOs based inother countries. Prospectswould be enhanced forratification of a future ICCtreaty.

France

On June 19, 1997, No PeaceWithout Justice launched itscampaign to support theestablishment of theInternational Criminal Court atthe French Sénat at the Palais duLuxembourg in Paris. The two-day campaign was the first ofseveral regional conferencesintended to garner support andencourage dialogue amonggovernment officials and NGOsnecessary for the creation of anICC.

The Paris conference wasattended by over 50 prominentEuropean politicians, diplomats,jurists, and officials of the UnitedNations and the EuropeanCommission such as SenatorRobert Badinter, former Presidentof the Constitutional Council ofFrance; Ms. Emma Bonino,European Commissioner forHumanitarian Aid; Mr. JacquesBaudin, the Prime Minister ofSenegal; Dr. Boutros Boutros-Ghali, former Secretary Generalof the United Nations; and Mr.Laity Kama, the President of theInternational Criminal Tribunalfor Rwanda. NGO participantsincluded representatives from theCoalition for an ICC, theEuropean Law StudentsAssociation, FédérationInternational des Ligues de Droitsde l 'Homme, Human RightsWatch, Lawyers Committee forHuman Rights, andParliamentarians for GlobalAction.

Cherif Bassiouni began thefirst panel on the ad hocCriminals Tribunals and the ICCby asking, “Is justice one of thefundamental values of theinternational community... and isit a goal to be pursued by theinternational community?” Instriving to attain justice, both Mr.Giovanni Conso, the formerMinister of Justice of Italy, andMr. Kama suggested that theinternational community assistthe International CriminalTribunals (ICTs) to achieve theirgoals and learn from the ICTs'successes and difficulties. Mr.Conso suggested concentratingon the most serious crimes andon trying the “big fish.” Mr.Kama discussed the need toimplement witness protection. In

closing the first day, Ms. Boninodeclared that “it is good to insiston the fixation of the date [of theICC treaty conference] becausesometimes institutions tend toforget their commitments” andshe reminded us of the urgencyof creating the ICC because “thecourt is often invoked, likerecently for Pol Pot, but,unfortunately it does not yetexist!”

On the second day of theconference, NGOs and officialsappealed to the participants totake action toward theestablishment of the ICC. Mr.Boutros-Ghali stated that “he wasproud he was in office when theUN established the twointernational tribunals” and that“the time has come to keep themomentum and organize aninternational mobilization of thepublic.” Senator Badinter opinedthat since the Yugoslavia case“the public opinion has reactedagainst impunity” and that “theonly possible dissuasion impliesan international jurisdiction. Theestablishment of the ICC shouldbe the major goal of theinternational community for thefin de siécle.”

After two days of debate,participants re-launched a solemnappeal to the Member States ofthe UN to do their utmost tobring to justice criminals in theformer Yugoslavia and Rwandaand to confirm the 1998 date forthe treaty conference to establishthe ICC.

Agreeing on the three corecrimes of crimes againsthumanity, war crimes andgenocide, participants alsoaffirmed that the creation of thecourt is a political matter thatonly the Diplomatic Conferencecan achieve.

No Peace Without Justiceplans to hold over the next twoyears a series of regionalconferences in Malta, Siracusa,Montevideo, Atlanta, Rome, NewYork, and Dakar. For moreinformation, contact No Peacewithout Justice at +1-212-980-1031.

Nigeria

[by Clement Nwankwo of theConstitutional Rights Project]

My participation at theFebruary session of the ICCPrepCom was a very enlighteningand important experience,expecially against the backgroundof little awareness among non-governmental organisations andgroups within the Africancontinent of the efforts beingmade to establish a permanentinternational criminal court.

Given the human rights crisiswithin Africa, the potential andindeed reality of conflicts andconsequent perpetration of thekinds of crimes being discussedfor inclusion within thejurisdiction of the ICC is apractical problem confronted bylocal human rights groups on aregular basis.

