Index:
I. The (formal) discussions on Elements of Crimes:
1) Genocide
2) War Crimes
II. The (informal) discussion on Elements of Crime (Agression):
III Discussion on the Rules of Procedure and Evidence
1. Introduction
a) French Proposal
b) Australian Proposal
2) Results of the discussion on Procedural Matters - The consent on Part V
a) Confirmation of Charges
b) Disclosure between the parties
Limits of disclosure (Rule 5.19)
Short evaluation
At the PrepCom for the International Criminal Court which took place at UN headquarters in New York , we were following the working group on Elements of Crimes. This session was attended by about 87 UN member states and over 60 NGO´s. The mandate of the PrepCom is mentioned in Art. 9 of the ICC statute.
There it is stated that the elements of Crimes "shall assist the Court in the interpretation and application of articles 6 ( genocide), 7 (Crimes against humanity) and 8 (War Crimes)" and states that they must " be consistent with this statute."
I. The (formal) discussions on Elements of Crimes:
During this PrepCom a couple of interesting proposals toward the classification of the Elements of Crimes for instance by the United States of America (DP.4), Hungary and Switzerland (DP.5), Spain (DP.9) and the International Committee of the Red Cross were presented, but the US proposal was the basis for the discussion at the Conference.
1) Genocide
One of the most important attempts by the US was to reopen the definition of genocide. The Rome Statute of the International Criminal Court, adopted on 17th of July 1998 defines genocide in an adequate and well-tested definition in Article 6, which reproduced the text of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, like the equivalent articles in the Rwanda and Yugoslavia Statutes. The provisions of these statutes have been successfully used in the prosecution of persons charged with genocide.
ICC Statute Article 6 Genocide:
For the purpose of this Statute, "genocide" means any of the following acts committed with intend to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The United States try to change this definition by requiring that an act of genocide, such as killing members of a national, ethnical, racial or religious group has to committed conscious furtherance of a widespread or systematic policy or practice aimed at destroying such group (see the U.S. proposal PCNICC/1999/DP.4 on page 5 in Art. 6 (a)(3): Genocide by killing).
Under the Genocide Convention, it is sufficient that the perpetrator killed members of the group with the intent to destroy it in whole or in part. Both international and national courts have interpreted that to mean that a substantial number of people have to be killed for genocide to be proved. In our opinion the definition of genocide in the Rome Statute already includes clear indication of the intent and knowledge required to prove that a person has committed genocide.
Therefore there is no requirement that the accused had to have committed an act in conscious furtherance of a plan or a widespread or systematic policy or practice aimed at destroying, in whole or in part, a protected group.
We think, that the aim of the US Paper was to severely restrict the ICC`s reach by unnecessarily duplicating the evidentiary requirements that the ICC Prosecutor would have to meet. It would make it very difficult for the Prosecutor to prove successfully a case of genocide before the Court.
Under the Article 6 of the Rome Statute it is also prohibited to forcibly transfer children belonging to a national, ethnical, racial or religious group to another group. Under the US proposal, forcible transfer would be considered genocide only if the children involved were under the age of 15. The specification of a child in international law generally uses the definition of a person who is younger than 18 years old, such as Article 1 of the 1989 Convention on the Rights of the Child. Therefore any lesser age limit would be inconsistent with the existing international law.
2. War Crimes:
The US proposal also included restrictive interpretations of crimes against humanity and war crimes. The discussion on the latter was just at its beginning but will continue at the next PrepCom from 26th of July until the 13th of August 1999 in New York.
At this stage the provisional compromise is:
The United States made detailed recommendations for defining grave breaches (see PCNICC/1999/dp.4/Add.2) and Switzerland and Hungary (see dp.5) submitted a short set of proposals, based largely on a detailed research paper of the ICRC (International Committe of the Red Cross).
The main controversy was whether the Elements of Crimes should define the mental element (mens rea) for each Grave Breach of the Geneva Conventions. The USA argued that it was necessary to prove that the accused intended to commit and the conduct amounting to a grave breach (see dp.4). See for example the definitions in the US-american proposal regarding Art. 8.2 (a)(vi)
The majority of the delegates opposed this US proposal and was in favour of leaving this issue to the court. The judges should resolve this issue by reference of Art. 30 of the Statute. On the controversial issue of the "concept of intent" many delegations said that Art. 30 includes recklessness (dt.: "Fahrlässigkeit") or dolus eventualis to use the terminology of civil law systems.
