As the Preparatory Committee's efforts to generate a consolidated draft text nears an end, the practical stakes of these negotiations could not be higher. Human Rights Watch believes that the question confronting the negotiations now is the kind of Court that will emerge from the March- April session and the Diplomatic Conference. Will the International Criminal Court be an effective independent judicial institution, capable of holding those accused of genocide, crimes against humanity and war crimes accountable according to the highest standards of international justice? Will the Court be empowered to provide justice for victims of these atrocities? Increasingly, international public opinion is looking to see whether, at the end of the most violent century in history, the community of States will establish a Court to limit impunity and deter the commission of these crimes in the twenty-first century. The final phase of these negotiations offers a unique opportunity--one that will not occur again in the near future--to advance enforcement of human rights and humanitarian law protections. Human Rights Watch urges delegations participating in the final session of the Preparatory Committee to make their decisions in light of the profound practical humanitarian implications of the negotiations.

The 1997 Preparatory Committee meetings have made substantial progress in preparing a draft consolidated text for the Diplomatic Conference. Delegates have significantly reduced and refined the text in the areas of general principles of criminal law, criminal procedures, penalties and judicial cooperation. The options and implications of the large political questions such as the relationship between the Court and the Security Council, the definitions of crimes within the Court's jurisdiction, the role of the prosecutor, inherent jurisdiction over core crimes, have all been clarified. Human Rights Watch believes that the consolidated draft text prepared by the January intercessional meeting which took place in Zuthpen, the Netherlands represents an important step forward in furthering clarifying options, organizing the draft text and facilitating progress. We hope that this text will be accepted as a basis for negotiations at the forthcoming session.

The session faces critical challenges. These include approving rules of procedure for the Diplomatic Conference in Rome that will ensure efficient and fair completion of the treaty, clarifying proposals for the relationship between the ICC and the United Nations and resolving the question of the funding of the ICC. In particular, Human Rights Watch believes that the correct handling of national security issues as they affect the entire statute is of utmost importance. Where principled progress is not possible, we urge that clear options be delineated for the Diplomatic Conference.

To maximize progress Human Rights Watch believes that there are valuable lessons to learn from the experience of the 1997 Preparatory Committee sessions. Given the especially heavy work load and length of the March-April session, it is essential that each Working Group session be well prepared beforehand. We urge delegates with differing viewpoints on essential issues to discuss those differences as much as possible before the session to more clearly identify the key points of contention and make an effort to forge solutions. We urge the Working Groups to build on the example of August and December 1997 meetings and ask a few delegates to draft a particularly complex article, with bracketed text, to reflect the principal views involved. With much to do and so little time, it is more important than ever that delegates use the time efficiently. In that spirit we urge delegates to limit their interventions and avoid making duplicative or unnecessarily long interventions.

Since the December session of the Preparatory Committee there have been several very important intercessional meetings in addition to the Netherlands meeting. In Dakar, Senegal, representatives of twenty African governments met to discuss the establishment of an International Criminal Court, They adopted a Dakar Declaration that calls for an effective and independent court. West African nongovernmental organizations met for two days before the governmental session to formulate an NGO Dakar Declaration. In Guatemala, representatives of Latin American and Caribbean states will be meeting for two days of substantive discussion about the ICC. This session will help to deepen understanding of the outstanding issues and will undoubtedly enable states from the region to play an even more informed and active role in the negotiations. These meetings are part of the mounting international activity around the Court.

Human Rights Watch looks forward to working with as many delegations as possible, and we stand ready to assist any delegation in exchanging ideas and discussing proposals. We expect that the partnership that has evolved between nongovernmental organizations and government delegations will continue to consolidate during this session. This three-week session will undoubtedly be exhausting and challenging. Human Rights Watch commends the work that delegates have put into the process; it is that commitment that has pushed the process to the end of the preparatory phase.

This Commentary focuses on key issues to be debated at the Preparatory Committee scheduled to take place from March 16 to April 3, 1998. Each section, some beginning with introductory remarks, offers specific recommendations for each of the relevant articles of the current draft Statute for the International Criminal Court (ICC). The recommendations are followed by comments that explain the reasoning behind the recommendations. This document refers in various places to the text which emerged from the intercessional Zutphen meeting, which we hope will be accepted by the Preparatory Committee as a basis for negotiations at the forthcoming session. Article numbers refer to that document, followed by the corresponding numbers from the original 1994 International Law Commission (ILC) Draft Statute in brackets for ease of reference. The relevant ILC or Zutphen text to which the recommendation relates is set out in italics immediately preceding the recommendation. We hope that this Commentary will assist delegations in their deliberations and in formulating proposals.



Human Rights Watch believes that the relationship between the ICC and the United Nations (U.N.), and the provisions on the financing of the Court, must be governed by the following principles. Firstly, the ICC must be an independent judicial body, not subordinate to any political body in the exercise of its functions. Secondly, the ICC must be permanent and secure, not susceptible to abolition or external interference with its mandate. Thirdly, it must be adequately resourced from a solid and predictable source of funding, and be equipped with professional staff of the highest caliber. Finally, the Court must be capable of establishment without delay.



The Court's mandate is central to the objectives of the U.N. Charter, and as such the Court should enjoy strong ties to the U.N., subject to guarantees of independence. Human Rights Watch suggests that the establishment of the Court as a treaty body may be the most efficient way to achieve these objectives.

The paper circulated by the Codification Division of the Secretariat to the U.N. on possible relationships between the Court and the U.N., envisages the Court as one of the following: a principal organ of the U.N.;(1) a subsidiary organ of a U.N. body;(2) an independent international organization;(3) a treaty body of the U.N.(4)

While Human Rights Watch recognizes that there would be advantages to the Court being a principal organ of the U.N., in terms of the international standing and permanence it would afford the Court, we believe the establishment of the Court should not be dependent on amendment of the U.N. Charter.(5) Such a measure would undoubtedly involve protracted delays; the existence of an international criminal court is long overdue and must not be further delayed.

Human Rights Watch shares the International Law Commission's view that it would not be appropriate for a permanent international court to be a subsidiary organ or specialized agency of the General Assembly or the Security Council.(6) In this case, just as the parent U.N. body created the Court, so would it be empowered to abolish it, or to change its mandate, through resolution. The Court should not be susceptible to abolition or amendments to its mandate, other than through the agreement of the States that have created it.

If the ICC were to be an independent international organization it would need to enter into an agreement with the U.N., establishing the relationship between the two organizations. This would defer the question of the nature of the relationship until a future date, which may induce delays to the establishment of the Court and create uncertainty as to its nature. Human Rights Watch considers it preferable to have the crucial relationship established at the outset. Moreover, as set out below, we strongly urge that the funding of the Court come from the regular U.N. budget, and note that the funding for independent international organizations generally does not.

The establishment of the Court as a treaty body would alleviate many of the concerns expressed in relation to the previous options. The Court would then enjoy the stability and independence guaranteed by that fact that any change to its mandate would require formal amendment of the treaty,(7) rather than being susceptible to control from, and ultimately abolition by, an external U.N. or other body. Moreover, while treaty bodies can be independently funded,(8) they can be and generally are funded from the U.N. budget and are supported by a secretariat provided by the U.N. It would not be dependent upon any future uncertain agreement entered into between the Court and the U.N. The relationship could benefit from the experience of other bodies such as the Human Rights Committee and other human rights monitoring bodies which, while enjoying close relationships with the U.N., are independent of it in the execution of their functions.



Provide for the secure, adequate and effective financing of the Court, free from susceptibility to political manipulation and control. Human Rights Watch recommends financing from the budget of the United Nations as the best way to meet these objectives.

The funding of the ICC is an issue of key importance. Adequate funding and qualified, professional staff is essential if the Court is to efficiently discharge its critical mandate.(9) Various proposals have been submitted in this regard, falling into two main camps: that the Court be funded out of the regular budget of the U.N., or that it be funded from contributions by States Parties, States responsible for bringing complaints (or the Security Council when it lodges a complaint)(10) and other voluntary contributions.