During the February session,it was useful to see the process atwork and observe the nature ofdebate and discussion of thevarious provisions in the draftdocument being put together. Iwas particularly interested inobserving some of the activeAfrica government delegationsinvolved in the proceedings. Itconcerned me however, thatsome African states were notparticipating in the session or notgiving the proceedings the kindof attention that it deserves. Iwas able to meet formally andinformally with some of the moreactive African delegates,including delegates from SouthAfrica, Ghana, Malawi, Lesotho,Tanzania, and Uganda, and wasvery impressed with theseriousness that they attached tothe PrepCom and thecontributions they were makingin the session meetings. Thesedelegates however agreed thatAfrican interest in the PrepComeven from the governmental sideneeds to be strengthened. We allagreed that the level of awarenesswill also improve if more NGOsfrom the African continent areencouraged and supported toattend future PrepComs.Awareness will also be improvedin the continent if regionalmeetings such as the sessions ofthe African Commission onHuman and People’s Rights, thatbrings together several humanrights NGOs, are used as vehiclesto spread awareness.

It is my hope that moreAfrican NGOs will become awareof and involved in the majoreffort that is being done to deterthe violation of human rightsthrough the ICC.

United States

Amid accelerating events anda heightened sense of urgency,the Washington Working Groupon the International CriminalCourt (WICC) met on May 6,1997. The February PrepCom haddefinitively shown the waytoward the ICC treaty. It hadcleared the negotiating path andreconfirmed the June 1998diplomatic conference.Meanwhile, the recent successfuleffort for the Senate consent to

Regional Reports

Continued on page 14.

On July 10, 1997 a coalitionof leading human rights groupsannounced the launch of a world-wide “Arrest Now!” campaign topress western leaders to order thearrest of the persons indicted forwar crimes in the formerYugoslavia. The launch, joined byorganizations such as HumanRights Watch, AmnestyInternational, the FederationInternationale des Droits del ’Homme, the InternationalHelsinki Federation and theCoalition for InternationalJustice, is timed to coincide withthe second anniversary of the July11, 1995 fall of the so-called “safearea” of Srebrenica which wasfollowed by the massacre ofthousands of its inhabitants.

Press conferences were held inParis, Sarajevo, London andWashington, DC. At these events,open letters from European andAmerican NGOs and prominentindividuals were released callingon political leaders to order thearrest of the war crimes suspects.

Citing Srebrenica as a symbolof both the atrocities committedduring the war in Bosnia and

Hercegovina and of the inactionof the international communityin halting the slaughter, theEuropean open letter calls onwestern leaders to ensure at leastthat those responsible for thegenocide are brought to justice.The letter is signed by suchnotables as Valery Giscardd’Estaing, former President ofFrance; Richard Goldstone, formerChief Prosecutor of theInternational Criminal Tribunalfor the Former Yugoslavia; formerUNHCR special envoy in theformer Yugoslavia José MariaMendiluce; actress Julia Ormond;Simon Wiesenthal; MichelRocard, former Prime Minister ofFrance; French Minister of HealthBernard Kouchner; Gijs de Vries,Liberal leader of the Europeanparliament and dozens of others.

The men responsible for theSrebrenica killings and other war-time atrocities "enjoy not onlyfreedom but power," says theletter. "Of 76 persons on all sidesindicted for war crimes in theformer Yugoslavia, only 10 havebeen taken into the custody" ofthe Tribunal. "Many continue to

exert substantial economic andpolitical power, and some arelinked to active paramilitaryorganizations. Through theirobstruction of the return ofrefugees and displaced persons,their suppression of dissent, andtheir control of the media, theypoison the peace process andprevent national reconciliation."

The letter notes that whileNATO-led troops have anobligation to arrest personsindicted for war crimes, “thetroops have not apprehended asingle indicted person.” The letterwarns that “unless those indictedfor war crimes are brought tojustice, they will continue tosabotage the peace process.”[Editor’s note: since the release ofthis letter NATO forces havearrested one indicted war criminalMilan Kovacevic and killedanother indicted war criminalSimo Drljaca in an attempt toarrest him. Mr. Kovacevic wasturned over to the ICTY. See page13.]