The definition of torture was also in dispute. Whether a non-official person could commit torture was in dispute and has not been solved yet. A second controversy was about the isue whether torture had to be committed only for specified purposes (see PCNICC/1999/WGEC/RT.2: second page Art 8 (2)(ii)-1: War Crime of torture Subpara 4 in Footnote 7). Finally a majority of the delegates expressed, that torture could be committed for a variety of reasons, including pure sadism, so that the list of purposes should not be exclusive. The provisional wording of Subparagraph 4 is now: "or obtaining any other similar purpose."
II. The (informal) discussion on Elements of Crime (Agression):
This PrepCom will include only one informal plenary discussion which takes place on 22nd of February 1999 within the definition of the Elements of Crimes: there was talked about the Crime of Aggression. Here a German paper called The Crime of Aggression - Some thoughts on the way forward - A very informal "bout de papier" was the basis for the discussion at the Conference. It was a five point plan for the future work on aggression, introduced by the Head of the German Delegation Hans-Peter Kaul:
The participants should
1. make a serious attempt to take stock of where they stand, in order to resolve the current problems;
2. try to understand and analyse why it was not possible to find a solution for a general definition of the Crime of Aggression and the role of the UN-Security Council in Rome;
3. make a fresh start;
4. see to that further efforts do not impair the work on the Elements of Crimes and the Rules of Procedure and Evidence;
5. find an appropriate procedure that incorporates the previous points.
Further reference was made to the German paper A/AC.249/1997/WG.1/DP.20 of 11th of December 1997 (Resolution 3314), on the issue of aggression. In addition Germany expressed its wish to see a full acceptance of the inclusion of a crime of aggression in the jurisdiction of the ICC as 4th Crime.The definition German proposal is based on three main sources:
- The Charter of the UN
- the Nuremberg Charter of 1945 and
- General Assembly resolution 3314 (XXIX) 1974 (=Aggressionsdefinition der Generalversammlung)
It is important to keep in mind that the representatives of a number of Arab and African states agreed in general with the German proposal, but we had the impression that they want to define the crime of aggression only in occurrence with the extensive provisions of the General Assembly resolution 3314 (XXIX) 1974. Bosnia and Hercegowina also proposed an (informal) paper on the definition of aggression. However this paper was not discussed during the sessions in New York.
The PrepComs will not terminate until the ratification of the Rome Statute by 60 states. Until then, 7 of 8 of those states have to accept the new definition of aggression. In the opinion of Richard Dicker, Human Rights Watch, this will end maybe in 10 to 15 years. Among other things, that's why it will take a long time till the completion of the whole process.
III Discussion on the Rules of Procedure and Evidence
1. Introduction
At the Conference, we were following the working group on procedural matters. We attended all formal and about 90 % of the informal meetings. Concerning the informal meeting, it was interesting to observe that the delegation of the United States, which played a key-role in the negotiations on procedural issues, was absent for the whole first week. According to answers by certain delegations and John Washburn from the American Bar Association, the absence of the U.S delegation might be caused by personal and political reasons.
The political reason could be the well-known opposition of the US towards the establishment of a strong ICC. To weaken ist structure it would be more helpful for US delegates to attend the Elements of Crime discussion, because the decisions made there concerning Genocide, War Crimes and Crimis against Humanity ould have an greater impact on the punishment of US soldiers. If the "door of jurisdiction" would once be open according to these crimes, the rules of procedure and evidence would cause only minor differences regarding the conviction of US soldiers.
The second, personal, reason deals with the size of the US delegation in New York. In Rome the Us delegation had the biggest team counted by numbers. In New York the French delegation was for example larger than the US delegation in the first week. At the beginning of the second week additional officers from the department of justice arrived and started attending the formal as well as the informal sessions about procedural law.