Given the universal nature and mandate of the Court--to prosecute crimes of concern to the international community as a whole--we believe that funding from U.N. assessments is entirely appropriate. Strong financial and other links with the U.N., if coupled with the necessary safeguards for its independence, would enhance the international standing of the Court.

Human Rights Watch opposes the proposal that States Parties meet the costs of the Court. Firstly, the cost of setting up the Court will be substantial; adequate funding will have to be available from the outset, and the best way of ensuring this is by including the ICC in the U.N. budget. Human Rights Watch further favors requiring a low number of ratifications for the treaty to enter into force.(11) If there is a small number of original ratifying States, and they bear the financial burden, either the Court would simply not be able to function or the burden would be extremely onerous.

Secondly, Human Rights Watch believes that making States Parties bear the heavy financial burden of the Court's expenses would be a disincentive to ratification. States must be encouraged to ratify, not penalized for doing so. Similarly, we strongly oppose the proposal that States should pay to lodge good faith complaints. The rationale underlying this proposal appears to us entirely misconceived. Given that such complaints should not be made in the interest of the State itself, but in the interests of international justice, States should be encouraged to make complaints, not financially disadvantaged for doing so. Nor should less-developed States be in any way impeded from becoming Parties to the treaty or from bringing complaints to the Court, on the basis of their lesser ability to pay. If the ICC is to be a court of international justice and not a private court accessible to those best able to pay, these proposals must be rejected.

Finally, attempts to finance bodies entirely from contributions by States Parties have proven problematic in the past.(12) While it would be naive to assert that financing by the U.N. entirely removes the issue from the political arena, we consider it preferable to funding by States Parties, which would subject the Court to control by a smaller number of individual States, which could paralyze its operation through non-payment of dues.



Article 37 [ILC Art.13]

"The Registry shall be responsible for the administration and servicing of the Court..."


Amend Article 37[13], to provide for the creation of a Witness Support and Protection Unit to protect the physical and psychological well-being of witnesses--particularly victims--and their family members, before, during, and after trial proceedings. The Unit should be located within the Registry of the Court (hence under Article 37), and operate independently of the Procuracy.

Human Rights Watch believes that providing support and protection to witnesses before, during, and after the trial phase is critical to the success of the ICC. Evidence from the International Criminal Tribunals for the Former Yugoslavia and Rwanda overwhelmingly indicate that witnesses face serious security and psycho medical concerns. For example, numerous witnesses, in particular victims of gender-based crimes, have refused to participate in the Tribunals' proceedings because of fears of reprisals against them or their families, or because of the social or familial ostracization that may result from having been a victim of a gender-based crime. Victims who do testify may experience profound stigma and shame. For these reasons, the Witness Support and Protection Unit must provide survivors of sexual violence with basic support and counseling services, in addition to protective measures, to promote their psychological well-being and facilitate their participation in ICC proceedings.

In the light of the Unit's mandate, we believe that it should be located within the Registry of the Court, and not within the Procuracy. The Prosecutor will and must be sensitive to the concerns of witnesses in the proper exercise of his or her functions. We believe, however, that it is possible that conflict could develop between the interests of witnesses, on the one hand, and the interest of the prosecutor's office--in ensuring the effective prosecution of those responsible for serious crimes--on the other. To ensure that the interests of the witnesses are adequately represented and protected, we recommend that the Unit operate independently from the Prosecutor's office.


Recommendation 1:

States Parties should take due account of adequate gender representation in the composition of all organs of the Court, including the judiciary.

Human Rights Watch believes that the ICC will be better equipped to effectively discharge its mandate if its composition reflects gender diversity. Responsibility to ensure the effective prosecution of gender-related crime is an important challenge facing this Court. The possibility of successfully meeting this challenge will be greatly enhanced if women are represented, particularly in the prosecutor's office, the Victim and Witness Unit and within the judiciary itself. The constituent instruments of a number of international bodies make explicit reference to the importance of representation of women within these organizations.(13) Regard for gender representation in international bodies has been expressed most recently in Article 43 of the Vienna Declaration and Programme of Action which "...encourages other principal and subsidiary organs of the United Nations to guarantee the participation of women under conditions of equality."

Recommendation 2:

Include a provision stating that the Court should reflect a cross-section of the world's legal traditions and cultures and be composed of persons of the highest caliber and expertise. The composition should be diverse, on the basis of race, national origin or ethnicity, among other factors.

Human Rights Watch notes that Article 30(5) [ILC Art.6(5)] of the statute refers to the need for regard to be given to "representation of the principal legal systems of the world" in establishing the composition of the judiciary. Human Rights Watch supports this principle. The ICC must be a universal court established to apply international law and the principles of law recognized in major legal systems of the world.(14)

The Court must have within its ranks persons of the highest standing, and should reflect a range of legal backgrounds and traditions--civil, common law and others. We suggest that uniformity of excellence, coupled with diversity on the basis set out in the recommendation above, would be an asset throughout the organs of the Court, not exclusively in the judiciary. Other parts of the Court, in particular the Procuracy and the Witness Support and Protection Unit of the Registry, would greatly benefit from an expert staff that was culturally diverse; this would facilitate sensitive and effective dealings with witnesses--in particular victims--and accused persons.



Article 92 [ILC Art. B]:

"No reservations may be made to this document."


Retain Article 92[B], prohibiting reservations to the ICC treaty.

Human Rights Watch considers it fundamental to the integrity of the ICC treaty, and of the Court to be established under it, that reservations be expressly prohibited.(15) Permitting reservations would undermine the force and moral authority behind the treaty and weaken the nature of the obligations embodied in it.(16)

The problems associated with reservations were illustrated in a General Comment by the Human Rights Committee on reservations to the International Covenant on Civil and Political Rights.(17) As of November 1, 1994, 46 of the 127 States Parties to the International Covenant on Civil and Political Rights had, between them, entered 150 reservations to their acceptance of the obligations of the Covenant. The Committee notes: "The number of reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States Parties."(18)

Delegates are urged not to expose the ICC to the risk that its role will be undermined through the use of wide-ranging reservations.

In favor of allowing reservations some would argue that to do so would encourage broader ratification of the Statute. Human Rights Watch believes that near-universal ratification, while of course desirable, is not essential to the effective functioning of the Court. What is essential is that the Court meet certain benchmarks of fairness and independence, and that the obligations of States Parties vis-a-vis the Court be clear. We therefore urge retention of Article 92[B] as currently drafted.


Article 97 [ILC Art. G(1)]:

"This Statute shall enter into force on the [60th] day following the date of the deposit of the [22nd, 35th, ...] instrument of ratification...."


The number of ratifications specified as pre-requisite to the entry in force of the treaty should not be so high as to result in undue delay in the establishment of the Court; of the proposals presented to date, the requirement of twenty-two ratifications is the most acceptable.

The atrocities of recent history cry out for the early establishment of an independent and effective International Criminal Court. Human Rights Watch hopes that a treaty providing the basis for a credible and effective ICC will emerge from the Diplomatic Conference in Rome and enjoy the widest possible support. If widespread ratification is not achieved immediately, however, it should not hamper the Court from being established and being able to carry out its crucial mandate.

Human Rights Watch favors the lowest of the proposed number of state ratifications necessary for the treaty's entry into force . We oppose any provision which would risk repetition of the experience of other treaties whose effect was paralyzed at the outset by the requirement of a high number of ratifying States. For example, United Nations Convention on the Law of the Sea required sixty ratifications.(19) The result was that it did not enter into force for 12 years, until 1994.(20) We do not think that a high number of required ratifications should be allowed to cause inordinate delays in establishing the Court.