In the United States, thebroad-based Coalition forInternational Justice has released

a similar letter to PresidentClinton signed by over 100religious, ethnic, women’s, labor,professional and human rightsorganizations as well as leadingpolitical figures such as formerSenator Bob Dole. Initiating grass-roots campaigning activitiesworldwide, Amnesty Internationalcalled on states to “live up totheir obligations underinternational law to seek out andarrest those indicted.”

“The campaign will continueuntil the suspects are arrested,”said Kenneth Roth, ExecutiveDirector of Human Rights Watch.“NATO knows where these menare and has the legal duty and themeans to apprehend them, butWestern political leaders refuse toorder their arrest. It is time tomove beyond this politicalcowardice and bring theseaccused killers to justice.”

For more information on the “ArrestNow” campaign call +1-212-972-8400.

“Arrest Now!” Campaign Calls for Apprehension of War Criminals inthe Former Yugoslavia


This advertisement appeared in the June 20, 1997 issue of the Rocky Mountain News, to coincide with the Summit of Eight meeting taking place in Denver,Colorado, USA. The Coalition also helped organize a press briefing, a march for justice, and a rally on international justice organized by AmnestyInternational-USA held in connection with the “People’s Summit” in Denver.

General George Joulwan, SACEUR,has released the following statementon behalf of Dr. Javier Solana,Secretary General of NATO:

At approx. 9:30am thismorning [i.e.10 July] SFOR forcesdetained indicted war criminalMilan Kovacevic at the hospital inPrijedor. The detention took placewithout incident.

In a separate detention actionin the vicintiy of Prijedor, indictedwar criminal Simo Drljaca, theformer police chief in Prijedor,opened fire on SFOR soldiers asthey approached and challengedhim for the purpose of detaininghim. One of the SFOR soldiers waswounded in the process. Drljacawas killed when fire was returnedin self-defence.

Both Simo Drljaca and MilanKovacevic have been indicted byICTY for complicity in genocideagainst the Bosnian Muslims andCroats of the municipality ofPrijedor during the period betweenApril 29 1992 and December 311992.

Owing to the official positionsheld by both Drljaca and Kovacevicat various times, SFOR personnelhave had contacts with them in

the course of their duties. Thedetention of these men wastherefore within the terms ofSFOR’s mandate. Kovacevic, thecurrent director of the Prijedorhospital, will be handed over to—and arrested by— the ICTY latertoday prior to his being transportedto the Hague.

SFOR has acted within itsmandate, and in accordance withpolitical guidance.

[According to an ICTY pressrelease: “The indictment allegesthat "during the period from 29April 1992 to 31 December 1992,Milan Kovacevic was both amember of the municipality ofPrijedor Crisis Staff and thePresident of the Executive Board ofthe municipality of Prijedor.”]


Partial List of CICCParticipatingOrganizations This is a partial listing of our more than 175participating organizations. A full list is availableupon request to the Coalition. National networksrepresenting several organizations are signified bybold-face type.

African Law Students-Young LawyersAssociation

ALTERLAWAmerican Bar AssociationAmnesty InternationalAvocats sans FrontieresB’nai B’rith International Baha’i International CommunityBe Active Be EmancipatedCanadian Network for an ICCCarter CenterCenter for Civil Human RightsCenter for Development of International LawCenter for Reproductive Law and PolicyCenter for UN Reform EducationCenter for Women’s Global LeadershipCentre d’Information et d’Etudes sur le RwandaComisión para la Defensa de los Derechos

Humanos en CentroaméricaCommittees for the Defense of Freedom and

Human Rights in SyriaCommittee of Former Nuremberg Prosecutors

for an ICCConstitutional Rights ProjectCoordinating Board of Jewish OrganizationsCounseling and Meditation CenterCrusade Against ViolenceDePaul Institute for Human RightsDrug Free SocietyDutch Human Rights Student AssociationEarthAction

EcuacivisEgyptian Organization for Human RightsEquality NowEuropean Law Students AssociationEuropean Peace MovementEvangelical Lutheran Church in AmericaFédération Internationale des Ligues des Droits

de l’HommeFN-Forbundet / Danish UNAFranciscans InternationalGlobal Policy ForumHelsinki Citizens AssemblyHuman Rights InternetHuman Rights WatchHumanitarian Law CenterILA Committee on a Permanent ICCInstitute for the Study of GenocideInstitute for War and Peace ReportingInterkerkelijk VredesberaadInternational AlertInternational Association of Democratic LawyersInternational Bar AssociationInternational Commission of JuristsInternational Council of Jewish WomenInternational Criminal Defense Attorney’s