The starting points of the whole discussion were two drafts submitted by the delegation of France and of Australia. A third draft, although much more lengthy, submitted by the American Bar Association, was not discussed in open forum. This helpful draft was filed by the Chairperson Mr. Monroe Leigh and five other members and contained 137 detailed rules. However, as mentioned above, this draft had its function as an example especially for French delegation, because their draft consisted mostly of "headlines." During the negotiations the French delegation delivered at least four times proposals, which became suddenly the basis for further discussions.
a) French Proposal
The French proposal reflects the continental approach to criminal procedure. His aim is to cover all possible situations at the Pre-trial, the trial and remedy stage. Therefore the French proposal is partly very abstract and tries to govern the proceedings in a general way. Passages dealing with general rules regarding victim participation are followed by single provisions dealing with specific victims protection problems.
The clear systematic is an advantage of the French proposal, as well as the strong support of victims issues, especially the question of their representation in the (Pre-)trial proceddings. The French Government will hold a conference on victims issues &endash;protection and participation in the trial proceedings &endash; from 27th until the 30st of April 1999 in Paris. The french proposal is interesting regarding the guilty plea at the initial appearance (rule 78-80). Rule 80 deals with corobating evidence in case that such a guilty plea is made. This provision reflects a typical continantal law approach according to which a judge can rely on guilty plea only, if corobated through other means of evidence. This provision elaborates art. 65 I c) of the ICC statute.
New in the French proposal is, that the parties should have a specific right for appeal or revision against a guilty plea; see art. 84 ff. and art. 90.
The trial procedure is governed without any surprising provisions. Interesting is only that the French proposal contains two provisions dealing with reparation and confiscation; rule 124, 125.
Positive is, that the french proposal tries to stress defence needs as well as victims need. The victim representation is covered at all stages of the proceedings, including the initial stage, where the prosecutor has to decide over sufficient reasons, to proceed with an investigation" (sog. Anfangsverdacht). Even at this early stage the French proposal calls the prosecutor to keep the interest of victims in mind and offers the possibility for their representation.
Important is also, that the French proposal mentions different situations for a possible appeal. It is also possible that either party appeals for reasons deriving from the initial appearance and questions relating to guilt and innocence as well as "other decisions", Rule 84.
New is the mentioning of an obligation of the prosecutor to inform states and other parties .?? from ist intent to start an investigation, see also Art. 18 (1) of the ICC´s statute. A negative factor in the French draft is, that sometimes this proposals adopt a too large civil law appoach, even where the statute of the ICC has made the decision towards an more adversarial model. For example Rule 61.1 c) of PCINCC/1999/DP.8 stands in contradiction to Art. 67 (2) of the statute.
b) Australian Proposal
The Australian proposal adopts a largely adversarial model. The difference to the French proposal consists in its mainly fragmentaric character. The Australian proposal is silent on the confirmation of charges as well on further guarantees of the rights of the accused. Regarding the disclosure provisions the Australians move the burden of disclosure a little bit towards the prosecution (rule 67/68). To balance this burden the Australian proposal proposed exceptions to the general rule of full disclosure in cases of confidentiality and danger for ongoing investigations (see rule 71). As will be shown later, these restrictions were mostly adopted by the delegates of the PrepCom.
The advantage of the Australian proposal is his restrain from governing too many details. Many crucial issues are not solved and by this conscious decision, their solution is left to the discretion of the judges. This facilitates the evolution of the RPE and enables at the same time the judges to govern the proceedings apart from too many technichal hurdels set up by too detailed rules. However, as stated above, as a general tendency the delegates at the PrepCom tended more towards the adoption of detailed Rules. Thus the French approach to find detailed rulings which leave nearly no discretion to the judges was followed. The delegates adopted with Part V a regime dealing with investigation and prosecution which is very precise and largely detailed. The technical setting avoids loopholes, but establishes such a detailed procedure, that the judges have to be very careful not to forget some of the detailed guarantees for either side. The possibility of an appeal is obvious and will lead to judges who will proceed rather slow and cautious than speedy. Therefore it can be doubted, if the RPE help to establish a expeditious strial as stated in Art. 67 c) of the statute.
