Negotiating the International Criminal Court : New York to Rome, 1994-1998 [1 ed.] 9789004260603, 9789004209299

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Negotiating the International Criminal Court

Negotiating the International Criminal Court New York to Rome, 1994–1998

By

Fanny Benedetti Karine Bonneau John L. Washburn

LEIDEN • BOSTON 2014

Library of Congress Cataloging-in-Publication Data Benedetti, Fanny, author. Negotiating the international criminal court : New York to Rome, 1994-1998 / by Fanny Benedetti, Karine Bonneau, John L. Washburn. pages cm Includes bibliographical references and index. ISBN 978-90-04-20929-9 (hardback : alk. paper) -- ISBN 978-90-04-26060-3 (e-book) 1. International Criminal Court--History. 2. International criminal courts--History--20th century. 3. Rome Statute of the International Criminal Court (1998 July 17) 4. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998 : Rome, Italy) I. Bonneau, Karine, author. II. Washburn, John L., author. III. Title. KZ7312.B464 2014 345’.00269--dc23 2013033230

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISBN 978-90-04-20929-9 (hardback) ISBN 978-90-04-26060-3 (e-book) Copyright 2014 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

This book is dedicated to our children and grandchildren: Avril, Jonathan, Luke, Maia, Mathurin, Nico, and Susannah. May the promise of the Court be realized in their lifetimes.

CONTENTS Preface�������������������������������������������������������������������������������������������������������������������������xi Acknowledgements����������������������������������������������������������������������������������������������� xiii List of Abbreviations�����������������������������������������������������������������������������������������������xv List of Interviewees���������������������������������������������������������������������������������������������� xvii Introduction����������������������������������������������������������������������������������������������������������������1 I. The Story������������������������������������������������������������������������������������������������������1 II. Period Covered�������������������������������������������������������������������������������������������2 III. Methods, Processes, and Techniques of the Negotiations�������������4 1. Why a Court, and How���������������������������������������������������������������������������������������7 I. The Internal Politics of the ICC Negotiations��������������������������������� 10 II. The Place of Victims and Gender in the Negotiations����������������� 11       1. Victims’ Rights����������������������������������������������������������������������������������� 11       2. Gender-Related Crimes������������������������������������������������������������������� 12 2. Negotiating the International Criminal Court������������������������������������������ 15 I. Historic Background����������������������������������������������������������������������������� 15 II. The Influence of the United Nations������������������������������������������������ 16 III. Negotiating Styles and Strategies������������������������������������������������������� 18 IV. The Meeting Halls���������������������������������������������������������������������������������� 20 V. The Ad Hoc Committee (1995)���������������������������������������������������������� 22     1. First AHC Session (3–13 April 1995)������������������������������������������ 24     2. Trends in Government Positions at the First AHC Session��� 29     3. Second AHC Session (14–25 April 1995)���������������������������������� 31 VI. The Sixth Committee���������������������������������������������������������������������������� 34 VII. The Preparatory Committee (1996–1998)������������������������������������� 39 1. First Session (25 March–12 April 1996)������������������������������������ 39 2. Second Session (12–30 August 1996)����������������������������������������� 41 3. Third and Fourth Sessions (11–21 February, 4–15 August 1997)��������������������������������������������������������������������������� 43 4. Fifth Session (1–12 December 1997)������������������������������������������ 45 5. Sixth Session (16 March–3 April 1998)�������������������������������������� 47 VIII. The Draft Text for Rome���������������������������������������������������������������������� 49

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3. The Main Actors of the Negotiations���������������������������������������������������������� 57   I. The United Nations Secretariat���������������������������������������������������������� 57 1. Key Actors in the UN Secretariat�������������������������������������������������� 59 2. Kofi Annan������������������������������������������������������������������������������������������ 63 II. Governments and their Delegations������������������������������������������������� 64 III. Civil Society���������������������������������������������������������������������������������������������� 68 1. Key NGO Actors of the Negotiations������������������������������������������� 68 2. The Ottawa Process�������������������������������������������������������������������������� 74 IV. The Growth of the CICC����������������������������������������������������������������������� 75 1. William R. Pace���������������������������������������������������������������������������������� 76 V. The Like-Minded Group’s Partnership with NGOs����������������������� 79 1. Intersessional Regional Meetings������������������������������������������������� 82 2. Like-Minded Group Leadership��������������������������������������������������� 83 3. Common Ground������������������������������������������������������������������������������ 84 4. The Rome Diplomatic Conference�������������������������������������������������������������� 87 I. The Final Preparations�������������������������������������������������������������������������� 87 1. The FAO Building����������������������������������������������������������������������������� 88 II. A New Chairman at Rome�������������������������������������������������������������������� 90 III. Conference Procedures������������������������������������������������������������������������� 91 IV. Opening Statements������������������������������������������������������������������������������ 94 V. The Committee of the Whole: ‘The Substantive Work’���������������� 96 1. Outstanding Issues in the Draft Statute�������������������������������������� 97 2. Working Groups�������������������������������������������������������������������������������� 98 VI. The Drafting Committee��������������������������������������������������������������������100 1. Cherif Bassiouni������������������������������������������������������������������������������101 VII. The First Stages of Negotiations�������������������������������������������������������103 VIII. David Scheffer and the Position of the United States�����������������106 IX. The French Delegation������������������������������������������������������������������������109 X. The Canadian Delegation and Conference Leadership�������������112 XI. NGOs��������������������������������������������������������������������������������������������������������114 XII. The UN Secretariat and Support Staff���������������������������������������������116 5. The Drama of the Final Days�����������������������������������������������������������������������119 I. Final Breakthrough�������������������������������������������������������������������������������121 1. The First Set of Questions�������������������������������������������������������������126 2. The Second Set of Questions�������������������������������������������������������128 II. The Final Vote����������������������������������������������������������������������������������������136 1. The Complex Implications of the U.S. Defeat�������������������������140