AssociationInternational Human Rights Law GroupInternational Indian Treaty CouncilInternational League for Human RightsInternational Peace BureauInternational Service for Human RightsInternational Society for Human RightsInternational Society for Traumatic Stress

StudiesInternational Women’s Human Rights Law

ClinicInternational Women’s Rights Action WatchInternational Women’s Tribune CenterInternational Centre for Criminal Law Reform &

Criminal Justice PolicyIstituto Superiore Internazionale di ScienzeCriminali Lawyers Committee for Human RightsLawyers Committee on Nuclear PolicyLeague of Human RightsLeo Kuper Foundation

Manobik Unnayan ParishadMaryknoll Society Justice and Peace OfficeMédecins Sans Frontieres No Peace Without Justice (TRP)Nonviolence InternationalNuclear Age Peace FoundationNürnberger MenschenrecthszentrumOrdre des Advocats a la Cour de ParisOrganization for Defending Victims of ViolenceOxfamPace Peace Center, Pace Law SchoolParliamentarians for Global ActionProcedural Aspects of International Law

InstituteQuaker UN OfficeRedressRobert F. Kennedy Memorial Center for Human

RightsRussian Association Women LawyersSOS BalkanesStudents Against GenocideThe League for the Defense of Human RightsUnitarian Universalist UN OfficeUnited Church Board for World MinistriesUnited Nations Association - JapanUnited Nations Association - TamilnaduUnited Nations Association - USAUrban Morgan Institute for Human RightsWar & Peace FoundationWashington Office on Latin AmericaWashington Working Group on the ICCWomen’s Information Consultative CenterWomen’s Institute for Leadership DevelopmentWomen, Law and Development InternationalWomens Environment and Development

OrganizationWorld Council of Churches Commission of the

Churches on International AffairsWorld Federalist AssociationWorld Federalist Movement - Institute for

Global PolicyWorld Order Models Project

NATO Troops Apprehend War Criminal in Prijedor

A NATO soldier in Sarajevo.

“Whereas we regret that a death resulted during theapprehensions, we commend the NATO forces on their actions,and encourage them immediately to take action to arrest otherindividuals indicted for war crimes...”

-- Human Rights Watch Press Release, July 10, 1997

coming sessions cannot beoveremphasized. The Court cannotand will not be a panacea for allthe injustices (real or perceived)committed around the world. Onthe other hand, we cannot andmust not set up a whollyineffective Court which is capableof making no more than emptygestures in the face of appallingatrocities being committed. Thatwould be to do a great injustice tothe victims of these crimes.Compromises will be needed if weare to find the right balance so thatwe will have a Court which is botheffective and widely accepted and

respected. Finding that right balance will

be no mean feat, but it can beachieved. The internationalcommunity cannot shy away fromthis task if we are to see theestablishment of the Court at theDiplomatic Conference to be heldin Rome next summer and we willall have to work hard at it betweennow and 1998. The host city wasnot built in a day. Nor will theCourt.

Lionel Yee is the head of delegationfor the government of Singapore in theICC Preparatory Committeenegotiations.

ratification of the ChemicalWeapons Treaty had manyimportant lessons and warnings forlegislative strategy and the ICCtreaty.

The nomination of DavidScheffer as US Ambassador for WarCrimes Issues demonstrated againthe commitment of the ClintonAdministration, and of SecretaryAlbright personally to the ICC andto American participation in it. TheWICC meeting agreed that hisconfirmation hearings will offer anexcellent and unexpectedly earlyopportunity to focus Senateattention on the ICC and itscontext.

Other important indications ofthe ICC’s standing in the UnitedStates include a recent strongresolution of support for the ICCby the American Jewish Congress,progress toward a detailedendorsement of the ICC at thesummer annual meeting of theAmerican Bar Association, andgrowing interest and involvementby other American non-governmental organizations.

