SETTLEMENT OF DISPUTES
· Recommendation: The Court, and not the Assembly of state parties, should have competence over all disputes relating to the interpretation or application of this statute.
Comment: Article 108 deals with the settlement of disputes between state parties relating to judicial activities and to the interpretation or application of the statute. Option 2 proposes that disputes "relating to the interpretation or application of this statute...shall be referred to the Assembly of states parties." This proposal would gravely undermine the role of the Court and allow state parties to usurp its judicial functions. Giving the Court competence over disputes relating to its judicial activities, and to the interpretation and application of the statute, is essential to the integrity of the statute and the independence and credibility of the ICC.
· Recommendation: The ICC statute should prohibit reservations.
Comment: Article 109 includes options80 which would permit reservations to the ICC statute.81 Reservations would undermine the force and moral authority behind the treaty and weaken the nature of the obligations embodied in it.82
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.83 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."84 Delegates are urged not to potentially undermine the role of the ICC by permitting reservations.
While reservations may encourage broader ratification of the statute, near-universal ratification is neither desirable, in and of itself, nor is it 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. Human Rights Watch therefore supports the prohibition on reservations, as proposed in Option 1.
With regard to the option to have no provision whatsoever on reservations, in the absence of any provision reservations would have to be interpreted in accordance with the Vienna Convention on the Law of Treaties. The Vienna Convention's prohibition on reservations that are "incompatible with the object and purpose of the treaty" would not be sufficient to protect the integrity of the ICC statute. The issue of whether a reservation is compatible with the object and purpose of the treaty will only be raised when another state lodges an objection to the reservation. In practice, state will often decline to object to reservations for a variety of reason.
In this context, the Human Rights Committee has noted that, given the reluctance of states to lodge complaints against other states, "[i]t necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant."85 If the ICC statute allows for reservations, then the Court must have the competence to determine the permissibility of the reservations automatically, without being dependant on any state to challenge the reservation in order to do so. In the case of the ICCPR, the Human Rights Committee has noted the absence of a state objection to a reservation should not be construed as an acceptance.
EARLY ACTIVATION OF PRINCIPLES AND RULES OF THE STATUTE
Article 113[96 bis]
· Recommendation: Retain the provision providing that states that have signed the statute shall refrain from acts that would defeat its object and purpose, with a view to accelerating the achievement of the shared goal of establishing the Court.
Comment: Article 113[96 bis] emphasizes the important principle enshrined in the Vienna Convention on the Law of International Treaties that states which have signed a treaty are obliged to refrain from acts which would defeat the object and purpose of the treaty.86 Although technically unnecessary, this principle bearsexplicit mention. Article 113[96 bis] also recognizes that signatory states have a responsibility to work towards the early establishment of the Court.
· Recommendation 1: The entry into force of the statute should not be delayed until the completion of the Rules of Procedure and Evidence.
Comment: Delaying the entry into force of the statute until the Rules of Procedure and Evidence have been completed serves no purpose and will have the practical and extremely undesirable effect of delaying the establishment of the ICC. The proposal that "This Statute shall enter into force [following the completion of the Rules of Procedure and Evidence]..." should be therefore opposed.
· Recommendation 2: 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.
Comment: The atrocities of recent history cry out for the early establishment of an independent and effective International Criminal Court. If widespread ratification for an effective and credible ICC is not achieved immediately, however, it should not hamper the Court from being established and being able to begin to carry out its crucial mandate.
The statute should require the lowest of the proposed number of state ratifications necessary for the treaty's entry into force. Delegates should avoid 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.87 The result was that it did not enter into force for 12 years, until 1994. A high number of required ratifications should not 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.88 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 ratifications to enter into force,89 as did the Conventional Weapons Convention,90 the Torture Convention91 and the Convention on the Rights of the Child92; the latter two treaties established bodies to monitor observance of the obligations assumed in the treaties. The objectives of the ICC treaty--and the urgency surrounding them--have much in common with the objectives underlying human rights and humanitarian law treaties.
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'sability to carry out its mandate should not be paralyzed by the often lengthy internal procedures prerequisite to ratification in a number of states.
As the Court ought, in our view, 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.
80 These options were added during the March-April 1998 Preparatory Committee.
81 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," British Yearbook of International Law, vol.48, pp.67-8.
82 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."
83 The International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, (U.N. G.A. Resolution 2200 A XXI) 999 UN Treaty Series 171, and entered into force on May 23, 1976.
84 Human Rights Committee, "General Comment 24", ibid.
85 Ibid, paras.17-18.
86 See Vienna Convention, Article 18(a): "A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when...it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty."
87 United Nations Convention on the Law of the Sea, opened for signature December 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).
88 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.
89 The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), December 9, 1948, U.N. G.A. Resolution 260 A (III), Article 13, required twenty ratifications and entered into force in thirteen months.
90 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, October 10, 1980.
91 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), December 10, 1984, U.N. G.A. Resolution 39/46, Article 27(1), required twenty ratifications and entered into force in two and a half years.
92 The Convention on the Rights of the Child, November 20, 1989, Article 49(1) required twenty ratifications and entered into force in ten months.
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