contents  ix 6. Major Results of the Negotiations and the Evolution of International Criminal Law�������������������������������������������������145 I. Definitions of Crimes�����������������������������������������������������������������������������145 1. Genocide and Crimes against Humanity������������������������������������145 2. War Crimes������������������������������������������������������������������������������������������148 II. Crimes of Sexual Violence and Gender Balance�����������������������������148 1. Crimes of Sexual Violence���������������������������������������������������������������148 2. Gender Balance and Expertise in the Court�������������������������������151 III. Victims’ Rights������������������������������������������������������������������������������������������152 1. The Right to Participation���������������������������������������������������������������152 2. The Right to Reparation�������������������������������������������������������������������154 IV. The Debate on Penalties and the Death Penalty����������������������������160 V. ICC Jurisdiction���������������������������������������������������������������������������������������162 1. States’ Consent and Trigger Mechanisms�����������������������������������162 2. An Independent Prosecutor�����������������������������������������������������������164 3. The Role of the Security Council���������������������������������������������������165 VI. The Key Role of States����������������������������������������������������������������������������167 Afterword����������������������������������������������������������������������������������������������������������������169 I. The Rapid Entry into Force of the Statute����������������������������������������169 II. The Work of the Preparatory Commission��������������������������������������170 III. The CICC Evolution��������������������������������������������������������������������������������171 IV. The United States: From Aggressive Opposition Toward Cooperation������������������������������������������������������������������������������172 V. As of Today������������������������������������������������������������������������������������������������173 Concluding Remarks: Toward a New Multilateral Diplomacy����������������177 A Note on Sources and Research Methods����������������������������������������������������179 Appendix A Tables����������������������������������������������������������������������������������������������191  I. Drafting the International Criminal Court Treaty��������������������������191  II. UN Authorizations and Resolutions���������������������������������������������������195  III. Last Two Weeks of the Rome Diplomatic Conference������������������������������������������������������������������������������������������������198 Appendix B SADC Principles���������������������������������������������������������������������������203 Appendix C Dakar Declaration�����������������������������������������������������������������������205 Appendix D NGO Basic Principles�����������������������������������������������������������������207

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Bibliography�����������������������������������������������������������������������������������������������������������211  I. Books and Nonperiodic Materials�������������������������������������������������������211  II. Articles and Periodical Materials��������������������������������������������������������218  III. Other Sources��������������������������������������������������������������������������������������������240 Index������������������������������������������������������������������������������������������������������������������������241

PREFACE This is the story of the unforeseen and astonishing success of negotiations by many states to create a permanent international court, which would try gross and especially horrible crimes. In 1998, 120 countries astounded observers worldwide and themselves by adopting the Rome Statute of the International Criminal Court. From this event began important and unprecedented changes in international relations and law. The road was clogged with threats and challenges. There were unforeseen breakdowns in the negotiations, deliberate ambiguities in the final Statute, and stubborn disagreements that could not be resolved. In certain instances governments, groups, and individuals expressed bitter disappointment at omissions of issues they held dear. Despite this, the completeness and caliber of the Statute, the speed of the negotiations, the sudden breakthrough in a fundamental political impasse at the very end of the last session, the compelling power of emotions and values shared by the majority of participants, the fortunate presence and leadership of skilled and charismatic personalities, and the commitment and expertise of those behind the scenes were only some of the reasons for the surprise and success surrounding the development of the International Criminal Court. This book is for those who want to know and understand the reasons and the story behind these historic negotiations as well as for those who may wonder how apparently conventional United Nations negotiations became so unusual and successful. It is for those seeking detailed legislative history, scholars and practitioners in international law and relations, and for those simply curious about how the Court came about. We three authors attended the negotiations as nongovernmental organization officials and representatives. We are all lawyers. Two of us are French, and the third is a citizen of the United States. Two of us have been United Nations officials in very different positions, and before that, one of us was a career diplomat for twenty years. All three of us have worked in countries that have suffered the kind of atrocities the Court is trying, and two of us have served victims of such crimes directly. Our differences in nationality, generation, experience, and perspec­ tive have come together in a unified understanding of the totality of the

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preface

negotiations for the Court that might well have eluded a single author. We have not tried for uniformity of expression or style; we are, nonetheless, as one regarding the content. There are three pens here, but only one story. Fanny Benedetti Karine Bonneau John L. Washburn

ACKNOWLEDGEMENTS At completion of this book, we think of Rhonda Copelon and Christopher Keith Hall, who passed away during its making. She was a distinguished and influential activist and a professor of public international law with special mastery and power in its use to fight crimes of gender-based violence. He was the ultimate authority among nongovernmental organization legal experts for his skilled knowledge, and his undefeatable commitment to justice for victims of crimes under international law. Generous and humble, they were decisive in the negotiations of the Statute and inspiring for us. We have been proud to be among their friends and colleagues. We want to thank Martinus Nijhoff Publishers and, in particular, Lindy Melman and Bea Timmer for their invaluable support and confidence. We are thankful to Donald and Benjamin Ferencz and the Planethood Foundation. Their support has been crucial for the writing and editing process of this book. Professor Leila Sadat encouraged us to develop the concept of the book. Her help with publishers and reassurance in moments of doubt were kind and indispensable. We are very grateful to her for support, which was at once sympathetic and practical. The work of many minds and skills has made this book possible. The thoughts, knowledge, and experiences of our interviewees, listed separately, have been indispensable. We thank them warmly for their time, their patience, the collection of their memories, thoughtful reflection, and commitment to our project. The quality of this book owes much to our volunteer and professional editors Kate White, Karen Fein, and Deborah Washburn. We are centrally indebted to Kate for her patience, hard and meticulous work, good taste and judgment, and her remarkable technical skills in bringing together many pieces of text arriving in varying forms at different times. Our readers were Gilbert Bitti, Roy Lee, Bill Pace, and Darryl Robinson. They gave us invaluable advice and accuracy in the midst of busy professional lives. Their contributions provided much to think about and reconsider. Researchers contributed essential information, important insights, a badly needed wider reach over materials, surprising facts, and a valuable variety of gender, generational, and cultural perspectives. They were

xiv

 acknowledgements

Kwame Dougan, Thordis Ingadóttir, Eun Lee, Diana Marter, Soraya Mehdaoui, Cecilia Nilsson-Kleffner, Daisy Schmitt, Kevin Garret, and the CICC and WFM secretariats, in particular Bill Pace and Katrina Dorn. Deborah and Julien, sharers of lives, have given their love, patience, encouragement in times of doubt, and their time to ours. We are full of gratitude for the love and support of our families and friends, who have sustained us with affection, understanding, and listening. As we wrote, there were in the mind’s eye the faces and the experiences of many colleagues, who traveled with us on the journey to the Rome Statute. The continued presence of many and sharp memories of others have been an important part of the core of this book.