The WICC decided to hold abriefing on the ICC forCongressional staff as close aspossible to Mr. Scheffer ’sconfirmation hearings. The WICCalso recognized that the ChemicalWeapons treaty experiencestrongly demonstrated the criticalimportance of early work inconstituencies, especially those ofkey legislators. The Working Groupwill therefore speed up its efforts toreach local groups and chapters ofnational organizations. It will alsoseek out and support localorganizations without national tiesin key constituencies, offeringthem information andencouragement, and participationin the nationwide campaign for theICC treaty in the Senate. TheWICC will next meet in September,following the August PrepCom.

Worldwide

The EarthAction Network inJuly mounted a global campaign in

support of the InternationalCriminal Court to their network of1,600 citizens groups in 143countries.The EarthAction Action Alert callsupon governments to take a strongstand at the PreparatoryCommittee meetings in support ofan International Criminal Courtwhich will:• Have the jurisdiction over the

most serious internationalcrimes: genocide, war crimes,crimes against humanity andaggression.

• Be a genuinely independentbody, with its prosecutor ableto investigate all cases freefrom political pressure.

• Allow cases to be brought bygovernments, individuals andn o n - g o v e r n m e n t a lorganisations—as well as theCourt’s prosecutor.EarthAction has created an

Action Kit for the use of activistsaround the world, including ageneral action alert, aparliamentary alert, a backgroundinformation sheet, an editorialadvisory, a sample “letter to theeditor,” a press release, even acartoon. The alert can be obtainedonline at the Web address http: //www.oneworld.org/earthaction.

The EarthAction Network ’smission is to “enable thousands oforganizations, citizens, journalistsand parliamentarians to acttogether simultaneously aroundthe world on critical global issues.”For more information contactEarthAction, at 15 New Row,Covent Garden London WC2N4LA, UK , Tel. +44-171-497-5300, e-mail: [email protected].

Canada report by Fergus Watt, Francereport by Donna K. Axel and MarcoPerducca, Nigeria report by ClementNwankwo of the Constitutional RightsProject, United States report by JohnWashburn, EarthAction reportexcerpted from Earth Action alert.

Apartheid, arguably apartheidwould fit under the ICC’s “crimesagainst humanity” category. Thetext drafted by the February 1997ICC Preparatory Committee definescrimes against humanity as actsincluding: murder; extermination;enslavement; deportation; enforceddisappearance; torture; rape andother inhuman acts intentionallycausing serious injury to body orhealth. Imprisonment andpersecutions on political, racial andreligious grounds are included inthe current draft, but are still highlydebated.

This description of crimesagainst humanity overlaps with thedefinition of apartheid included inthe 1973 Apartheid Convention, aproud piece of United Nationslegislative history. The conventioncensures, among other things,murder of members of a racialgroup, the infliction of bodily ormental harm, and imprisonment.

However, in addition to theabove, the Apartheid Conventionalso includes “any measure...designed to divide the populationalong racial lines by the creation ofseparate reserves and ghettos forthe members of a racial group orgroups, the prohibition of mixedmarriages among members ofvarious racial groups, theexpropriation of landed propertybelonging to a racial group.”

The Apartheid Convention goeson to decry “measures calculated toprevent a racial group or groupsfrom participating in the political,social, economic and cultural life ofthe country and...denying tomembers of a racial group or groupsbasic human rights and freedoms,including the right to work, theright to form recognized tradeunions, the right to education, theright to leave and return to theircountry, the right to a nationality,the right to freedom of movementand residence, the right to freedomof opinion and expression, and theright to freedom of peacefulassembly and association.” TheConvention even extends thecourt ’s jurisdiction over“persecution of organizations andpersons...because they opposeapartheid.”

In sum, while the internationalcommunity has unambiguouslycondemned apartheid though theconvention, the current draft of theICC statute fails to include thesedefining characteristics ofapartheid. Instead, its section oncrimes against humanity focusesmainly on murder and physicalharm. Undeniably, many black andcolored South African’s were killedand tortured during apartheid.However, all faced deprivation oftheir basic civil liberties. The mostwidespread element of apartheidwas the enforced separation ofpeople based on race, like thelegislation in the South of theUnited States before the civil rightsmovement. Indeed, apartheidliterally means “separateness.” This

sets it apart as a unique crimewarranting specific censure. Thecurrent ICC statute fails to do this.In so doing, it fails to live up to theUnited Nations’ own legislativehistory which victoriously foughtagainst apartheid in favor ofhuman rights and the dignity ofindividuals.