Moreover, given the nature of the Court's jurisdiction and the urgency of the situation that the Court is being established to address, a lower number of ratifications is, in our view, appropriate. Humanitarian treaties, given the nature of their subject matter, generally require very few ratifications to enter into force; the Protocols Additional to the Geneva Conventions (Protocols I and II), for example, required only two.(21) The 1994 Inter-American Convention on the Forced Disappearance of Persons similarly required ratification by only two States to enter into force.

The Genocide Convention required twenty,(22) as did the Conventional Weapons Convention,(23) the Torture Convention(24) and the Convention on the Rights of the Child(25); the latter two treaties established bodies to monitor observance of the obligations assumed in the treaties. In our view, the objectives of the ICC treaty--and the urgency surrounding them--have much in common with the objectives underlying human rights or humanitarian law treaties. While we recognize that the pre-requisite number of State ratifications is likely to be more than the lowest of the human rights/humanitarian treaties, we believe that, consistent with the requirements of the other treaties referred to above, any more than the lowest of the proposals at paragraph 96[F] would be excessive.

In certain treaties, wide ratification is essential to achieve the treaty's purpose. The instrument establishing the ICC is not such a treaty. With each effective investigation and prosecution of genocide, crimes against humanity or serious war crimes, the Court's existence will have been justified. It can begin to achieve its goals even with relatively few ratifications. States can and will accede to the treaty over time. As the Court's reputation develops and the interest of States and the international community becomes apparent, support will increase. The ICC's ability to carry out its mandate should not be paralyzed by the often lengthy internal procedures prerequisite to ratification in a number of states.

As Human Rights Watch believes that the Court ought to be funded out of the regular budget of the U.N., there is no financial necessity to have a large number of ratifying states in order to share the initial burden.


Article 98[ILC Art. H]:

"(1) Any State Party may withdraw from this Statute by written notification to the Secretary General of the United Nations.

(2) Withdrawal shall take effect one year following the date on which notification is received by the Secretary General of the United Nations. The withdrawal shall not affect any obligations of the withdrawing state under the Statute."

Recommendation 1:

Retain the provision making withdrawal effective only after the expiry of a specified period of time, being at least one year.

If withdrawal is to be permitted by the treaty, a state's ability to withdraw and the effects of doing so must be limited.(26) If the Court is to have any effect, the treaty must ensure that states cannot impede investigation or prosecution of particular crimes or persons by simply withdrawing, thus escaping their obligations and hindering the proper functioning of the Court.

Many treaties provide for a notice period, such as the one-year period set out above, which provides some security against the possibility of reactive withdrawal. For example, the International Convention on the Elimination of All Forms of Racial Discrimination provides that:

A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.(27)

In this recommendation, Human Rights Watch encourages the inclusion of a similar provision in this treaty.

Recommendation 2:

Provide that, after notification of withdrawal, all of the obligations of the States Parties under the Statute shall endure in respect of any act or omission that occurred prior to expiry of the period of notification.

There are, however, circumstances in which the notice period may prove insufficient to meet the objective sought. A State should be required to cooperate with respect to any crime that comes within the Court's jurisdiction committed during the time that State is a party to the treaty. Crimes committed may well still require the cooperation of a particular state, in a variety of ways, more than one year after the commission of the crimes. This recommendation would provide a safeguard against a state withdrawing in order to avoid its obligations under the Statute, such as its obligation to investigate particular crimes or individuals. The present draft of H(2), which states: "The withdrawal shall not affect any obligations of the withdrawing state under the Statute," may seek the same end as proposal (2), but would, in our view, benefit from clarification as to its meaning.

A comparable provision appears in the Torture Convention, which in addition to requiring a one-year delay before a denunciation goes into effect, provides that States continue to be bound after withdrawal, in regard to acts or omissions occurring prior to or during the notice period.(28)

This approach accords with Article 70 of the Vienna Convention on the Law of Treaties.(29)

Recommendation 3:

Provide that withdrawal should not be permissible within an initial period, such as the first five years of operation of the Court, or after a particular State ratifies the treaty.

It is also a common feature of treaties that no denunciation or withdrawal is possible within a specified period after the treaty enters into force or after a State becomes a party. This seeks to ensure a degree of stability and predictability in the execution of the treaty. For example, the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)(30) provides that a contracting party:

may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months' notice contained in a notification addressed to the Secretary-General of the Council of Europe.(31)



Article 48[ILC Art. 26 bis]

"States Parties shall promptly inform the prosecutor about national investigations or proceedings undertaken with respect to the alleged commission of a crime within the jurisdiction of the Court....Such information...shall include a concise statement of the circumstances of the alleged crime, the identity and whereabouts of any suspect (or accused), and the progress of the investigation or proceeding concerned."


The Court's jurisdiction is complementary to that of national systems, activated only where the national jurisdiction is "unable" or "unwilling" to effectively carry out investigation and prosecution. In order for the Court to determine whether it has jurisdiction of a given matter, it must be able to obtain adequate information relating to national proceedings. The text of the above article sets this out as an affirmative duty on States Parties to the Statute, and it should be strongly supported.

The above article constitutes a crucial complement to the provisions of Article 11 [ILC Art. 35] and Article 12 [ILC Art. 36] which frame the situations where the Court may exercise its jurisdiction in lieu of a national system that is unwilling or unable to effectively pursue prosecutions. Without an affirmative obligation of States to cooperate in providing information on their investigations and other proceedings relevant to crimes that are embraced by the Court's Statute, silence or obstructionism could be tactics used to deter the Court from taking up any given case. Once information is provided, the prosecutor (or, in the event of challenge, the Court) will be able to determine whether there are, in fact, national level investigations and prosecutions, and assuming this is the case, will defer to the national jurisdiction. Where the information as to such investigations and prosecutions points to an absence of genuine proceedings, the prosecutor must be empowered to take up the matter. Where a State objects to this action, there are adequate mechanisms for challenging the exercise of jurisdiction as set forth at Article 12 [ILC Art. 36] of the Statute.

Article 49 [ILC Art. 26 ter]

"In the event that the Prosecutor, having regard to the matters in Article 11[35], defers an investigation, then the Prosecutor [may request that][may seek an order of the Court that] the relevant State make available to the Prosecutor [the Court] information on the proceedings....If the Prosecutor decides to proceed with an investigation, he or she shall notify the State in respect of whose proceedings deferral has taken place."


The prosecutor must be empowered to obtain information on the ongoing status of national proceedings where, regarding a potential investigation or prosecution, an initial decision has been made to defer to national authorities. The above article should be included in the Statute in a form that specifies the prosecutor's power to request such information without an order of the Court and that specifies the State's obligation to provide all relevant information without delay.

Consistent with Article 48 [26 bis] above, and the general duty to cooperate fully with the Court 77[51], States Parties should be obliged to provide the Court with information on the progress of national proceedings. The obligation to do so is all the more important which those proceedings have lead to the deferral of ICC proceedings. There should be no need for the Prosecutor to obtain an order of the Court to request information in these circumstances.(32) The wording of Article 49[26 ter] should be imperative, making clear that the State shall provide the information in response to such a request. As in Article 48[26 bis], some reference should be made to the nature of the information to be provided; it should, as in the previous article, be sufficiently full as to progress made in the investigation and prosecution of the case, to enable the prosecutor to decide whether there are genuine proceedings that meet the Article 11[35] threshold. If, in light of the information provided, the Prosecutor decides that the ICC should proceed with the case, the State should be notified. Sufficient safeguards then exist in the Draft Statute at Article 12[36] for relevant States to challenge this exercise of jurisdiction by the Court if they wish to do so.(33)



Human Rights Watch believes that detailed rules of evidence should be set out in the Rules rather than the Statute itself. The following recommendations and comments are offered in respect of the provisions of the Statute.

Article 62 [ILC Art. 44(1) bis]

"The testimony of witnesses at trial shall be given in person except to the extent provided by the measures set forth in Article 43 or in the rules of evidence. These measures shall not be [prejudicial to][inconsistent with] the rights of the accused."