LIST OF ABBREVIATIONS AHC ASPA CICC ECOWAS ELSA EU FAO FIDH G-77 HRW ICC ICJ ICTR ICTY ILC IMT IMTFE LCHR LMG NAM NATO NGO NPWJ P5 PrepCom SADC UNGA/GA VRWG WFM

Ad Hoc Committee American Service-Members’ Protection Act Coalition for the International Criminal Court Economic Community of West African States European Law Students’ Association European Union Food and Agriculture Organization International Federation for Human Rights Group of 77 Human Rights Watch International Criminal Court International Court of Justice (World Court) International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Law Commission International Military Tribunal International Military Tribunal for the Far East Lawyers Committee for Human Rights Like-Minded Group Non-Aligned Movement North Atlantic Treaty Organization nongovernmental organization No Peace Without Justice Permanent Five members of the UN Security Council Preparatory Committee South African Development Community United Nations General Assembly Victims’ Rights Working Group World Federalist Movement

LIST OF INTERVIEWEES Note: The interviews conducted by the authors and referenced in this book took place between 1997 and 2010 in a variety of locations. The city of each interview is provided at the end of each entry in parentheses. Identifications given are as of the Rome Diplomatic Conference. The designations and wording of government representatives are written as they appear in the official list of delegations. Anonymous United Nations official close to the negotiations (New York) Cherif Bassiouni Chairman, Drafting Committee in Rome; President, International Association of Penal Law, France; President, International Human Rights Institute, DePaul University, Chicago (Chicago) Barbara Bedont NGO representative, Canadian Center for International Human Rights and Democratic Development (Quebec) Gilbert Bitti Delegation of France, Human Rights Office, European and International Affairs Service, Ministry of Justice (The Hague) Helen Brady Delegation of Australia, New South Wales State Representative (The Hague) Bruce Broomhall NGO representative, University of British Columbia; International Association of Penal Law (Quebec)

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list of interviewees 

Bartram S. Brown Delegation of Trinidad and Tobago, Representative; Associate Professor of Law, Chicago-Kent College of Law (Chicago) Charles Brown Delegation of the United States, Spokesman; Public Affairs Officer, Bureau of Democracy, Human Rights and Labor, Department of State (Washington, DC) Roger S. Clark Delegation of Samoa, Adviser; Professor of Law, Rutgers University (USA) (New Brunswick, NJ) Rhonda Copelon NGO representative; Founder and Legal Adviser, Women’s Caucus for Gender Justice in the International Criminal Court; Professor of International Law, School of Law at Queens College, City University of New York (New York) Richard Dicker NGO representative; Director of justice programs, Human Rights Watch (New York) David Donat-Cattin NGO representative; Head of the delegation of the European Law Students’ Association (The Hague) Silvia Alejandra Fernández de Gurmendi Delegation of Argentina, Embassy Counselor; Permanent Mission, New York (Buenos Aires) Rolf Einar Fife Delegation of Norway, Head; Deputy Director-General, Ministry of Foreign Affairs (Oslo) Niccolò Figà-Talamanca Delegation of Bosnia-Herzegovina, Legal Adviser; NGO representative, No Peace without Justice (New York)



list of interviewees xix

María del Socorro Flores Liera Delegation of Mexico, Third Secretary; Permanent Mission of Mexico, New York (New York) Béatrice Le Fraper du Hellen Delegation of France, Special Adviser to the Director of United Nations Affairs, Ministry of Foreign Affairs (The Hague) Fabricio Guariglia Delegation of Argentina, Head, Department of Policy Planning, Department of Criminal Policy, Ministry of Justice (The Hague) Chistopher Keith Hall NGO representative; Legal Adviser, International Justice Project, Amnesty International (London) Philippe Kirsch Chairman, Committee of the Whole; earlier, delegation of Canada, Legal Adviser Department of Foreign Affairs and International Trade (Deputy Head of Delegation) (The Hague) Erkki Kourula Delegation of Finland; Ambassador, Ministry of Foreign Affairs, Head of Delegation (The Hague) Roy S. Lee Executive Secretary of the Conference; Director of the Codification Division, Office of Legal Affairs, United Nations (New York) William K. Lietzau Delegation of the United States, Military Adviser; Deputy Legal Counsel, Office of the Chairman, Joint Chiefs of Staff, Department of Defense (Washington, DC)

xx

list of interviewees 

Fiona McKay NGO representative, REDRESS (UK) (The Hague) Daniel Nsereko Academic representative; Professor of Law, University of Botswana (New York) Valerie Oosterveld Delegation of Canada, Adviser; Women’s Caucus for Gender Justice in the International Criminal Court (Ottawa) Sabelo Sivuyile Maqungo Delegation of South Africa, Adviser; Assistant Legal Adviser, Ministry of Foreign Affairs (New York) Thomas Pickering Undersecretary of State for Political Affairs, United States Department of State (not in Rome) (Washington, DC) Mauro Politi Delegation of Italy, Legal Expert; Permanent Mission, New York (New York) Darryl Robinson Delegation of Canada, Representative; Legal Officer, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade (Montreal) Eric Schwartz Delegation of the United States, Adviser; Senior Director, Democracy, Human Rights and Humanitarian Affairs, National Security Council, Executive Office of the President (Washington, DC)



list of interviewees xxi

Francisco Soberón NGO representative; Director, APRODEH (Peru); Vice President, International Federation for Human Rights (FIDH); Member, Steering Committee, NGO Coalition for the International Criminal Court (Paris) Elizabeth Wilmshurst Delegation of the United Kingdom of Great Britain and Northern Ireland, Representative; Deputy Legal Adviser, Foreign and Commonwealth Office (London) Molly Williamson Deputy Assistant Secretary of State for International Organization Affairs, United States Department of State (not in Rome) (Washington, DC) Javad Zarif Delegation of Iran, Head of Delegation; Deputy Foreign Minister for Legal and International Affairs (New York) Zeid Ra’ad Zeid Al-Hussein Delegation of Jordan, Ambassador; Deputy Permanent Representative to the United Nations; Deputy Head of Delegation (New York) Valentin Zellweger Delegation of Switzerland, Diplomatic Adviser; Federal Department of Foreign Affairs, Public International Law Division. (The Hague)

INTRODUCTION I. The Story There is an enormous and still rapidly growing literature on the specific issues of jurisprudence, jurisdiction, and organization that the Preparatory Committee and the United Nations Diplomatic Conference of Plenipo­ tentiaries on the Establishment of an International Criminal Court had to resolve in order to create the Rome Statute of the International Criminal Court.1 Although a good deal of this literature tries to explain these issues and the workings of the negotiators, there is, as we write, neither a coher­ ent context nor a complete story in which to place and understand these issues and their resolution. Our first priority, therefore, is to describe what happened by illustrating the key players and the consequences of leader­ ship judgments, psychology, and fate in all the meetings, exchanges, debates, and relations among those involved in the negotiations. To do this fully, it is essential that we attempt to convey the uniqueness and sig­ nificance of the story itself. This was an extraordinary human adventure in collective creation. It has been called a constitutional moment, a rare time when men and women, working together as politicians, diplomats, and experts, succeed in creating a new institution.2 This characterization of the negotiations for the International Criminal Court (ICC) is apt because the success, as in other constitutional moments, was made possible by a unique period in time and driven by dramatic, compelling, and specific current events, which in turn aroused unique influences for those directly involved. An understanding of the wider context and global circumstances surround­ ing the event, then, becomes crucial to realizing its full impact and com­ plexity. What might have outwardly seemed to be sober and technical debates and compromises were colored by the underlying and direct 1 The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and the Rome Statute of International Criminal Court are hereinafter referred to as the Rome Diplomatic Conference and the Rome Statute or ICC Statute, respectively. Full text of the Rome Statute: A/CONF.183/9* of 17 July 1998. Online: http://untreaty.un.org/cod/icc/statute/romefra.htm. 2 Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (Ardsley, NY: Transnational Publishers, 2002), 13 n. 37.