The proposed statute ’sdefinition of crimes againsthumanity is inadequate for oneother reason. Apartheid hasoccurred primarily in the absenceof war. In contrast, althoughinternational customary law hasrecognized that crimes againsthumanity can occur in peace orwar, most such crimes traditionallycome about in the setting of war.Furthermore, in the latest ICC drafttext, one proposed version definescrimes against humanity as crimes“committed as part of a widespread[and] [or] systematic attack againstany [civilian] [population]...[inarmed conflict].” If this versionbecomes the law of the court, thepeacetime commission of apartheidwould logically be excluded frompunishment under the crimesagainst humanity section.

Political leaders pressing seedsof apartheid into the ground maynext harvest genocide. Read theapartheid convention replacing“racial group” with “religiousgroup” and you have a descriptionof the 1935 Nuremberg Laws. Theselaws, from the early days ofpersecution in Hitler’s Germany,included the Reich Citizenship Lawwhich distinguished betweencitizens and residents. Jews inparticular were considered residentsand excluded from many privilegesnow accorded only to citizens. TheLaw for the Protection of GermanBlood and German Honor forbadeboth marriage and sexual relationsbetween non-Jews and Jews. Therelation of apartheid to genocide isa further reason for the statute ofthe ICC to criminalize apartheid.

Separation. Forced otherness.Dehumanization. Apartheid isnothing specific to one country orone period of history.Unfortunately, it has the potentialto sprout and cause miseryanywhere at any time. That is whywe must be like those Michiganstudents who insisted that theshanty symbols stay in the Diaguntil South Africa freed its people.South African apartheid diedbecause of the activism of manyaround the world and thecourageous rejection of apartheidby South Africans. The samevigilance must be applied now toprevent apartheid’s reoccurrenceelsewhere. Incredibly, the crime ofapartheid threatens to be ignoredby the International CriminalCourt. I urge all NGOs to lobby forthe inclusion of the crime ofapartheid in the ICC statute.

Sheri Fink is the cofounder of StudentsAgainst Genocide based in Stanford,California, USA.


Apartheid, Continued from Page 6

Regional, Continued from Page 11

Yee, continued from Page 5

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Recent ICC-related Documents

UNITED NATIONS DOCUMENTS

Report of the International Law Commission:Draft Statute on the International Criminal Court(A/49/10)

Report of the Preparatory Committee on theEstablishment of an International Criminal CourtVolumes I & II (A/51/22 )

February PrepCom Bureau DocumentsA/AC.249/1997/L.5 Decisions taken by the Preparatory Committee atits session held from 11 to 21 February 1997

A/AC.249/1997/WG.1/CRP.1 and Corr.1 Crime of genocide

A/AC.249/1997/WG.1/CRP.5 and Corr.1 Crimes against humanity

A/AC.249/1997/WG.1/CRP.2 and Corr.1 War crimes

A/AC.249/1997/WG.1/CRP.6 and Corr.1Crime of aggression

A/AC.249/1997/WG.1/CRP.4 and Corr.1Crimes of terrorism, crimes against UnitedNations and associated personnel and crimesinvolving the illicit traffic in narcotic drugs andpsychotropic substances

GOVERNMENT DOCUMENTS

Proposal submitted by Belarus : Alternative to thereview mechanism, February 20, 1997

Proposal of Egypt on Crimes Against Humanity,February 1997

Working Paper submitted by Canada, Germany,and the United Kingdom (on IndividualReponsibility), February 14, 1997

Statement by the Representative of Italy to thePreparatory Committee, February 11, 1997

Proposal submitted by the Syrian Arabic Republicto be included in the draft consolidated text onwar crimes, February 21, 1997