An appropriate balance must be struck between the interests of victim and witness protection in the giving of testimony on the one hand, and the rights of the accused, in particular with respect to cross-examination of witnesses. This article strikes such a balance, and could be strengthened by express reference to the rights of the accused as they are set out in international human rights instruments, as reflected in Article 41 of the Statute.

Human Rights Watch welcomes the latest draft of Article 61[44(1)], which recognizes the need for protective measures in favor of witnesses, without compromising the rights of the accused.

The relevant part of Article 43 states: "The Court shall take the necessary measures available to it to protect the accused, victims and witnesses and may, to that end, conduct closed proceedings or allow the presentation of evidence by electronic or other special means." Human Rights Watch supports the adoption of such procedures with a view toward reducing the trauma of victims and witnesses, including minimizing the frequency with which victims must recount the atrocities committed against them.(34)

We draw attention, however, to the fact that one of the "rights of the accused," which must not be compromised in any circumstances, is the right to cross examination in person. This right is one of the minimum guarantees of the right to a fair trial enshrined in international instruments.(35) We note that Article 41 of the Statute, titled "the rights of the accused," reflects the relevant international legal provisions, providing that the accused shall be entitled "to examine, or have examined, the prosecution witnesses and to obtain the attendance and examination of witnesses for the defense under the same conditions as witnesses for the prosecution."

At the same time, judges should have the discretion to control the manner of questioning, to avoid any harassment or intimidation of witnesses, or to prevent their suffering unnecessary trauma.(36) Witnesses, particularly victims, should be protected from unnecessarily hostile cross-examination, as well as exposure to inflammatory or misleading innuendo during the course of trial. While such reasonable limitations on the way in which the right is exercised are permissible and necessary, the right itself, both to obtain the attendance of witnesses and to cross-examine them, must not be compromised.

We suggest that the protection of this right would be more secure if express reference be made in Article 44(1) bis to the rights of the accused as enshrined in Article 41 and international human rights instruments.


(I) Unlawful arrest or detention

Article 53(8) [ILC Art. 29(3)]

"If the [Presidency][Pre-Trial Chamber] decides that the arrest or detention was unlawful under the Statute, it shall order the release of the person [and may award compensation]."


Amend Article 53(8) [29(3)] to provide for the right to compensation in the wake of arrest or detention which violates the Statute or established human rights under international law.

Article 53(8) [29(3)] of the Draft Statute provides that where the Presidency or Pre-trial Chamber decides that an arrest or detention was unlawful, the Presidency "may award compensation [emphasis added]." Human Rights Watch believes that the Statute should reflect the right to compensation established in international law and should state that compensation will be awarded in these circumstances.(37)

(II) Miscarriages of justice


Amend Article 50 to provide for the right to compensation in respect of miscarriages of justice in accordance with the relevant international standards.

The right to compensation in respect of miscarriages of justice is established in international law and must therefore be enshrined in the Statute.(38) The International Covenant on Civil and Political Rights (ICCPR), whose provision could be incorporated into the Statute, provides that: "Where a person has by final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated in accordance with law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him."(39)

Human Rights Watch supports Proposal 1(2) of Article 50 to the effect that the procedures and criteria for compensation should be set out in the Rules of the Court. The principle for the Statute should reflect the above provision. This would support the right to compensation in respect of detention which, although not lawful, and therefore not subject to compensation under Article 53(8) above, did not lead to conviction. Compensation, as envisaged at Article 14 set out above, results not from any error or illegality on the part of the Court, its officers or agents, but rather from the harm suffered by the person arrested, detained or punished. Provided the unknown fact that would have avoided the arrest or detention is not wholly or partly attributable to the person arrested or detained, he or she should, on the basis of the above, be entitled to compensation.


Introduction: legitimate interests

Human Rights Watch recognizes that states have legitimate security interests which, in the course of cooperating with the ICC, they may seek to protect. For example, a State may seek to keep confidential the identity of intelligence agents in order to protect important intelligence sources and in certain instances in order to protect the life or physical integrity of the individual in question.(40) It would be unrealistic and indeed irresponsible for an international court to be blind to a State's interest in the protection of its national security and the personal safety of its agents. Such an attitude would run counter to a tradition of due judicial regard for such interests and for the State's assessment of when they may be in jeopardy. Nevertheless, these interests must be balanced against other important and potentially competing interests.

These would include the interests of victims, or indeed of the international community as a whole, in seeing an end to impunity in respect of the "most serious crimes of concern to the international community...."(41) To meet the challenge of effectively administering international justice, the Court will be reliant on the provision of information from States. Through intelligence and other sources, States will often have access to information concerning the commission of genocide, crimes against humanity and war crimes that will be essential to successfully bringing to justice perpetrators of these serious crimes.

There are also compelling interests of the accused and of the international community in ensuring that judgments of the Court are just, rendered in the light of all relevant information, and that the right to a fair trial is absolutely guaranteed. If exculpatory or probative information is withheld by States, miscarriages of justice may ensue. We believe that it is critical to the credibility of the ICC that it observe unequivocally the right of the accused to prepare his or her defense; an essential an essential component of which is access to information of potential relevance to the defense.

The scope of the privilege

Given the fundamental nature of these interests, any national security privilege which might impinge upon them must be strictly formulated and clearly defined. Human Rights Watch believes that such a definition should be consonant with the established interpretation of the term as it is employed in international human rights instruments. The term "national security," as used as a limitation on rights in the International Covenant on Civil and Political Rights, has been interpreted restrictively as "serious cases of political or military threat to the entire nation"(42) or "an imminent threat to the very existence of the nation."(43) It does not embrace situations where there are merely local or isolated threats to law and order or to the legitimacy, reputation or authority of any particular government of the moment or group of national leaders, or where the threat posed is not of a serious nature. Broader, vague or potentially wide-ranging formulations should be rejected. Only where the prejudice to national security that would result would be genuine and serious should such a provision operate.

Moreover, and of critical importance, is the inclusion of a provision making clear that it is ultimately for the Court to determine the applicability of the exception in any concrete case. Human Rights Watch strongly urges delegates to follow the guidance of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in the case of the Prosecutor v. Tihomir Blaskic, which stated: "Taking into account the interests at stake, namely those of the international community in the restoration of peace and the bringing of justice to the former Yugoslavia, the International Tribunal is best positioned to ascertain the legitimacy of a claim of privilege."(44)

The Court's Statute must ensure that any national security exception cannot be successfully used by recalcitrant states (or by individuals supported by States) as a pretext for interfering with the course of justice.(45) Any provision for a national security exception must not facilitate the withholding of information to avoid incriminating the State itself or its political leadership at any moment, or to shield possible criminals from prosecution.

Recommendations on the Draft Statute

Our recommendations below track the parts of the Statute in which national security and related questions of confidentiality have arisen. As the recommendations below indicate, the principles set out above govern each of the following provisions.

The following recommendations relate to national security issues as they have arisen in the following contexts: Article 82(5)[55(5)] on the duty of the Court to keep confidential information provided solely for the purpose of generating new evidence; Article 82(2)[55(2)], possible grounds for refusing other forms of cooperation; Article 62[44], evidence; Article 61[43], the protection of victims and witnesses; and Article 51[27], orders for the conduct of the trial (including disclosure). Where national security is specified as a grounds for demanding confidentiality or refusing cooperation, Human Rights Watch believes that the Statute should clearly establish the mechanisms for requesting such measures, the relevant criteria for assessing genuine and serious prejudice to national security, and the role of the Court as the ultimate arbiter of the issue.


Article 82(2)[ILC Art. 55(2)]

"The State party may deny a request for assistance in whole or in part only if :....

(c) execution of the request would seriously prejudice its national security, ordre public or other essential interests;

(c) bis the request concerns the production of documents or disclosure of evidence which relates to its national [security] [defense]."