2

introduction

motives, experiences, and passions of the negotiators themselves. Almost imperceptibly reflected in the Rome Statute, these individual and per­ sonal infusions have become part of the greater culture and expectations both within and outside the now fully established International Criminal Court. We explain the substance of the Rome Statute only enough to support the story’s narrative of the nature, personalities, and evolution of the negotiations. However, for the interested reader we describe at the end of the book some of the key legal and operational issues. II. Period Covered The significance and extraordinary nature of the ICC negotiations raise the question of whether the Rome Statute could have come about at any other time. The complete period in which the Statute was produced falls distinctly between the end of the Cold War and the beginning of the War on Terror. The Ad Hoc Committee of the United Nations General Assembly began negotiations five years and twenty-eight days after the fall of the Berlin Wall on 9 November 1989. The Rome Diplomatic Conference ended three years and fifty-five days before the attack on the World Trade Center towers on 11 September 2001. We have made efforts to present the full global context, highlighting the direct and indirect influences surrounding the negotiations and development of the International Criminal Court. The negotiations themselves began with the United Nations General Assembly (UNGA) session in 1994. The negotiations continued through the Ad Hoc Committee (AHC) meetings of 1995 and the sessions of the Preparatory Committee (PrepCom) in 1996, 1997, and 1998. Negotiations ended with the Rome Diplomatic Conference in June and July 1998. Several events before 1994 had a particularly significant impact on the nature and focus of the ICC negotiations. These are, but are not limited to, the work of the International Law Commission (ILC) to produce the Draft Statute for an International Criminal Court; the negotiations to create the Mine Ban Treaty and the Law of the Sea;3 the conferences on women’s rights in Cairo, Stockholm, and Beijing;4 and the establishment of the 3 The Mine Ban Treaty is known formally as the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction. The treaty was adopted on 18 September 1997, and it entered into force on 1 March 1999. Online: www.un.org/Depts/mine/UNDocs/ban_trty.htm. 4 United Nations International Conference on Population and Development (ICPD) took place in Cairo, 5–13 September 1994. Report of the ICPD (online): www.un.org/popin/

introduction3 International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR). The negotiations in the Preparatory Committee sessions and particularly those at the Rome Diplomatic Conference clearly reflect these influences; furthermore, insights may also be gleaned from events and negotiations following the Rome Diplomatic Conference, including the early years of the establishment and full functioning of the ICC. The ad hoc tribunals for former Yugoslavia and Rwanda began in 1993 and 1994, respectively, just before the ICC negotiations started, and con­ tinued both during and after those negotiations. An agreement between the United Nations and the government of Sierra Leone created the Special Court for Sierra Leone in 2002.5 The UN signed another such agreement with the government of Cambodia in 2003 in order to create another hybrid court, the Extraordinary Chambers in the Courts of Cambodia.6 In Latin America, military dictatorships gave way and began to transition toward establishing democracy. Countries from Argentina to South Africa struggled to deal with the aftermath of massive human rights violations; the direct effects of atrocious crimes within the period had produced within those states years of extensive experimentation and experience in dealing with transitional justice and methods for ending impunity. As a result, many representatives from these regions had particular expertise on these issues which informed and strengthened ICC negotiations. Several national and international events directly affected the attitudes of delegations and their governments, and in some cases changed the instructions of representatives as their governments shifted. Left-wing and democratic governments came to power or were sustained in Canada and Europe, as well as in parts of the developing world. With the space to demonstrate lessons learned from historical experience, these govern­ ments exhibited an open determination to no longer allow tyrants and dictators to get away with atrocity crimes. The European Union, for icpd/conference/offeng/poa.html. The World Summit for Social Development took place in Copenhagen, 6–12 March 1995. Report of the Summit (online): www.un.org/documents/ ga/conf166/aconf166-9.htm. The Fourth World Conference on Women: Action, Equality, Development, and Peace took place in Beijing, 4–15 September 1995. The Declaration of the Conference (online): www.un.org/womenwatch/daw/beijing/platform/declar.htm. 5 The Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone. See the website of the Special Court: www.sc-sl.org/. 6 The Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea. See the website of the Extraordinary Chambers: www .eccc.gov.kh/en/documents/legal/agreement-between-united-nations-and-royal -government-cambodia-concerning-prosecutio.

4

introduction

example, increasingly felt this way and thus exerted its influence in inter­ national relations, especially in the creation of international law. In many negotiations loose interest groups were seen to evolve into integrated and coordinated caucuses. An international campaign against impunity grew and was strengthened further by the successful creation of the ICTY and ICTR; it was inflamed by the atrocities that continued in places ranging from Burma to the Democratic Republic of the Congo. With this new growth and momentum, confrontation with sets of long–standing and unresolved international tensions was unavoidable and continued to affect all aspects of international life, including treaty negotiations. The perennial struggle about the status of the Palestinian territories, for exam­ ple, repeatedly intruded upon all multilateral negotiations between 1994 and 1998. Together with these events and changes, the United States was deeply affected by both internal and external pressures. Initially, the U.S. admin­ istration strongly endorsed the concept of an international criminal court, but by the time of the Rome Diplomatic Conference was coping with the distraction of the Monica Lewinsky scandal and the attempts to impeach President Clinton. Nonetheless, the U.S. military’s experiences in Somalia and the former Yugoslavia amplified the belief of the United States mili­ tary that it had a special role and responsibility to both repress violent conflicts and support American world leadership. With this came an even stronger sense of vulnerability and also of entitlement for special treat­ ment in international institutions and meetings. III. Methods, Processes, and Techniques of the Negotiations In addition to the external influences surrounding the negotiations, the internal pressures and interactions were equally important, and the unprecedented nature of the ICC and its development was often reflected in the very procedures that gave birth to it. In the early stages of the nego­ tiations, the UN General Assembly applied its long-established protocols, rules, and methods for treaty negotiations as the standard for the ICC negotiations. To a casual observer, it might well seem that these methods continued largely unchanged throughout the length of the ICC negotia­ tions; however, despite appearances and in response to the emerging needs of the negotiators, the strategies of the leaders of the negotiating bodies, the universal practice of multilateral diplomacy, and the pressures of time and circumstance, most of the these original methods in content