Proposal Submitted by the United States,February 14, 1997

NON-GOVERNMENTAL ORGANIZATIONDOCUMENTS

Amnesty InternationalThe International Criminal Court, Making theRight Choices- Part I, Defining the crimes andpermissible defences and initiating a prosecution,January 19971 Easton StreetLondon WC1 8DJ, UK

The Committee on International Law andthe Committee on International HumanRights of the Association of the Bar of theCity of New YorkReport on the Proposed International CriminalCourt, December 20, 1996

42 West 42nd StreetNew York, New York 10036 USA

The European Law Student’s AssociationThe Road to International Justice EnforcingHuman Rights Law through InternationalCriminal Tribunals, August 1996239 Boulevard General JacquesB-1050 Bruxelles Belgium

Fédération Internationale des Ligues desDroits de l’HommePosition Paper, August 199717 Passage de la Main D’or75011 Paris, France

Human Rights WatchAction Alert: The International Criminal Court,April 1997485 Fifth AvenueNew York, New York 10017 USA

International Commission of JuristsImmediate Support for the Establishment of anEffective, Independent, and ImpartialInternational Criminal Court is Needed to Endthe Cycle of Impunity, September 26, 1996PO Box 160-26 Chemin de Joinville1216 Cointrin, Geneva, Switzerland

International Committee of the Red CrossUnited Nations General Assembly 51st Session,Sixth Committee, Agenda item 147Establishment of an International CriminalCourt, October 28, 1996

International Peace BureauPosition Paper on the ICC, August 199741 rue de Zurich1201 Geneva Switzerland

Lawyers Committee for Human RightsCrimes Within the ICC ’s Jurisdiction andEssential Elements of their Definitions, February1997330 Seventh Avenue, 10th FloorNew York, New York 10001 USA

No Peace Without JusticeReport on the No Peace Without JusticeConference in Paris, July 1997866 UN Plaza #408New York, New York 10017 USA

Nuclear Age Peace FoundationNuclear weapons, the International Court ofJustice, and the proposed International CriminalCourt, April 19971187 Coast Village Rd, #123 Santa Barbara, CA 93108, USA.

RedressPromoting the Right of Survivors of Torture toReparation: A Role for a Permanent InternationalCriminal Court? Conclusions of the RedressResearch Project, August 19976 Queen SquareLondon WC1N 3AR, UK

MEDIA ARTICLES & COVERAGE“UN rapporteur calls for international crimecourt,” Agence Fr.-Presse, February 18, 1997

Farhan Haq, “Human Rights: International

Court Focus on Internal Crimes,” Inter-PressService, Global Information Network,.February 19, 1997

Rhonda McMillion, “ABA urges CongressionalAction on Key International Law Issues,”American Bar Association Journal, March 1,1997

“International Criminal Court Underway,”The Guardian (Nigeria), March 4, 1997

Jonathan Power, “It’s Time to Arrest Karadzicand Mladic,” Jakarta Post, March 15, 1997

Gijs de Vries, “Crime of crimes: The onlydeterrent to future war criminals is for thoseindicted today to face immediate arrest andtrial, argues Gijs de Vries,” The Guardian, (UK)March 26, 1997

“Rights groups, law experts form coalition,”The Guardian (Nigeria), April 8, 1997

Sadako Ogata, “A Haven for Refugees,” TheWashington Post, May 4, 1997

“To Prevent More Genocides,” TheWashington Post, May 4, 1997

“UNICEF Executive Director calls for theprosecution of war crimes against children,”UNICEF Press Release, May 9, 1997

Tracy Wilkinson, “War-Crimes ImpunityMakes Case for a Permanent Court,” LosAngeles Times, May 16, 1997

Anthony Lewis, “It Tolls For Thee,” New YorkTimes, June 23, 1997 (Op-Ed)

“Cambodia May Find No Means to Put PolPot on Trial, ” New York Times, June 21, 1997

INTERNET RESOURCES

ICC Web Pagehttp://www.igc.apc.org/icc

ICTY Web Pagehttp://www.un.org/icty

CorrectionIn ICC Monitor issue four, page 5, in thearticle “Women’s Caucus Brings CrimesAgainst Women to Forefront of Debate” thesentence:

