The undersigned members(1) of the CICC Steering Committee share a number of serious concerns that certain provisions and proposals before the International Criminal Court (Court) Preparatory Commission threaten the integrity of the Rome Statute. In addition to other matters of concern to members, the following issues are of particular concern:
1. Any proposal that would narrow the Court's ability to exercise its jurisdiction, including the current proposal by the U.S. regarding Article 98 and the Relationship Agreement, must be rejected unconditionally.
The U.S. Proposal would constitute a substantial amendment to the jurisdictional framework of the Rome Statute. Based on proposals that were decisively rejected in Rome, it would reverse key Rome compromises regarding the exercise of jurisdiction and the limited ability of the Security Council to prevent investigations and prosecutions from going forward. Such amendments are governed by the provisions of Article 121, and are beyond the competence of the PrepCom to introduce through the Rules and the Relationship Agreement.
The U.S. Proposal would prevent the Court from trying nationals of non-state parties, unless that state consents or the Security Council otherwise decides. This would allow the Permanent Members of the Security Council to use their veto power to block the exercise of the Court's jurisdiction over their nationals and those of their allies. Such selective application of justice would seriously damage the credibility of the Court and violate the principle of equality before the law.
The proposed Article 98 Rule is objectionable in itself. It would expand the Article 98(2) exception, which only governs interstate agreements, to encompass agreements not contemplated under the Statute between the ICC and others. By licensing the Court to narrow its own jurisdiction, contrary to the Statute, the proposed Rule would invite ongoing efforts by states, particularly powerful ones, to seek exemptions in the future. This would erode the Court's authority and consequently its efficacy.
2. The requirement in the rolling text that a State or organization "actively promote or encourage…" the criminal conduct should be deleted from the chapeau to crimes against humanity.
Crimes against humanity do not necessarily require that the state or organization was active in promoting or encouraging the criminal conduct. A policy by a state or organization to commit an attack includes tolerating or acquiescing in, or failing to punish or prevent the commission of the crimes enumerated in the Rome Statute. To require the prosecutor to prove active support would be unrealistically onerous and unnecessary. The Court should be allowed to infer a policy from the fact that the acts have been committed on a systematic or widespread scale. The requirement of an active state or organizational policy would defeat one of the purposes of international criminal law, namely, to provide recourse for vulnerable individuals where protection is unavailable domestically.
Moreover, the "actively promote or encourage" language emerged as an alternative to the proposal made at the December PrepCom to exclude crimes against humanity committed against women and children relating to family matters. The current rolling text could be misinterpreted to accomplish the same impermissible objective, while also excluding increasingly common atrocities carried out by groups of persons who might not meet the criteria of an organization.
3. The Elements of Crimes should not narrow the scope of the crimes as defined under the Rome Statute or as established under international law.
Enslavement and sexual slavery: The proposed elements of enslavement and sexual slavery must not be restricted to acts involving commercial exchanges. By emphasizing "purchasing, selling, lending or bartering" and by linking 'similar deprivations of liberty' to this list, the elements threaten to exclude situations of slavery, such as forced labour or other servile conditions, which do not involve a commercial transaction. An exchange of money or other pecuniary benefit is not a necessary element of the crime of enslavement or sexual slavery. For example, the Nuremberg Tribunal characterized forced labour as enslavement and current case law recognizes rape and detention as sexual slavery. The Court's jurisdiction over slavery which is part of a widespread or systematic attack against a civilian population depends upon de-emphasizing the commercial exchange element and ensuring that forced labour and reducing a person to a servile status come within the scope of the crime.
Enforced disappearances: The proposed elements of enforced disappearances of persons should be revised to ensure the inclusion of crimes perpetrated by different persons at different stages of the crime, i.e, the arrest, detention or abduction of the person and the refusal to acknowledge the deprivation of liberty or to give information on the whereabouts of the disappeared.
Persecution: The proposal in footnote 25 to add the concept of "universally recognized" to qualify 'fundamental rights' should be rejected. This would be inconsistent with the Statute, which requires only that the grounds be universally recognized, and not the rights. The definition of persecution in the Rome Statute is already more restrictive than international law which does not require that the acts constitute 'severe deprivations' of rights. Further restrictions are unwarranted.
Knowledge element in war crimes: The common element in the rolling text of war crimes that "[t]he accused was aware of the factual circumstances that established the existence of an armed conflict" could pose insurmountable problems of proof. It should be deleted, allowing article 30 to govern.
1. *. The following members of the Steering Committee have subscribed to this joint statement as of June 6, 2000: Amnesty International, Asociaciòn pro Derechos Humanos, Fédération Internationale des Ligues des Droits de l'Homme, Human Rights Watch, Rights and Democracy, Lawyers' Committee for Human Rights, Women's Caucus for Gender Justice, World Federalist Movement - Institute for Global Policy.