introduction5 and execution were changed. We describe chronologically and in detail what these changes were and how they emerged. We show how certain General Assembly negotiating techniques, procedures, and organizational structures were adapted during the Rome Statute negotiations into new, unique forms, while other, more conventional ones remained unchanged. This evolution produced a distinctive influence on seasoned negotiators in their evaluation of prior negotiating experiences, especially in connec­ tion with the General Assembly, and in their assessment and understand­ ing of the need for future procedural modifications in treaty making. Our description of the ICC negotiations also presents the compromises and changes in attitudes that expanded the rolling draft from and beyond the original text produced by the International Law Commission in 1994 and evolved the existing General Assembly procedures and processes from one session to the next. An important, constantly progressing rela­ tionship among participants in the negotiations, including the principal actors—UN staff; the ‘Bureau’ (the elected officials leading the bodies negotiating the Rome Statute); government delegations; and civil society and nongovernmental organizations (NGOs)—expanded and intensified throughout the sessions and, for many, created strong bonds and trust among participants.7 These factors answer many questions about the speed and progress of the negotiations both before and in Rome. However, the question of time allocated to the development of some­ thing as exceptional as a treaty establishing an international criminal court remains controversial. Some argue that the lengths of the various PrepCom sessions during their three years, as well as the five weeks allot­ ted in Rome, were not sufficient for the task of creating the Rome Statute. This argument has a critical bearing on the wider applicability of prece­ dents from the Rome Statute negotiations for creating future treaties. We have aimed to provide information and analyses that illuminate both sides of this debate as well as describe the variable elements of psychology, political environment, continuity of persons, and general momentum at various stages of the ICC negotiation process. The Rome Statute created a very specific institution at a very particular time for special purposes. Can an international criminal court serve as a model for other kinds of international institutions? Among the Rome Statute’s many characteristics, should it also be considered as a type of 7 Civil society should be understood to include nongovernmental actors in general, individual and organized groups of NGOs in particular, and academic persons and institutions.

6

introduction

constitution, and if so, what are the implications of this for negotiations on other types of treaties? Was the window of time in which the Statute was created significant in a way that would not be true for other negotiations? It remains certain that both the negotiations themselves and the Court that developed from them hold a special meaning and nature because they involve actions of individual human beings at a time when most international law focused on nations and legal persons. This crucial shift is particularly evidenced at the end of our account; the detailed results we provide of the negotiations—both from a legislative and personal per­ spective—aid us to more accurately determine and assess the lasting effects and potential applicability of the workings of the ICC negotiations in future negotiation.

CHAPTER ONE

WHY A COURT, AND HOW From extensive research and direct conversations with many of the main players in the ICC negotiation process, a story emerged with recurring themes. These posed several questions about the nature of the proposed Court. What kind of crimes should be before the Court? How can governments, groups, and individuals from different cultures and histories agree on the crimes the Court should try? What kinds of techniques, negotiations, and procedures should nations use to best achieve mutually agreed goals? How will the Court respond to the types of massive crimes revealed in recent conflicts, particularly those against women and children? How can the Court best serve victims and survivors? What kinds of justice will the Court do? Those directly involved in the negotiations—governments, nongovernmental organizations, and UN officials and their supporters—lived with the reality of these questions constantly. Some, such as the nature of the crimes to be covered by the Court, were the subjects of the negotiations. Processes, procedures, and techniques, on the other hand, were often worked out as much in prior planning as in practice and were modified by experience. As we shall see, the subjects and the process of negotiation itself greatly influenced each other. This mutual influence was also shaped by the personal and institutional experiences of participants in the past and by the culture and values of both the UN and the nations and organizations represented by the participants. The story of the negotiations traces how at different times various participants were more or less aware of their agreements and disagreements, their differences and their commonalities, and the inherited techniques and methods that they were evolving. It especially gives particular attention to the roles of the Bureau and the UN Secretariat in planning the course of the negotiations and adapting those plans to developments. Interacting with these factors, there were recurring emotional and psychological themes at play. These were individually identifiable and, at the same time, inseparable from the totality of the negotiations. The most important of these were the determination to achieve a true criminal court, concepts of justice, dedication to the redress of victims, intense

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commitment to advances in the trial and definition of the gravest forms of sexual and gender-related crimes, the effect of several different kinds of political influences, and the development of a distinct culture and psychology within the inner world of the negotiations. Criminal courts are familiar. Every country has them. This familiarity was centrally important to getting the negotiations designed and started, and to their success. In other international negotiations to create a treaty, defining the procedures and institutions the treaty would create took a long time. International institutions to protect intellectual property and to regulate the use of the ocean floor under international seas were new kinds of organizations with no close domestic counterparts. In the Rome Statute negotiations, little time had to be spent on deciding about and describing the nature of the International Criminal Court. In fact, a fairly detailed vision quite closely corresponding to the main and most important elements of the eventual Court developed early in the negotiations. This vision included the virtues of legitimacy and permanence, and the strong determination to eliminate impunity for the most serious international atrocity crimes. This latter component was shaped by the limitations and achievements seen in local and international experiences, especially in the examples of the tribunals established by the Security Council for the former Yugoslavia and Rwanda in 1993 and 1994. Ultimately, it was this vision that forwarded the momentum and inspired the dogged determination that characterized the negotiations. With the basic features, structure, purposes, and procedures of the institution clearly in mind, the participants in the negotiations could turn their attention to working out the Court’s jurisprudence, jurisdiction, and operations, which in themselves presented very difficult technical, conceptual, and political problems. The concentration on a court was of course important in the early history of the interest of the UN General Assembly in bringing international criminal law to bear on individuals. The Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly on 9 December 1948, was the first binding multilateral treaty to implement the standards for human rights.1 The traumatic impact of the Holocaust gave to genocide a special status among atrocity crimes and grave human rights violations. The Convention on Genocide provided for 1 Hereinafter referred to as the Convention on Genocide; UN General Assembly, Resolution 260 (A), 3rd Session, Official Records, UN Doc. A/RES/260(III) (9 December 1948). Online: www.un.org/ga/search/view_doc.asp?symbol=a/res/260%28III%29.