Recommendation 1:

As stated above, the term "national security" should be restrictively defined in the Statute. Challenges to a request for assistance should only be on the basis of a "serious" threat to national security, as stipulated in the introduction above. States should not be permitted to deny cooperation on the basis of "ordre public" or the broad and potentially wide-reaching "essential interests." Delete the provision which would allow States Parties to refuse a request for evidence on the basis that it "relates to" national security or defense, even where there was in fact no prejudice to national security interests.

  • Comment:

In the interest of clarity and to avoid susceptibility to abuse, national security must be defined as clearly as possible(46) and in line with the meaning attributed to this exception as contained in widely ratified human rights instruments.(47) The term "ordre public," while contained as a limitation on rights in international human rights instruments, has had an extremely variable meaning in different legal systems and has been much criticized in the context of state responsibilities vis-a-vis human rights. To the extent it means "prevention of disorder or crime" it clearly is an interest of lesser magnitude than "national security," and to the extent it reflects public policy, or community interests or standards, it has such a variable content based on national circumstances as to render it a questionable criterion for the determination of state responsibilities in a multilateral context. Moreover, the phrase "essential interest" is dangerously vague. Delegates are urged to delete these potentially wide-ranging references.

Human Rights Watch expresses particular concern at the reference to evidence which "relates to" national security or defense. In our view, any national security or other provision which may affect the fundamental obligations and interests set out in our introductory remarks, should only be permissible where there is a well-founded basis for believing that compliance with the request would in fact seriously prejudice national security. Potentially, a great deal of material could relate in some tangential sense to national security; this provision could lead to potentially relevant material being withheld from the Court, and therefore a defendant, although its disclosure would in no way prejudice national security.

Recommendation 2:

Amend Article 82(2)[55(2)] to make clear that ultimate authority rests with the ICC, and not the State concerned, to determine the legitimacy of the claim for national security privilege. A mechanism should be established to ensure that States have adequate opportunity to make confidential representations to the Court as to the prejudice to their national security which would result from compliance with the request.

Human Rights Watch considers it critical that the Statute protect the ultimate authority of the Court to verify the legitimacy of any claim made on the basis of national security, and to accept or reject the legitimacy of such a claim. If abuse is to be avoided, the decision must not be taken unilaterally by the interested State itself. A mechanism should be established whereby States can lodge claims and have a full opportunity to explain the national security concerns to the Court, with the confidentiality of those proceedings safeguarded. In the exceptional circumstances where national security is invoked, this may involve in camera [ex parte] hearings.(48)

Details as to precise mechanisms could, we suggest, be elaborated in the rules of the Court under Article 43[19].(49) The Statute must, however, establish the essential principle that the ultimate authoritative decision lies with the Court, not the individual State.

In accordance with the retention of ultimate authority by the Court, the heading of this article should not be "grounds for refusal." A State would not be legally entitled to "refuse," but rather to petition that the Court, in the light of its submissions, withdraw or alter a request.(50)


Article 82(5)[ILC Art. 55(5)]

"(a) The Court shall ensure the confidentiality of documents and information except as required for the investigation....

(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.

(c) The requested State may...subsequently consent to the disclosure of such documents or information...."


Amend Article 82[55](5) to vest in the Court the ultimate authority, in exceptional cases, to decide on the use to which information made available to it will be put. The Court should have due regard to the national security of the State, and the State must have adequate opportunity to make representations to the Court in support if its request that the information be used solely for the purpose of generating new evidence. However, where the Court deems it necessary to protect the interests of justice, and considers legitimate national security concerns lacking, it must not be precluded from using the information by the State's request for confidentiality.

  • Comment:

Human Rights Watch recognizes the importance of States surrendering information to the Court, in accordance with the general obligation of States Parties to cooperate with the Court. However, it is essential that the Court does not surrender ultimate authority to decide what the interests of justice demand in any particular case. For example, the Court must not be prevented, in accordance with the proposed duty to disclose under Art 51[27], from disclosing to the defense information critical to the preparation of a defense which the State may have no legitimate interest in withholding.(51)

It should be noted that Article 82[55](5) does not in fact purport to be a "national security" exception; it imposes no restriction on the reasons why a State might wish evidence to be kept confidential. The State could limit the Court's use of important information for any or no particular reason. This would entirely undermine the obligatory nature of full cooperation and compliance with the Court's requests, as provided for in this part of the Statute.

The Statute must guard against the situation wherein a State, by surrendering information or evidence under this article, can control the information and preclude its use in respect of a particular crime or against a particular suspect. This would clearly expose the Court to unacceptable political manipulation.(52) Genuine national security concerns of the State can be addressed through representations and challenges to requests for cooperation, as outlined in the forgoing recommendations, or challenges to disclosure, set out below. Legitimate safety concerns may be addressed through applications to protect witnesses under Article 43 below. In each case, the authority of the Court must be retained.


Article 62[ILC Art. 44]

"A person who gives evidence to the Court can invoke national security and national defense, as provided for by his/her national law, to prevent the disclosure of confidential information. The State would then verify the sensitive nature of the information...."


Establish objective criteria for the assessment of any claim to national security beyond the existence of variable national laws. Empower the Court, not the State, to be the ultimate arbiter of the legitimacy of a claim based on national security concerns. In the circumstances where the Court rejects a national security claim under this article, the Statute should provide that States will not prosecute solely for giving evidence to the Court in violation of national law.

  • Comment:

Variable national law should not be the benchmark to determine the Court's access to information or the use to which information can be put by the Court in the exercise of its functions. As set out above, any national security privilege must be established according to objective criteria and be clearly defined. It is for the Court to interpret and apply that definition, determining whether the national security privilege justifies non-disclosure in any given case.

Witnesses will have a legitimate concern to avoid falling foul of national criminal laws through the giving of evidence to the ICC; the Court would not wish to force an individual to violate his or her national criminal law. Where the Court rejects a national security claim in these circumstances, the State should not then be able to prosecute the individual for giving evidence to the Court in violation of national law. This would clearly be unfair to the witness in question and would additionally impede the Court's ability to secure important evidence.(53) If the terms of national laws conflict with a State's obligations under the Statute, as interpreted by the Court, the State must make the necessary amendments to its law to give effect to its international obligations.(54)


Article 61[ILC Art. 43]:

"A State may make an application for necessary measures to be taken in respect of the protection of its servants and agents and the protection of sensitive information."


Support the ability of States to seek protection measures from the Court to protect the life or physical integrity of their agents and servants.

  • Comment:

Human Rights Watch acknowledges that the disclosure of information may, in certain circumstances, expose agents of the State to physical danger and the Court should be empowered to take measures it deems appropriate to address those concerns, consistent with the rights of the accused. This may include measures relating to the manner in which evidence is presented, such as in camera hearings, the use of pseudonyms, voice-altering mechanisms or redaction of documents, in line with the recommendations below.


Article 51[ILC Art. 27]

"The Court may make any further orders...

(b) requiring disclosure to the defense....

(f) at the request of either party or a State or at the instance of the Court on its own volition, for the non-disclosure or protection of documents or information provided by a State the disclosure of which would [endanger][prejudice] the national security or national defense interests of a State in accordance with criteria to be specified in rules made pursuant to this Statute."


As stated previously, "national security" should be the relevant criterion, and broader formulations, such as "national defense" in this case, should be excluded.(55) The article should, in our view, provide that only serious prejudice to national security would justify an order for non-disclosure. A mechanism for representations to be made by the State, in accordance with previous recommendations, should also be established.

  • Comment:

In earlier Commentaries, Human Rights Watch recommended that Article 51[27] be amended to clarify that the prosecutor has a duty to disclose to the defense all evidence of potential relevance.(56) As an exception to this, non-disclosure of information relevant to the defense must be exceptional. For that reason this article should be restricted to circumstances where the prejudice to national security would be serious. We previously supported endowing the Preliminary Matters Chamber with the power to review disclosure and make any orders it deems appropriate under Article 27(5)(b); we support its authority to review and determine the applicability or otherwise of any national security privilege, as envisaged in (f).