The Australian proposal follows in great length the ICTY´s rules of procedure and evidence. However, in some details, the Australian proposal differs from the approach of the Yugoslav Tribunal. For example is there no reciprocal disclosure between the defence and the prosecutor. The latter carries the burden of further reaching obligations than the defense. This system is familiar in some, though not all common law countries. The background of that "inequality of disclosure" is to enable equality between the prosecutor and the usually weaker defense. At trial the Australian proposal tries to give the TC more power than at the ICTY. Rule 90 a) i) gives the TC a position similar to Chambers in civil law countries. According to this provision the TC "makes the interogation (...) for the ascertainment of the truth". In the ears of the continantal laywer this sounds like the Amtsermittlungsgrundsatz (principle of judicial investigation). In order to avoid needless consumption of time the TC certain limitations are applicable for the cross-examnation through the parties. Unless in the ICTY the cross-examnation at the ICC is limited to the "subject matter of direct examination and matters affecting the credibility of the witness", Rule 90 c). Additional matters can be touched in cross examination only if the TC so permits!
This new approach increases the power of the TC and puts him more in the position of a continental law chamber.
A drawback from the ICTY-rules and from the Amtsermittlungsgundsatz Amtsermittlungsgrundsatz (principle of judicial investigation) is Rule 97. This provision enables the parties to agree on each matter of fact, or agree not to contest a witness testimony or the contest of a document. Although subrule b) opens the TC a possibility to decline to accept such an agreement, the adoption of so called "stipulations" shows a tendency towards the "trial truth" and not towards the "real and objective truth."
Confusing is, that in the case of preliminary motions the parties can according to rule 77 ask for a decision of the TC, but not for an Appeals Chamber decision like in Rule 72 (B) of the ICTY RPE.
Concerning the appeals-provision it is crucial, that the Australian proposal does not recognize the "reformatio in peius"- rule. See Rule 123 a).
A brief assessment of the Australian proposal is that it is surprising, that even the common law world seems to accept a more important role of the TC regarding the cross-examination. This can be the only way to obtain speedy trials. On the other hand should this objective be limited. The possibility of stipulations, as provided for in Rule 97, could lead to further critizism and endanger the difficult task of a future ICC.
The broader discretion of the judges as provided for in the Australian proposal is also crucial regarding the absence of the reformatio in peius-rule. This makes it more difficult for the convicted to challenge his own conviction!
2) Results of the discussion on Procedural Matters &endash; The consent of Part V At first it has to be stated, that nearly 90 % of the French and Australian proposals could be merged to a compromise package. Pending issues are victims participation (see PCNICC/1999/WGRPE/RT.3) and the obligation of the defence to let the prosecutor inspect her books (See Footnote 5.16 under rule 5.16 in PCNICC/1999/WGRPE/RT.4).
a) Confirmation of Charges (see PCNICC/1999/WGRPE/RT.3)
Nearly all provisions regarding victims participation are pending, but it is sure that they will be incorporated in the rules after the Paris conference in April of this year. At the confirmation hearing the compromise tends towards a written participation of victims.See Rule 5.9 (g) Subpara 3). This procedure will give victims the chance to submit their written requests 15 days prior the confirmation hearing to the Pre-Trial Chamber, who, after the parties had the possibility to raise their objections, will rule about the introduction of the victims request in the hearing. If the PTC grants the request, either the victims, or their counsels can introduce their observations according to Rule 5.10 (b) (iii). It is important to see, that the delegates forgot to restrict the count of possible victims counsels at the confirmation stage. In Rome this was a primarily concern of the US-delegation. As mentioned above, the US were not participating in the informal sessions in the first week!
Rule 5.10 d) points out that the main presentation is done by the parties and not by the victims. If the victims or their representatives speak at the confirmation hearing, both parties have the right to reply. The suspect has the right to a final statement.
This procedure, though not adopted, balances the rights of the suspect with the need of the victims. It gives victims a limited, but fair possibility to participate in the confirmation hearings, without a chance to burden the procedure at such an early stage.
It is important to know, that the ICTY´s rules had no deep impact on this part of the negotiations. Neither rule 47, nor Rule 61 of the ICTY RPE know an contradictory process at the confirmation stage. Neither the accused nor any victim is allowed to represent its view at this early stage.
b) Disclosure between the parties (see PCNICC/1999/WGRPE/RT.4)
Mainly the Australian proposal was adopted here. The Australian draft was based on the ICTY´s rules of procedure and additional decisions by the judges. For these reasons it can be stated, that the ICTY had an important impact on this part of the ICC rules.