why a court, and how9

an international court to try individuals for crimes of genocide. Despite recognizing the impossibility of achieving an international criminal court in the midst of the weighty pressure of the Cold War, individuals and international human rights organizations still continued to discuss and refine the concept of such a court, and these discussions would contribute significantly to the ICC negotiations. After the Cold War, momentum returned to the discussion, and the immediate run-up to the negotiations began in 1990 when the General Assembly turned to its International Law Commission to revive consideration of a court. By this time the global interest in an international judicial institution extended well beyond the work of both the International Law Commission and the diplomats, officials, and international law experts and academics from whom the ILC drew and which it influenced. The familiar image of a court was at the center of the narrow but firm common ground among the participating states, which made the negotiations possible and durable. All concerned in the negotiations understood what the core values required to make a criminal court were, as perhaps best stated in what became a mantra among court supporters: ‘fair, effective, and independent.’ This understanding transcended all differences in national attitudes and legal systems. In addition to this, the fundamental characteristics and requirements of such a court were also clear. There needed to be expert, impartial, and independent judges; freedom from political pressures, especially in individual cases; and complete and detailed rules, procedures, and rights for all parties. The question then became how best to give an international criminal court such characteristics. The General Assembly had already agreed on the need for such a court if it could be created. Nonetheless, a good many states had difficulty reconciling the vision of a criminal court with the conventional concept of an international, multilateral institution. Judicial and prosecutorial independence meant that states parties to the Court could not have the degree of control over it that they were used to in organizations like the United Nations and its specialized agencies. Moreover, it was hard for some governments to accept the idea that the Court’s jurisdiction over individuals was not the same thing as jurisdiction over states. International law had almost always been about requirements for state behavior, and for some, a leader embodied the state. Striking an adequate balance between peace and justice was a significant factor in the shaping of the negotiations. Conflicts such as the one unfolding in the former Yugoslavia concomitant to the launch of the ICC

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negotiations had demonstrated the necessity to reconcile peacemaking with accountability for the most egregious crimes. Achieving peace requires sitting mediators and world leaders at a table with other parties to a conflict, often including the individuals responsible for ordering and abetting mass crimes. This creates inherent tension underscored by the necessity for justice to be done for these crimes. Through the adoption of the Rome Statute and creation of the ICC, the belief that justice for the gravest international crimes should not simply be traded off in the course of achieving a peace settlement was a core value shared by proponents of a strong and independent International Criminal Court. I. The Internal Politics of the ICC Negotiations The negotiations to create the International Criminal Court were not separate from the United Nations or the world, and the internal politics of the negotiations often reflected external political influences. Such influences affecting the creation of the Rome Statute ranged from continuing atrocities on several continents including those in Kosovo, Africa and beyond, to the Lewinsky scandal in Washington that distracted the Clinton administration. At times, these events seemed to obscure the uniqueness of the ICC negotiation’s internal politics, which was often difficult to see from outside the negotiations themselves. All of the participants lived and worked within the intensely political  environment of the United Nations. This setting brought a longestablished interaction there between groups and events, as well as personalities into the negotiations as a continuing influence. In the case of the negotiations during the Preparatory Committee sessions, it often appeared, especially at first, that the environment was simply a reflection of the greater political environment of the United Nations. However, as in any successful legislative process, it was necessary for the ICC negotiations to develop a politics of their own to facilitate debate and mediate compromise. The internal politics were the continuous but ever-changing flows of power and influence not only among governmental delegations, which often responded to the politics and interests of their own countries, but also among these delegations and the other three principal actors: the UN staff, the Bureau, and NGOs. In the case of nongovernmental organizations and government delegations especially, these often brought with them previous political relationships and histories, which then naturally



why a court, and how11

evolved as the negotiations progressed inside the sessions of the Preparatory Committee and the Rome Diplomatic Conference. The politics and processes shaped by the negotiations also expressed the power and purposes of the Bureau and of groups unique to the negotiations, and at their most useful, came to reflect in action and procedures the shared attitudes and understandings that inevitably arise among persons committed to a common enterprise over several years. Some political relationships greatly helped to overcome cultural and national differences among states, especially those from historical experiences with atrocities. In other cases, they sharpened the differences, especially when they were expressed through groups and caucuses that had both formed before the negotiations and would continue after them. The politics of these groups were often driven by agendas other than the creation of the International Criminal Court. These crosscut political pressures exerted significant influence and most clearly emerged during the hard and prolonged search for agreement on the most difficult parts of the Rome Statute: notably, the attempts to make advances in international atrocity law through the Court’s jurisprudence, the details of the Court’s jurisdiction over cases and situations, and the general role of the Security Council in these decisions. At the heart of the negotiating process and especially for its leadership, there was a struggle to manage, agree upon, and conclude the debates and negotiations surrounding these issues. As we shall later see, this difficult effort in fact came to an end only in the final days of the Rome Diplomatic Conference. II. The Place of Victims and Gender in the Negotiations Through the perceived insufficiencies of the international ad hoc tribunals of 1993 and 1994, negotiators were well aware of the importance of giving a role and real place to victims during the negotiations for the International Criminal Court as well as confronting gender issues as yet unaddressed by international law. The sustained efforts of civil society in particular played a major part in drawing attention to these issues throughout the course of the negotiations. 1. Victims’ Rights The ability of international justice to reach out to and concretely consider victims of international crimes has also been the object of intense debate

12

chapter one

and focused research. From the outset there seemed to exist a general expectation from civil society that the International Criminal Court ought to be focused directly on victims themselves in societies affected by conflict. The ICTY and ICTR did not allow victims the right to participate in proceedings; they only had a limited right to ask for some reparation before national tribunals on the basis of a conviction sentence from the ad hoc tribunals. During the course of negotiations, nongovernmental organizations and some diplomats saw providing redress to victims as a major rationale for the creation of the new court. By both affording redress to victims and by prosecuting and trying violators of egregious crimes, NGOs especially felt that an international criminal court would provide relief to victims, their families, and affected social communities and could organically develop newly recognized norms of international law. They expressed the idea that justice is part of any lasting reconstruction and reconciliation process. As we shall see, the Rome Statute was aimed at establishing a unique system in which the elements of retributive and redressive justice would be reconciled. The lengths of repeated discussions in the treaty negotiations on these issues, as well as the innovations in the treaty and ICC practice on this, are proof that the question of victims was central to the negotiations and a unique feature of the ICC itself. 2. Gender-Related Crimes The two ad hoc tribunals had also dealt with the aftermath of a conflict characterized by massive sexual crimes, often used strategically by perpetrators to dehumanize, shame, and annihilate their enemy. The corpus of existing international criminal and humanitarian law, which the ICTY and ICTR Statutes reflected, largely ignored these crimes.2 The ICTY Statute

2 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, between 1 January 1994 and 31 December 1994, UN Security Council, Resolution 955, 49th Session, 3453rd meeting, Official Records, UN Doc. S/RES/955, annex, at 1 (8 November 1994). Online: www.un.org/ga/search/view_doc.asp?symbol=S/RES/955%281994%29; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Security Council, UN Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by the Security Council on 25 May 1993, UN Doc S/RES/827 (25 May 1993). See website of ICTY: www.icty.org/sid/135.



why a court, and how13

only defined the crime of rape among crimes against humanity and war crimes. But, as discussed at the end of this book, the constructive development of the tribunals’ jurisprudence in better defining forms of sexual violence and qualifying them as crimes against humanity, war crimes, and crime of genocide directly influenced the negotiations of the Rome Statute.

