INTERNATIONAL CRIMINAL COURT
Developments in 1999 underscored the urgency of the early establishment of the International Criminal Court (ICC) as victims of conflicts from East Timor to Sierra Leone lacked access to an independent and effective international tribunal to investigate and try those accused of crimes against humanity and war crimes. Further propelled by the Pinochet case, international support grew for the ICC as a pillar of an emerging system of international justice.
Growing Political Support
As of this writing, eighty-seven states had committed themselves politically to the ICC's objectives and purposes by signing the Rome Treaty. Heads of state and foreign ministers from France, the United Kingdom, Germany, Argentina, Canada, and Uganda, among many others, cited the importance their governments attached to the ratification of the Rome Treaty at the September opening of the fifty-fourth General Assembly session at United Nations headquarters in New York. The number and content of statements delivered from this high profile podium represented a qualitative leap from years past. This support went beyond rhetorical posturing. On a bilateral level, several states, includingGermany, France, Spain and Italy, played particularly active roles in urging ratification. In addition, intergovernmental organizations and entities including the European Parliament, the Council of Europe's Parliamentary Assembly, the Commonwealth Law Ministers, and the Francophonie all adopted strongly worded resolutions expressing their commitment to the treaty's early entry into force. These statements of political support increasingly laid the foundation of meaningful technical assistance to facilitate state ratification. Simultaneously, nongovernmental organizations renewed their efforts to highlight the importance of ICC ratification among civil society worldwide.
Since the end of the Rome Conference, all fifteen member states of the European Union have voiced a strongly supportive common position on the court. At the February and August Preparatory Commission sessions in New York, the German and then the Finnish presidency of the E.U. issued statements on behalf of the European Union. In addition, at the June summit of European Union and Latin American and Caribbean states in Rio de Janeiro, the E.U. emphasized the importance of ratification, a position approved in the summit's final communique. During the July-August Preparatory Committee meetings, E.U. member states met with E.U. associate states to discuss technical assistance on ratification for the latter. Building on this initiative, at its September meeting the Public International Law Working Group of the European Commission further refined these plans.
On May 26, the Standing Committee of the Parliamentary Assembly of the Council of Europe adopted Recommendation 1408 urging all member and observer states to ratify the Rome treaty as quickly as possible and adopt the legislation necessary to make national law consistent with the obligations of the treaty. Recommendation 1408 triggered consideration by Council of Europe expert bodies of technical assistance for member and observer states drafting national laws. As of this writing, the Council of Europe was planning a consultative meeting for early 2000 to discuss common problems arising from ratification.
At the Francophonie Summit in Moncton, New Brunswick, French President Jacques Chirac announced a commitment by the Francophonie to assist poorer Francophone states with ICC ratification. At the annual meeting of Commonwealth Law Ministers in Trinidad and Tobago, the ministers adopted a declaration putting priority on ratifying the treaty. At the OAS General Assembly Summit in Guatemala City in June the final communique included a reference to the ICC as part of a resolution on the enforcement of international humanitarian law. In an important show of support for the Rome Treaty, the 102nd Conference of the Inter-Parliamentary Union, as part of a larger focus on international humanitarian law, adopted a resolution in October calling on member parliaments to "ratify the treaty as soon as possible so that it may enter into force."
These resolutions and declarations set a positive context for the complex task of ratification. During 1999 the foundations were laid for an accelerated round of ratifications during 2000. As of this writing four states - Senegal, Trinidad and Tobago, San Marino, and Italy - had ratified the treaty. While these four proceeded with ratification before passing the domestic legislation necessary to implement the treaty, many other states were grappling with the constitutional and legislative challenge of putting such laws into place before ratifying. Among other countries, Belgium, South Africa, and France were far advanced in this process.
For many states the process of completing an accurate and verified translation of the treaty was long and painstaking. States also weighed the necessity of making changes to harmonize their constitutional norms on extradition, the immunity of heads of state and other officials, and possible life imprisonment, with the requirements of the treaty.
As in the pre-Rome conference phase, important discussion occurred in regional and sub-regional fora. States used such meetings to coordinate ratification planning. In March, representatives of the member states of the Caribbean Community and Common Market (CARICOM) met in Trinidad and Tobago to discuss ratification at a conference jointly sponsored by the government of Trinidad and Tobago and the non-governmental organization No Peace Without Justice. In July, representatives of eleven Southern African Development Community (SADC) states met for four days in Pretoria, South Africa. They adopted a Model Enabling Act to guide SADC member states in drafting enabling legislation. In early October representatives of sixteen central and east European and former Soviet states met in Budapest for a two-day conference on ratification convened by the Constitutional and Legislative Policy Institute. The Nordic states met regularly to discuss and coordinate their ratification efforts.
The Work of the Preparatory Commission
The Final Act of the Rome Treaty mandated the establishment of a Preparatory Commission to complete work drafting the elements of crimes for the offenses within the ICC's jurisdiction and the court's rules of procedure and evidence by June 30, 2000. In addition, but without a specific time limit, the Preparatory Commission was charged with drafting the definition of the crime of aggression, the relationship agreement between the court and the United Nations, and the headquarters agreement between the ICC and the host country. At its fifty-third session in December 1998, the General Assembly approved a resolution convening the Preparatory Commission. The resolution included an added directive to the Preparatory Commission to "discuss ways to enhance the acceptance and the effectiveness of the Court." This expansion of the Preparatory Commission's mandate was a concession to the U.S. government aimed at signaling an openness to considering additional proposals consistent with the integrity of the statute.
