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ICC PrepComm Report

10 July 2000


Below is an update on the Preparatory Commission of the International Criminal Court which took place in New York from 12 to 30 June, 2000. Martha Baker, member of the WILPF (British) Section, participated in this PrepCom and provided a brief update on this meeting. Many thanks to Martha for her valuable work, engagement and contributions.

Please, find below the update, there is a need for us to lobby governments for ratification, particularly the US goverment to prevent them to get the rule they want.

The fifth meeting of the Preparatory Commission (prep-com) of the International Criminal Court (ICC) took place at the United Nations in New York from 12 to 30 June, 2000. The final act of the Rome conference that agreed on the text of the treaty creating the court established the prep-com. The prep-com was required to produce two documents by 30 June 2000: rules of procedure and evidence for the court and elements of crimes.

On behalf of WILPF, I attended one of the three three week meetings in 1999 and the entire final meeting. While there, I worked with the Women's Caucus for Gender Justice and the Coalition for the International Criminal Court. (WILPF is a member of both.)

The major remaining contentious issues at the beginning of the fifth prep-com involved the introduction ('chapeau') of Crimes Against Humanity and some of the elements of various crimes of sexual violence in the elements document. In the rules, there remained issues concerning the definition of victim, consent requirements in sexual crimes and, most seriously, a rule requested by the United States that could pave the way for a later agreement that the US wants that would, in effect, exempt all US personnel from the jurisdiction of the court without the explicit permission of the US government.

The elements group quickly agreed a provisional text on the remaining sexual violence crimes. An expansive footnote was attached to enslavement, defining it to include forced labour and trafficking and to conform with the Slavery convention. The same footnote was also attached to sexual slavery in both crimes against humanity as well as in war crimes. The prep-com also refined the definition of enforced sterilisation. An earlier prep-com had agreed text defining enforced prostitution, forced pregnancy, an expansive definition of rape, based, in part, on jurisprudence from the two ad-hoc tribunals for the former Yugoslavia and Rwanda, and other crimes of sexual violence.

This agreement was held hostage to agreement on the chapeau. In an earlier meeting, a tentative agreement was made requiring crimes against humanity to result after a government or organisational policy "directly encourages or promotes" the acts in question. This had been the result of a compromise where certain Arab countries had wanted an exemption for acts that were "family matters." Many delegations expressed their dissatisfaction with this text because it did not appear to allow for acquiesce or other inaction. In the end, those Arab countries and China refused to move, in the name of consensus. As a result, a footnote was attached that pleased no one and only ever so slightly diluted the need for a direct policy.

There were a number of delegations that wanted to restrict crimes against humanity to those crimes that were universally recognised. International law does not require universality for a crime to be condemned under law. The best example of this principle is apartheid. It was not universally condemned; South Africa had it as a matter of policy, even though it was condemned by all others. Compromise language on this point was adopted that, again, no one liked, but it wasn't too bad.

The rule group agreed a short definition of victim that could be interpreted expansively, so we were happy with that. The prep-com also decided not to tamper with a previously agreed set of rules regarding consent in cases of sexual violence. We did not get everything we wanted but we were happy with it. Among other things, it says that where a situation is inherently coercive, consent is not an issue - there can be no valid consent.

After promising to hold firm and not give the US anything, several key countries gave in "in order to keep the US engaged and to prevent them from walking out and destroying the process." The adoption of the rule was accompanied by high drama on the last two days. A transparently undemocratic process was followed on the second to last day. Even more than the rule itself, the process issues angered NGOs.

The US got its rule and immediately started pushing for the agreement they want, from the next prep-com meeting in November - December, this year. One head of delegation warned me, several times, that we should be vigilant and not allow the agreement that the US wants and feels it needs.

Some background and what we need to do:

A far better permanent ICC was adopted in Rome that any of us dared dream.

At the end of the Rome conference, consensus failed and the US forced a vote. The result was 120 for the statute creating the court and 7 against. Among the dissenters were the US, Iraq, China (I believe) and others. The entire EU, most of Africa, Central and South America, Canada, Australia, NZ and much of Asia voted with the overwhelming majority. Spontaneous applause erupted among the delegates. The US left mad, vowing to distort the court.

The court needs 60 ratifications to come into being. There are now 13, including Italy, France and Belgium in the EU. Germany is well advanced in the process, as is Canada. Many others are moving along with their ratification procedures. The UK promises us legislation "early in the summer," but no parliamentary time has been scheduled. The coalition predicts that the court will come into being in two years time.

Those of us living in countries that have not yet ratified need to press our governments to ratify.

All of us need to lobby strongly to prevent the US from getting the rule it wants. Jesse Helms, head of the US Senate foreign relations committee that approves treaties before sending them to the Senate floor, has said that the ICC is "dead on arrival" if the president submits it for ratification.

US people need to promote awareness of the ICC and work on changing US policy regarding the court.

Women's International League for Peace and Freedom, International Secretariat.

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