CHAPTER TWO

NEGOTIATING THE INTERNATIONAL CRIMINAL COURT The negotiations during and before the development of the Rome Statute had their own history, themes, and structures. A close examination of these patterns helps explain the nature and flow of the ICC negotiations themselves. They were very much influenced by the history of treaties and how they were made from the end of the First World War to the run-up to negotiations just after the Cold War. I. Historic Background After World War I, the Versailles Treaty envisaged the prosecution by the Allies of those accused of having violated the rules and customs of war, and it also provided for the establishment of a special tribunal to judge Kaiser Wilhelm II. The intended tribunal would have been composed of five judges appointed by each one of the five victorious states. The kaiser, however, fled to the Netherlands and was never tried. Following the heinous crimes of World War II, the Allies managed to create the International Military Tribunal (IMT), known as the Nuremberg Tribunal, and the International Military Tribunal for the Far East (IMTFE), informally known as the Tokyo Tribunal.1 These tribunals were effectively set up by the victors against the vanquished, but their emerging principles could be seen to invigorate the entire development of international criminal justice. For the first time, state representatives were prosecuted without the defense of immunity from an official state position. Crimes against peace, war crimes, and crimes against humanity were defined, specified, debated, and judged. Furthermore, the entire world, affected by such criminal acts, would now be able to follow trials and witness the application of justice to atrocities. The UN General Assembly drafting process that followed these events was significant. In 1946, the General Assembly affirmed the principles of 1 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945: www.icrc.org/ihl/INTRO/350?OpenDocument.

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international law recognized by the Charter of the Nuremberg Tribunal as well as the judgment of the tribunal and also codified these as the Nuremburg Principles, which became part of international law.2 In 1947, the General Assembly mandated the International Law Commission to formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and produce a Draft Code of Offences against the Peace and Security of Mankind.3 Lastly, in 1948, the General Assembly recommended that the ILC consider the question of creating an international judicial institution to try persons accused of genocide and other crimes.4 Drafting thenceforth advanced slowly, though in 1950 the General Assembly established a committee in charge of drafting a statute for an international criminal tribunal.5 The Cold War prevented any political action toward a permanent court. Finally, in 1991 the ILC, in response to General Assembly requests, began once again to consider producing a statute for an international criminal tribunal. In 1994 the ILC proposed its final version of a draft statute and recommended that the UN General Assembly convene an international conference for the statute’s adoption.6 II. The Influence of the United Nations The negotiations for the International Criminal Court occurred almost entirely at the United Nations. They would be authorized by the United Nations General Assembly, take place in committees it created and end in a diplomatic conference convened by the UN. The negotiations, furthermore, would be conducted in these committees by and at the United Nations entirely according to the Assembly’s rules, procedures, methods, and traditions as modified by the experience and dynamics of the negotiations themselves. The International Criminal Court negotiations could 2 Affirmation of Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, UN General Assembly, Resolution 95(I), Official Records, UN Doc A/64/Add.1 (1946), 11 December 1946. 3 UN General Assembly, Resolution 177(II), 2nd Session, Official Records, UN Doc. A/519 (1947), 21 November 1947. 4 UN General Assembly, Resolution 260(III) B, Annex, 3rd Session, Official Records, UN Doc A/810 (1948), 9 December 1948. Entry into force on 12 January 1951. 5 UN General Assembly Resolution 489(V), 5th Session, 320th plenary meeting, Official Records, UN Doc. A/RES/489 (V), 12 December 1950. 6 Report of the International Law Commission on the Work of its 46th Session, 2 May– 22 July 1994, UN General Assembly Official Records, 49th Session, Supplement No. 10, A/49/10 (1994).



negotiating the international criminal court17

not have taken place anywhere other than at the United Nations and in its General Assembly. No other venue existed which could have coped with the diplomatic, political, and technical complexity and the length of these negotiations. Since it had been decided that the new Court was to be permanent, the Security Council could not create it. The establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda by the Security Council was only possible because these actions were part of the Council’s responsibility under the United Nations Charter to respond to specific conflict situations threatening international peace and security. Each tribunal had a limited term and its mandate was restricted to a particular geographical area and a single situation. Each had been created only after the crimes it would try had already happened. Almost immediately, it became evident that the Security Council, weary of trying to manage courts without having the necessary structure and resources, would not attempt to take on any more of them; accordingly, the members of the General Assembly believed as early as 1993 that the new permanent International Criminal Court would have to be set up by treaty. Creation of the ICC through amendment of the United Nations Charter was technically possible but was quickly rejected by a large majority in the General Assembly as simply too difficult to achieve. Even if a venue had existed which could have dealt with the negotiations for the Court, it is extremely difficult to imagine that these negotiations could have been taken outside of the United Nations after an impasse there, as the negotiations for the Mine Ban Treaty had been. This Convention established a norm of national behavior, which could persist and slowly grow, even if at the beginning quite a number of states refused to adopt it. However, the International Criminal Court as a truly global institution with a worldwide reach required more immediate support and membership from a good many nations in order to function. Moreover, the General Assembly, its Ad Hoc Committee, and its Preparatory Committee were uniquely suited, first, to express and define the strong desire of much of the international community to improve the general response to atrocity crimes and to end impunity for them. These bodies were also in a position to focus this powerful feeling on the goal of a permanent international criminal court. In the General Assembly sessions and the meetings of the Ad Hoc Committee, nations were more easily able to identify the common ground on which they could build the International Criminal Court and discuss the range of crimes that they believed the Court should try.