Human Rights Watch believes that the question of applicable law is of central importance. Any discussion of this topic should, in our view, be framed by the following guiding principles. The first is the principle of legality, encompassing the requirement of certainty as to the law. In accordance with this principle, the Statute must set out the applicable law with the greatest possible degree of clarity. The second is the principle of equality and universality. As an international court charged with upholding international law, the Court must operate at all times within the parameters of that body of law, including the equal treatment of all accused persons, without discrimination on any basis, including nationality.(57)

Article 14 [ILC Art. 33]

"The Court shall apply: (a) this statute; (b) applicable treaties and the principles and rules of general international law; and, (c) to the extent applicable, national law."



Amend Article 14 [33] to provide that the applicable law will be firstly, the Statute,(58) and secondly, international law, which includes the general principles of law recognized by national legal systems. Delete any specific reference to national law, or amend to clarify that national law may be taken in account as a relevant fact, but not as binding law.

  • Comment:

The Statute clearly must be the primary source of law for the Court. In the interpretation of the Statute, for example in ascertaining the precise meaning to be given to particular defendants' rights under the statute, the Court will have regard to the body of international law. The Court is an international court with jurisdiction over crimes that offend the conscience of humankind, over which there is universal jurisdiction. As such, and as a Court whose objective must be to make enforceable international law, the relevant standards to be applied by the Court are the standards of international law.

"General principles of law recognized by civilized nations" is one of the sources of international law, as established in Article 38 of the statute of the International Court of Justice.(59) As such, the reference in the recommendation above to international law comprises the principles and rules of law generally recognized in national legal systems.(60) If delegations consider it necessary in the interest of clarity, specific reference could be made to these principles of law as a source of applicable law. Such principles should apply in so far as consistent with the Statute and other sources of international law.

In the area of international criminal law, customary international and treaty law may not be sufficiently refined and developed at the present time to provide legal guidance on all matters concerning the application of the Statute that may arise.(61) General principles, derived from practice in a range of national legal systems, may be drawn upon to fill any potential lacuna.(62) The International Court of Justice has relied upon this source of law in the exercise of its judicial function,(63) as has the International Tribunal for the Former Yugoslavia.(64)

Human Rights Watch supports the strong position of one delegation in its opposition to the direct application of any one national legal system.(65) It is widely accepted that the fact that a State does not criminalize genocide within its own legal system is not determinant of the Court's jurisdiction over nationals of that state who commit genocide. Similarly, specific provisions of the national law of the state of nationality of the accused, or the state of the territory on which the crime was committed etc, should not be directly applied. National legal standards will inevitably vary; national laws may themselves be discriminatory or otherwise inconsistent with international law. Even where national laws are not incompatible with international law, we believe that an individual should not be treated more, or less, favorably in the prosecution of these crimes on the basis of his or her nationality. Moreover, Article 14[33] as presently drafted, offends the principle of legal certainty. The reference under the title "applicable law" to national law "to the extent applicable" clearly begs the question.



Include a provision making explicit that, in the application of the Statute and Rules, and in the exercise of the functions mandated to it, the Court will operate at all times in a manner consistent with international human rights law, including the prohibition on adverse discrimination.

  • Comment:

As stated above, the ICC will be an international institution charged with enforcing jurisdiction in respect of the most serious international crimes. It is essential to the credibility and legitimacy of the Court that it observe the highest standards of international justice. As such, it must at all times observe the requirements of international human rights law. This affects many aspects of the Statute, including the need for unequivocal respect for the rights of the accused and the duty of the Court to exercise its functions without adverse discrimination on the basis of gender, race or other grounds.(66) Delegates are accordingly urged to include specific reference to the duty of the Court, in the exercise of its functions, to act at all times in a manner consistent with international human rights law.


Article 13 [ILC Art. 42(2)]

"2. A person who has been tried by another court for acts constituting a crime of the kind referred to in article 5[20] may be tried by this Statute only if:

(a) the acts in question were characterized by that court as an ordinary crime and not as a crime which is within the jurisdiction of the Court.

(b) The proceedings in the other court were not impartial or independent or were designed to shield the accused from international criminal responsibility or the case was not diligently prosecuted."

Recommendation 1:

The inclusion of the non bis in idem rule, as enshrined in Article 13(2), should be supported. Amend the provision to permit the ICC to try a person already tried by another court where that court did not characterize the crime as one within the jurisdiction of the ICC, as reflected in Article 13(2)(a). The reference to "ordinary crime" should be replaced by a reference to different crimes than those enshrined in Article 5.

  • Comment:

Human Rights Watch supports the principle of non bis in idem, as a fundamental right of the convicted person. We consider it important, in the interests of justice, that crimes be classified appropriately; torture is quite a different crime than bodily harm, for example, and the latter in no way reflects the egregious nature of the former. We believe, however, that the wording "ordinary crime" is uncomfortably vague and superfluous. Reference only to crimes other than those within the jurisdiction of the Court would, in our view, be clearer.

Recommendation 2:

Support inclusion of Article 13(2)(b)[42(2)(b)] allowing international prosecution where the national court's proceedings were not impartial or independent or were designed to shield the accused from international criminal responsibility or the case was not diligently prosecuted. Insert a provision to further allow international prosecution where the national court imposed a trivial or discriminatory sentence, not commensurate with the gravity of the crime committed.

  • Comment:

Delegations must ensure, while protecting this fundamental principle of non bis in idem, that the principle is not abused to shield perpetrators from the reach of international justice. Paragraph (b) goes some way towards doing so. Permitting ICC jurisdiction in cases where a sentence was grossly disproportionate to the gravity of the crime committed is, however, also necessary in order to prevent national jurisdictions from evading justice by imposing trivial or discriminatory sentences. Where such an unjust sentence is imposed, that should be grounds for the Court to assume jurisdiction without further evidence of the national court's lack of independence, impartiality, or any state intent to shield the guilty party from justice. Where a national court has imposed an inadequate sentence and the Court admits the case and finds the accused guilty of a crime within its jurisdiction, the time served for the conviction under national law should count towards the sentence, imposed by the Court for the same crime. In addition, extending the ICC's jurisdiction in such instances would ensure the competent adjudication of crimes of sexual violence, for which many national jurisdictions routinely impose disproportionately lenient sentences.


Recommendation 1:

Insert a new article into the Statute empowering the Court, upon finding a defendant guilty, to make appropriate orders for reparations against the convicted person in favor of victims or their representatives.

  • Comment:

Victims and their representatives have a right to reparations under international law in respect of serious violations such as those falling within the jurisdiction of the Court.(67) Human Rights Watch suggests that the most efficient way for the international community to make effective the exercise of this right would be through the mechanism of the ICC.(68)

Consistent with emerging international legal norms,(69) reparations must be understood, in a broad sense, to "include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition."(70) Human Rights Watch believes that in the not infrequent circumstance that the perpetrator of serious crimes has benefited financially from those wrongs, and the victims have suffered great economic hardship, it is essential that the Court be empowered to order restitution to the victims. However, in addition to the critical economic implications of reparations orders, the symbolic importance of certain of the types of reparations mentioned in the Draft Principles, such as commemoration of victims or apology and public acknowledgment of the facts surrounding the crimes, should not be underestimated. The making of reparations from perpetrator to victims can play a critical role in the healing process of victims and societies as a whole, and is itself a factor in preventing future violations.

In line with emerging principles, the Statute should also adopt a broad approach to the definition of victim for these purposes. For example, international bodies have recognized that society as a whole can, in certain circumstances, be the victim of violations. Correspondingly, the Court should be able to make such reparations orders as it deems appropriate for the benefit of individuals or broader categories of victims.(71)

We believe that the Statute should establish the power of the Court to make such orders and the Rules of Procedure should address practical questions such as the stage at which victims would present their claims, what the form of such claims should be, and the role of the Victim and Witness Protection Unit or other Unit in facilitating such claims.

Recommendation 2:

Empower the Court, for the purpose of reparations or restitution, to order the seizure or forfeiture of assets that are either the objects of crime, or that are owned by or in the possession of the convicted person.