The Preparatory Commission held two sessions in the first part of 1999. Delegates met for two weeks in February and convened again for three weeks at the end of July. Another three-week session was scheduled for November and December. Before the Preparatory Commission sessions, Human Rights Watch issued a commentary to assist delegates in drafting the elements of crimes and rules of procedure and evidence. Consistent with its mandate, the Preparatory Commision convened a Working Group on Elements of Crimes and a Working Group on Rules of Procedure and Evidence. Drawing on an initiative by the International Committee of the Red Cross, the Swiss and Hungarian delegations circulated valuable proposals. The degree of knowledge and the specificity of intent for proving culpability were the most controversial aspects of the debate on elements.
The Working Group on Rules of Procedure and Evidence benefitted from important intercessional work. The French government convened an important four day conference on the role and interests of victims before the ICC in April. The International Institute of Higher Studies in Criminal Sciences hosted a week-long session in Siracusa to draft a text covering the difficult procedural and evidentiary issues in parts 5 (investigation) and 6 (trial) of the court's statute. Through cooperation between the French and Australian delegations, which presented theprincipal proposals on these issues, significant progress was made in crafting procedural mechanisms that melded the best aspects of the world's different legal systems.
In response to strong concerns by Arab League states over the importance of progress in defining the crime of aggression, the bureau decided to convene a working group on aggression that would meet three times during the November-December session.
The like-minded group of states formed in the pre-Rome period, now numbering nearly seventy, continued to meet during 1999. At the February Preparatory Commission they adopted several principles of unity suited to the needs of the Preparatory Commission and ratification.
As state signatories and expressions of political support for the court increased, some within the Clinton administration recognized the embarrassment the United States faced over its isolated opposition to the court. The U.S. had criticized the Rome treaty, claiming it contravened international law, and had vowed to oppose the court. In 1999, with the reality of an International Criminal Court growing, U.S. government officials indicated a shift in the U.S. position in order to allow President Clinton to sign the treaty. At both the February and July-August sessions of the Preparatory Commission, the U.S. delegation conducted extensive bilateral meetings with delegates. While not presenting any written proposals, U.S. officials floated various ideas to gauge the delegates' reactions. By the end of August it appeared that those most directly involved in the negotiatios understood that previous calls for a major substantive revision of the completed treaty by amendment or protocol were not viable.
At this writing, the specific content of the U.S. proposal expected for the November-December Preparatory Commission session was unknown. While many in the like-minded group sought to extend a cooperative hand to the Americans, this willingness was limited by the reality of a completed treaty and the stated commitment of the like-minded group and many other states to defend its integrity. At the July-August Preparatory Commission European Union states and the like-minded group resolved that a coordinated response to the expected U.S. proposal was an appropriate agenda item for their respective groupings. Whether the Clinton Administration would abandon its previous insistence on the Department of Defense requirement of an absolute, "100 percent guarantee" that no American would ever be investigated or tried by the court, and would advance reasonable proposals remained to be seen. The United States would risk a major diplomatic rebuff if it were to proceed without formulating a realistic bottom line.
The Role of the NGO Coalition (CICC)
The coalition of nongovernmental organizations (CICC) that came together in the years before the Rome Conference and played an important role in Rome adjusted to the demands of the new and greater challenges to press the initial sixty states to ratify the treaty. The CICC continued to circulate invaluable information on ICC developments and the CICC staff coordinated efforts to gather the information necessary to make an objective worldwide assessment of the possibilities for ratification.
The CICC launched a worldwide campaign for ratification at the Hague Appeal for Peace in mid-May. As the locus of ratification shifted to capitals, members of the CICC planned and participated in important regional conferences and the CICC became more active in South America. In particular, it coordinated a network of NGOs interested in promoting ICC ratification in Latin America, where it was organizing a series of six regional seminars. Those in Mexico and Chile were to take place in 1999. Those planned for Colombia, Costa Rica and Brazil were scheduled for the following year. These seminars were to bring together parliamentarians, ministry officials and NGOs. CICC staff and activists from regional member organizations attended the General Assembly session of the OAS to advocate on behalf of the ICC with delegations from the region's capitals.
The Work of Human Rights Watch
Human Rights Watch viewed an independent and effective International Criminal Court as a critical pillar of an emerging system of international justice, complementing more vigorous national prosecutions. Building on its commitment to the court, Human Rights Watch staff members sought to develop strategy and tactics appropriate for the demands of ratification. To this end, staff members traveled to capitals in Latin America, Europe, the Middle East and North Africa, southern Africa, and the South Pacific to meet with government officials and colleagues from nongovernmental organizations to be able to better assess ratification possibilities. From such meetings, Human Rights Watch decided to focus on obtaining both political support and technical assistance on a multilateral and bilateral basis as key levers to accelerate the treaty's early entry into force. In particular, Human Rights Watch worked with the Council of Europe, the European Union and the Organization of American States. Recognizing the importance of regional and subregional concentrations, Human Rights Watch identified those regions where the initial sixty ratifications were most likely and formulated a series of regional activities to facilitate coordinated discussion and planning. Human Rights Watch also assisted in planning and participated in the important ratification conferences that took place in Pretoria and Budapest, as well as attending other important conferences and events where the ICC was discussed. These included the Hague Appeal for Peace, the OAS General Assembly, and regional NGO meetings in Casablanca and Beirut.