In brief as a general rule, the prosecutor has the obligation to disclose all evidence to the other party and to the Pre Trial Chamber ! See Rules 5.12 and 5.15. We will explain the restrictions of the obligation of disclosure later.
In opposite, the defense has only limited obligations to disclose to the Prosecutor: at this stage, the defense can inspect the files of the prosecutor without a reciprocal obligation to do so (See Rule 5.16, but see also the footnote). Regarding witnesses the prosecutor has to disclose all adresses and the content of every statement (Rule 5.15), while the defense as such an obligation only in two cases. If they intend to claim an alibi-defense, or if a ground of full exclusion of criminal responsibility is intended to introduce into the proceedings (see Rule 5.17 a (i) and (ii)).
Regarding the full exclusion of criminal responsibility, the RPE of the ICC are stricter than in the ICTY´s RPE-model. Rule 67 A ii B) of the ICTY states that the accused has to disclose also "any defence, including that of diminished" mental reponsibility. According to this provision the defense has the obligation to disclose each form of alcohol abuse by a suspect. According to the ICC-rules, such an obligation would only exist in cases of heavy or systematic abuse of alcohol, which would lead to the conclusion of total exoneration and therefore to a release of the suspect. Another important issue is the responsibility for disclosure. Before the confirmation the PTC is responsible for questions relating to disclosure and has the right to receive copies of all materials according to Rule 5.12. After the confirmation hearing the Trial Chamber is responsible for further disclosure according to Art.61 (11) of the statute. The important difference is, that the TC is not allowed to have any knowledge of the materials prior to the introduction into evidence at trial. Otherwise the TC could be prejudiced by ist prior knowledge and loose ist function as an impartial arbiter of the proceedings. This position of the (Pre)Trial Chamber reflects adversarial influences. In the civil law hemisphere it is common that the judges have full knowledge of the whole dossier prior to the commencement of the trial (inquisitorial approach).
At the next PrepCom it is important to insert further obligations of disclosure for the defense.
c) Limits of disclosure (Rule 5.19)
The final part of the disclosure proceedings deals in rule 5.19 with restrictions on disclosure. This rule reflects mainly Rule 70 of the ICTY´s RPE. Non-subject to disclosure are
- internal documents prepared by a party
- information which prejudices further ongoing invstigations
- information regarding issues of confidentiality of a witness or victim received by the prosecutor. In contrary to Rule 70 (c)of the ICTY´s RPE, the ICC approach puts a burden on the prosecutor to submit a summary of the evidence instead. See Rule 5.19 d)
- information relating to national security
- from the prosecutor obtained evidence prior o the start of an investigation (Art.54 III statute), for which he promised to keep ist source confidential
Important is, that the accused has the right to challenge such evidence, which has been received by the prosecutor before he had reasons to believe that an "sufficient basis to proced an investigation" existed. Thereby the accused can challenge the evidence, the provider can be summoned and has to participate in the trial as a winess. However the witness cannot be "compelled to answer any questions relating to the material, the information or ist origin, if the witness declines to answer on grounds of confidentiality" &endash; Rule 5.19 (h).
Another limit to confidential obtained evidence is, that the provider of the initial material cannot be ordered to produce "additional evidence." In such a case, even the sumon of the provider of the information regarding his attendance at trial is not possible for the TC. See Rule 5.19 (g).
d) Short evaluation
The first PrepCom of the working group was successful, although a lot of work is left for the final two PrepComs in July/August and November/December.
Important is the fact, that nearly no delegation doubts that the goal of a complete setting of the RPE will not be achieved. Even the US delegation is silent on most issues. Reasons therefore are, that the US delegation fears more the definition of elements of crimes, than the more or less technical RPE and their impact on he whole ICC process.
The commitment of the French delegation with their proposals and their new role as a key player in procedural matters is a very pleasant development. Especially because the French delegation had adopted a more or less sceptical attitude towards the establishment of the ICC. Now our impression is, that the French delegation tries to play a constructive key role in the process, in order to achieve by this new tactics their goal.