  • Comment:

As it is necessary to give effect to the above recommendation concerning reparations, in our Commentary for the December Preparatory Committee, Human Rights Watch supported the proposal that the Court be empowered to provisionally forfeit and seize objects of crime or other assets belonging to the convicted person.(72) We recommended that the Court also have the power to provisionally seize property during the investigation pending resolution of a claim for reparations. The Court must also be authorized to permanently retain any assets provisionally seized.

Recommendation 3:

Oppose the proposal that in light of a judgment of the Court's Trial Chamber, victims be limited to pursuit of a civil remedy under national systems, rather than be allowed to claim a decision on reparations from the ICC itself.

  • Comment:

Human Rights Watch believes the Statute must recognize the reality that where national systems have, by definition, been unwilling or unable to administer criminal justice, it is unlikely that those systems will be able or willing to give effect to the victims' right to reparations. Making domestic civil proceedings an exclusive recourse for victims is particularly problematic due, among other things, to the expense often associated with such proceedings and the victims' frequent inability to pay.

Human Rights Watch is dedicated to protecting the human rights of people around the world.

We stand with victims and activists to bring offenders to justice, to prevent discrimination, to uphold political freedom and to protect people from inhumane conduct in wartime.

We investigate and expose human rights violations and hold abusers accountable.

We challenge governments and those holding power to end abusive practices and respect international human rights law.

We enlist the public and the international community to support the cause of human rights for all.

Kenneth Roth is the executive director and Jonathan Fanton is the chair of the board.

1. Following the ICJ precedent, under Article 108 of the U.N. Charter, the U.N. Charter could be amended to allow for the creation of the ICC as an additional U.N. Organ.

2. As anticipated by Article 7(2) of the U.N. Charter, which states that "subsidiary organs as may be found necessary may be established in accordance with the present Charter," the General Assembly (Article 22) and the Security Council (Article 29) are empowered to establish subsidiary bodies.

3. The Court would then enter into an agreement with the U.N. establishing the nature of the relationship between the two organizations.

4. The Human Rights Committee established under the International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, (U.N. G.A. Resolution 2200 A XXI) 999 U.N.T.S. 171, and other human rights monitoring bodies enjoy this relationship with the U.N.

5. Establishing a new principal organ would require amendment of the U.N. Charter. By virtue of Article 108, any such amendment would require a two-thirds majority of members of the General Assembly. It is questionable whether such a majority would be achieved, even after considerable delay.

6. See the International Law Commission Commentary to the ILC Draft Statute for International Criminal Court, in the Report of the Law Commission on the Work of the Forty-sixth Session, 2 May-22 July, 1994, U.N. GAOR, 49th session, Supp. No.10, p.46. Such an arrangement is anticipated in Article 7(2) of the U.N. Charter.

7. The amendment procedure is provided for in the Final Clauses section of the draft Statute: Part 11, Article 93 [ILC Art.C].

8. For example, the Committee against Torture, created by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 17; GA Res. 39/46, UN GAOR, 39th session, Supp. No. 51, p.197.

9. Undoubtedly, the costs involved in the establishment and operation of this Court will be substantial. For a study of the financial implications, see, generally, Tom Warrick, Organization of the International Criminal Court: Administrative and Financial Issues in The International Criminal Court: Observations and Issues before the 1997-98 Preparatory Committee and Administrative and Financial Implications, Association Internationale de Droit Penal, 1997.

10. See for example, the U.S. Proposal to the ad hoc committee in 1995, which supported the three aforementioned sources of funding.

11. The question of ratification is dealt with at Recommendation C.2 below.

12. This was the experience of certain bodies, such as the Committee on the Elimination of Racial Discrimination and Committee against Torture. While they began their lives funded by States Parties, crises brought about by non-payment lead them to transfer to the regular budget of the U.N.

13. See for example, Article 9(3) of the Constitution of the International Labor Organization which provides that "A certain number of the staff of the International Labor Office shall be women."

14. See Section F on Applicable law in this Commentary.

15. This comment relates to reservations, which "...exclude or modify the legal effect of certain provisions of the treaty in their application to that State." Article 2(1)(d) of the Vienna Convention on the Law of Treaties, U.N. Doc.A/Conf.39/27. As such, they should be distinguished from interpretative declarations that do not purport to exclude or modify the legal effect of the treaty but simply declare a state's interpretation, which have no legal consequences. D.W. Bowett, Reservations to a Non-Restricted Multilateral Treaties, 48 B.Y.I.L. 67, 68.

16. Human Rights Committee, General Comment on Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or the Optional Protocols thereto or in Relation to Article 41 of the Covenant ("General Comment 24") para 1: "It is important for States Parties to know exactly what obligations they, and other States Parties, have in fact undertaken. And the Committee, in the performance of its duties...must know whether a State is bound by a particular obligation or to what extent."

17. The International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, (U.N. G.A. Resolution 2200 A XXI) 999 U.N.T.S. 171, and entered into force on May 23, 1976.

18. Human Rights Committee, General Comment 24, ibid.

19. United Nations Convention on the law of the Sea, opened for signature Dec. 10, 1982 - U.N. Doc. A/CONF.62/122 (1982), reprinted in Official Text of the U.N. Convention on the Law of the Sea, U.N. Sales No. E.83 V.5 (1983).

20. Other examples include the 1966 International Covenant on Civil and Political Rights (which established the Committee on Human Rights) and the 1966 International Covenant on Economic, Social and Cultural Rights--Articles 49 and 27, respectively, requiring 35 ratifications--which entered into force only ten years later.

21. The Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), and the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), provide at articles 23(1) and Article 95 respectively: "this Protocol shall enter into force six months after two instruments of ratification or accession have been deposited." Both Protocols were adopted on June 8, 1977 and entered into force eighteen months later.

22. The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 9 December 1948, U.N. G.A. Resolution 260 A (III), article 13, required 20 ratifications and entered into force in 13 months.

23. The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, adopted at Geneva, 10 October 1980.

24. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), 10 December 1984, U.N. G.A. Resolution 39/46, Article 27(1), required 20 ratifications and entered into force in two and a half years.

25. The Convention on the Rights of the Child, 20 November 1989, Article 49(1) required 20 ratifications and entered into force in ten months.

26. The ICCPR does not permit withdrawal, given that the treaty codifies universal human rights. The Human Rights Committee's General Comment No. 26 (Human Rights Committee, 61st Sess., Add. at 1, U.N. Doc. ICCPR/C/21/Rev.1/Add.8, 1997), stated that the ICCPR "does not have the temporary character typical of treaties where a right of denunciation is deemed to be admitted." However, the ICCPR (Art. 41(2)) and the Optional Protocol adopted Dec. 16, 1966, 999 U.N.T.S. 302 (Art. 12(1)), both allow a party to withdraw from its recognition of the Human Rights Committee's competence.

27. International Convention on the Elimination of All Forms of Racial Discrimination (Convention on Racial Discrimination), Art. 21 adopted December 21, 1965, G.A. Resolution 2106; 660 U.N.T.S. 195.

28. In 1 A Compilation of International Instruments 304, 306:

"Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective." Art. 31(2).

29. Article 70 provides that:

"(1) Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(b) Does not affect any right, obligation, or legal situation of the parties created through the execution of the treaty prior to its termination.

(2) If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect."

30. European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Adopted Nov. 4, 1950, 213 U.N.T.S. 222, 252.

31. Article 65(1) of ECHR.

32. It would be anomalous to require a court order where the Court had deferred jurisdiction, but not in the other circumstances which may be covered by Article 48 [26 bis].

33. See Article 12[36], "Challenges to jurisdiction."

34. This could be particularly important to protect victims of sexual violence. Recent history testifies to the frequency with which rape and other sexual violence is used as a weapon of war. Given the consequent likelihood that mass or successive rapes may come before the ICC, witnesses may have to testify, with traumatic results, against numerous defendants in the same or separate proceedings.