“The primary areas of concern for women theICC include : the inclusion of crimes againstwomen such as trafficking of women, forcedprostitution, forced pregnancy, and rape as awar crime in the court’s jurisdiction;”

should have read as follows:

“The Caucus primarily focuses on: defining andelaborating the crimes under the jurisdiction ofthe court to incorporate gender concerns;”

NGO Coalition for an InternationalCriminal Courtc/o WFM, 777 UN Plaza,12th FloorNew York, NY 10017 USAPhone: 212-687-2176Fax: 212-599-1332email: [email protected]

For More Information/EndorsementName & Title

Organization

Address

Phone / Fax

Email

o My organization would like to be a participating organization of theNGO Coalition for an ICC.

o My organization endorses, in principle, the establishment of apermanent International Criminal Court, however does not wish tobe a participating organization of the Coalition.

o Please keep me / my organization informed about the work of theCoalition and progress on the ICC negotiations.

Please return this form to: NGO Coalition for an ICC, c/o WFM,777 UN Plaza, 12th Floor, New York, NY 10017, USA. Fax: 1-212-599-1332.

The main purpose of the NGO Coalitionfor an International Criminal Court is toadvocate the creation of an effective and justInternational Criminal Court. The Coalitionbrings together a broad-based network ofNGOs and international law experts todevelop strategies on substantive legal andpolitical issues relating to the proposedstatute. A key goal is to foster awareness andsupport among a wide range of civil societyorganizations: human rights, internationallaw, judicial, humanitarian, religious, peace,women’s, parliamentarian and others. Tothese ends, we engage in the followingactivities:

• Convene the Coalition and its workinggroups, such as the ad hoc Tribunal/ICCfunding working group, information/media working group, and a workinggroup on US strategies.

• Maintain a World Wide Web page,international computer conferences and

listserv email lists to facilitate theexchange of NGO and expertdocumentation and informationconcerning the ad hoc Tribunals and theICC negotiations and to foster discussionand debate about substantive issues arisingfrom the negotiations for establishing apermanent International Criminal Court.

• Facilitate meetings between the Coalitionand representatives of governments, UNofficials and others involved in the ICCnegotiations.

• Promote education and awareness of theICC proposals and negotiations at relevantpublic and professional conferences -including UN conferences, committee,commission and preparatory meetings.

• Produce newsletters, media advisories,reviews and papers on the developmentsand negotiations.

About the Coalition

To be a “Participating Organization” of theNGO Coalition for an International CriminalCourt, a non-governmental organizationmust simply: (1) endorse in principle thecreation of a just and effective InternationalCriminal Court and (2) wish to be involved atsome level with efforts to create an ICC. TheCoalition has no individual members.

There is no membership fee to join theCoalition. However we encourage members tosupport the Coalition as they are able.

In general, the Coalition does not takepositions, but serves to raise awareness of thepositions of our members.

To join the CICC, fill out the form belowand return to the CICC secretariat.

To Join the Coalition

V i s i t o u r Wo r l d W i d e We b P a g e a t h t t p : / / w w w. i g c . a p c . o r g / i c c

CICC Online

The NGO Coalition has recently renovatedits World Wide Web Page on the InternationalCriminal Court. Our Web Page enables anyoneon the internet to access relevant ICCdocumentation from the United Nations,national governments, non-governmentalorganizations and academia. In addition the“front pages” are a good introduction to the ICCissue, its history, current status, and futureprospects. An online version of the ICC Monitoris also on the page. The ICC Web Page can befound at address:

URL:http://www.igc.apc.org/icc

Information of a more timely nature isdistributed over our e-mail distribution list “icc-info”. Anyone with an e-mail address cansubscribe to “icc-info” by sending an e-mailmessage to <[email protected]>. Then, inthe message area type “subscribe icc-info,” andsend it. You should be sent back a messageconfirming your addition to the “icc-info”distribution list and a set of instructions on itsuse.

Users of an APC-affiliated network (IGC,GreenNet, Web) can access our “un.icc”computer conference. From within an APCnetwork, go to your computer conferencingarea. On IGC this is done by typing “c” from themain menu. Then type “un.icc”.

I C C M O N I T O Rn e x t i s s u eOctober 1997 • Issue Six