35. For example, Article 14(3)(e) of the International Covenant on Civil and Political Rights, Article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 8(2)(f) of the American Convention on Human Rights.

36. This recommendation is consistent with the rules of both ad hoc tribunals (Rules 759(c) and 95(c)) which state, in relevant part: "A Trial Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation."

37. Article 9(5) of the International Covenant on Civil and Political Rights provides: "Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation."

38. Article 14 of the ICCPR.

39. Consistent with our recommendations in the section dealing with "applicable law", the reference to "in accordance with law" would refer to the Statute and, in this case, the Rules of the Court, as well as relevant international law.

40. Note that the protection of life or physical integrity would not, in general, be treated as part of the national security privilege, but is a separate legitimate state concern, dealt with in the context of Article [43].

41. Preamble to the Draft Statute.

42. Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, p. 355.

43. The Siracusa Principles on the Limitation and Derogation Provisions of the International Covenant on Civil and Political Rights, a creation of an eminent gathering of international jurists, state that limitations in the name of national security are justified "only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force." Scholarly contributions to this document, however, note that the European Convention distinguishes grounds such as "territorial integrity," "public safety" and "economic well-being" from "national security," suggesting that while such interests may have a national security dimension, not all threats to such interests rise to the level of a threat to national security. Bert B. Lockwood, Jr., Janet Finn and Grace Jubinsky, "Working Paper for the Committee of Experts on Limitation Provisions", Lockwood, Finn and Jubinsky, Human Rights Quarterly, Vol 7.

44. IT 95-14PT, July 18 1997 p. 149.

45. As provided for in Article 44, supra, which allow an individual to assert national security and the state to verify the claim.

46. The importance of narrowing the scope of national security exceptions and dangers associated with not doing was expressed by the drafters of the International Covenant on Civil and Political Rights (ICCPR), in the following terms: "If limitations were not clearly defined, but couched in general terms, there was little guarantee that rights would not be violated....In the name of 'public order' many a saintly character has been crucified, in the name of 'national security' many a patriot guillotined." 10 UN GAOR Annexes (Agenda item 28) p.9, UN Doc, A/2929 (1955)

47. National security is referred to in Articles 12, 13, 14, 19, 21 and 22 of the ICCPR, as a justification for restricting certain rights protected in that instrument. One commentary on the provisions states that "'National' indicates that the anticipated danger must relate to the country as a whole...." while security relates to the "use of force or threat of force against the political independence or territorial integrity of another state." Working Paper for the Committee of Experts on Limitation Provisions, Lockwood, Finn and Jubinsky, Human Rights Quarterly, Vol 7, No. 1, Feb.1985, 35, at p.71.

48. Guidance should be sought from the judgment of the Trial Chamber of the ICTY in the forementioned Prosecutor v. Tihomir Blaskic case which stated, at para. 148: "Consequently, for the purpose of determining the validity of the assertions of a particular state relating to national security concerns, the Trial Chamber may hold in camera hearings , in a manner consistent with rules 66(c) and Rule 79. Furthermore, with a view to safeguard the secrecy of the information it may initially conduct ex parte hearings in a manner analogous to that provided to the Trial Chamber or Judge and not necessarily to the requesting party...."

49. Such a proposal has been made in the context of Article 27 and appears in the current draft text of that Article.

50. We recognize that this heading applies to other "grounds" beyond national security. As Human Rights Watch opposes the inclusion of unilateral "grounds of refusal", and supports the ultimate authority of the Court to determine such matters, this deletion would be consistent with our views on the question of state cooperation and compliance.

51. See recommendation below.

52. It is noted that where the Court wishes to disclose information to the accused, pursuant to Article 27, the State has the right to challenge that disclosure and seek an order of non-disclosure, under Article 27 (f).

53. Intelligence agents, for example, will often have access to information critical to the effective prosecution of serious crimes.

54. The Vienna Convention on the Law of International Treaties, adopted May 23, 1969, sets out the principle of pacta sunt servanda in Article 26, and Article 27 establishes the related principle that, in the event of a conflict between national and international law, the latter prevails: "Internal law and observance of treaties: A party may not invoke the provision of its internal law as justification for its failure to perform a treaty...."

55. See definition set out in the context of Article 82(2) [55(2)] above.

56. See the HRW Commentaries for the August and December Preparatory Committees on the Establishment of an International Criminal Court.

57. See, for example, Article 26 of the International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, (U.N. G.A. Resolution 2200 A XXI) 999 U.N.T.S. 171, which provides that "all persons are equal before the law and are entitled to the equal protection of the law. In this respect the law shall prohibit any discrimination, and guarantee to all persons the equal and effective protection against discrimination on any ground such as race, color, sex, language, religion or nationality...."

58. The Statute includes the Rules of the Court adopted pursuant to Article 43[19] of the Statute

59. Article 38(1)(c) of the Statute of the International Court of Justice, I.C.J. Acts and Documents, No 5 ("ICJ Statute")

60. In the words of Lord McNair, then judge on the International Court of Justice, "[i]t is not the concrete manifestation of the principle in different national systems- which are anyhow likely to vary- but the general concept of law underlying them that the international judge is entitled to apply under paragraph (c)." South West Africa case, I.C.J.Rep(1950), p.148

61. A paper submitted by the Canadian delegation to the 1996 Preparatory Committee, which Human Rights supports, recognizes that on certain issues there is no developed body of international criminal law, such as on the question of applicable defenses, but that such a body is developing. This body of law will clearly continue to develop and guide the Court in the future.

62. In the opinion of the Advisory Committee of Jurists on Article 38(1)(c) filling lacunae in treaties and customary international law was one of the objectives of including (c) within the sources of international law. Permanent Court of International Justice, Advisory Committee of Jurists, Proces verbaux of the Proceedings of the Committee (June 16-July 24 1920, L.N. Publication, 1920, p 335

63. See the North Sea Continental Shelf case (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands - ICJ, 1969, 4) and the Diversion of Water from the Meuse case (Netherlands v. Belgium, PCIG, Ser. A/B, No. 70, 76-78. 4 Hudson, World Ct.Rep 172, 231-33).

64. See for example, the recent case of Prosecutor v. Drazen Erdomovic, ICTY, IT-96-22-A, (1996), p 41.

65. See the proposal of the Canadian delegation at Proposal II of the Zutphen draft and the background paper on the matter submitted to the March 1996 PrepCom.

66. See for example, Article 26 of the ICCPR.

67. The right to reparations is enshrined in various international instruments. In some the principle is embodied in the right to an "effective remedy," as in Article 8 of the Universal Declaration of Human Rights and Article 2(3)(a) of the ICCPR, while others, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, contain express provision for an "enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible." (Article 14) The duty of the state to make reparations to victims of serious violations of human rights and humanitarian law is made express in, for example, Article 3 of the Hague Convention IV. The duty to "ensure" the rights protected in the American Convention on Human Rights has been interpreted by the Inter-American Court on Human Rights as involving the duty of the state to investigate, prosecute, punish and provide adequate compensation. See Velasquez Rodriguez Case, Series C No. 4, at p. 166.

68. This provision would not affect the international obligation of the State to provide reparations.

69. The Inter-American Court on Human Rights concluded, in its judgment on reparation in the Velasquez Rodriguez Case, supra, that "Reparation of harm brought about by the violation of an international obligation consists on full restitution which includes the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm."

70. The "Basic Principles and Guidelines on the right to Reparation for the Victims of [Gross] Violations of Human Rights and International Humanitarian Law." The Principles were prepared by Professor Theo Van Boven pursuant to U.N. Commission Human Rights Resolution 1997/27.

71. In these circumstances, given the vast numbers of individuals, their representatives and groups who may be victims of the crimes within the jurisdiction of the Court, the power of the Court to award forms of reparation of a broader symbolic, rather than purely financial, nature will be of particular importance.

72. This proposal was made at the August Preparatory Committee by the French delegation.