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The General Assembly in its annual sessions encouraged the ongoing  negotiations and refreshed the political will to continue them. The procedures of the General Assembly and its resolutions on the ICC negotiations established a rhythm of interaction between the various negotiating bodies and the Assembly itself. Beginning with the Ad Hoc Committee, each session of negotiations reported on its work to the General Assembly through its Sixth Committee. This Committee is responsible for all of the international law issues on the annual agenda of the General Assembly, and the representatives on it are almost entirely legal advisers from government missions to the United Nations. The Sixth Committee debates on these reports provided an opportunity to educate important members and leaders of government delegations at the UN about the nature of the negotiations and their progress. In these debates, states could also refine and explain positions that they had taken in the preceding negotiations and give their views on the direction of the next round of negotiating decisions. Occasionally, states took positions in the Sixth Committee that were inconsistent with those in the negotiations. Although frustrating, these situations gave warning that an apparent agreement might in fact be fragile, or that there should be further work on particular issues. The action of the Sixth Committee was also a central place for the interplay between the broader politics of the General Assembly and the internal politics of the negotiating sessions. Its debates made it easier for the negotiators to identify the specific portions of the emerging text that presented the acute political problems that, in the end, would need to be resolved at the Rome Diplomatic Conference. Overall, the Sixth Committee’s reports and draft resolutions, which the Assembly almost always approved readily, provided the negotiations with continuing support and some authoritative recommendations to the negotiators. III. Negotiating Styles and Strategies In 1994 the General Assembly created the Ad Hoc Committee and selected Adriaan Bos to be its chairman. Bos was well known at the United Nations as a senior Dutch civil servant, a veteran of international conferences, an eminent legal adviser to the government of the Netherlands, and an expert on both public international law in general and international humanitarian law in particular. The Assembly may also have been influenced by the general assumption that the new Court would have its headquarters in



negotiating the international criminal court19

the Netherlands. The choice turned out to be so right that it must be counted as part of the unusually good luck the negotiations enjoyed. Bos, as chairman of the Ad Hoc Committee and later of the Preparatory Committee in 1996, was a creative and adroit parliamentarian, a firm but fair chairman, a skillful conference diplomat, and when needed, a legislative innovator willing to alter procedures and methods in order to accommodate new circumstances. Some observers thought that the value of these abilities was somewhat limited by his perceived tendency to play cards a little too close to his chest; his quiet manner and calm personality made it easy to overlook his determination. The Ad Hoc Committee surprised many of its members and observers by being able to agree, when recommending Bos to the General Assembly, that it authorize negotiations for “a consolidated text of a Convention for an International Criminal Court” to be considered by a “conference of plenipotentiaries.”7 This turned out to be only the first of the many times during the negotiations when participants surprised themselves with unexpected progress. At the beginning of the Ad Hoc Committee meetings, there was excitement among members at this new and unusual venture, but also extreme uncertainty about whether the AHC would be able to reach a significant agreement. There was even more doubt over whether, even if negotiations were authorized, the resulting Statute could produce a viable Court. This, however, was also balanced among many states by a shared determination generated by recent atrocities and also by a sense that the right moment had at last arrived. In addition to this, most members shared a clear, albeit narrow, understanding of the atrocity crimes they wanted the Court to have the authority to try. These were the atrocities already under the jurisdictions of the ICTY and ICTR: war crimes, crimes against humanity, and genocide. This understanding endured throughout the negotiations in both the Preparatory Committee and the Rome Diplomatic Conference. There were those initially wishing to extend the purview of the Court’s authority to include crimes such as drug trafficking and terrorism, but this was eventually dropped when it became clear that most other governments did not want a debate on these crimes to interfere with reaching a core agreement. In their early stages these negotiations took an important and different approach to the creation of the ICC Statute. The usual practice at the 7 Establishment of an International Criminal Court, UN General Assembly Resolution 50/46, 50th Session, 87th plenary meeting, Official Records, UN Doc. A/RES/50/46 (11 December 1995).

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United Nations in negotiating treaties and other complex documents had been to solicit proposals from states and compile them into categories. These compilations would then be reduced into smaller texts and eventually become sections of the draft treaty. Throughout the course of most multilateral negotiations, especially in those to create a treaty, an initial draft, if there is one, tends to become more diluted as negotiators search for common ground among governments. In the case of the ILC draft statute, most aspects of it were strengthened during the work of the Preparatory Committee and the Rome Diplomatic Conference. A major example of this was the decision of the International Law Commission to leave most of the Rules of Procedure and Evidence to the future judges of the Court. However, the Ad Hoc Committee determined that most of these matters should instead be included in the eventual statute. Deciding on and drafting these due process rules and methods became an important part of the central work of the Preparatory Committee and the Rome Diplomatic Conference. These changes from the ILC draft statute had several sources. One was the vision, which arose in the 1994 General Assembly session and became a detailed concept during the Ad Hoc Committee meetings, of the Court as a true criminal court. It was also important to many states that the new International Criminal Court would be both a center for the development of a stronger system of international justice and a model for those states struggling to improve domestic laws and their legal institutions devoted to combatting atrocity crimes. Consequentially, the eventual Rome Statute, although clearly the child of the ILC’s draft, turned out to be very different from it in many ways. Certain sections, although retaining a title and some introductory language from the draft statute, were otherwise like the proverbial axe that has acquired a new handle and new blade. The ILC draft statute was nonetheless very important to the negotiations as an organized beginning for them, as a template for their work ahead as well as for the spadework it saved the Preparatory Committee. IV. The Meeting Halls The Ad Hoc Committee and the Preparatory Committee met in halls on the ground floor of the conference wing of the United Nations building  in New York. The buildings in this wing are spread out horizontally so as to represent the sovereign equality of the nations that meet in it.



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This contrasts with the vertical glass skyscraper of the Secretariat wing, which expresses the hierarchy of the staff and leadership of the United Nations. Across the corridor from the conference halls used for these meetings (usually Conference Room 1) are smaller conference rooms. At each meeting, the global NGO Coalition for the International Criminal Court (CICC) used one of these rooms as its operations center. United Nations regulations required that a member nation of the UN reserve the room. Several nations, with New Zealand being the most frequent, made these reservations on behalf of the CICC. An observer in one of the higher seats in the conference hall would see the Conference reporters sitting on the floor directly in front of and below the podium and at right angles to it. UN conference specialists could be observed serving the meeting bustling in and out of their workstations along the wall behind the podium. Government delegates sat in wide arcs facing the podium. At the top of a wall in the back of the room and just underneath the ceiling were the glass booths for the translators. One would especially watch for who was coming and going through the exit and entrance doors in both the north and south ends of the conference room. Just outside these there were tables for papers and documents, including materials from nongovernmental organizations and other private sources. There were many of these, prepared especially in most cases for each session of the Preparatory Committee. Delegates took these freely, and they were an important part of the advocacy of NGOs with government representatives. On the left side of the seating for delegates and facing the dais were tiers of seats for nongovernmental organization representatives, other observers, and overflow government delegates, which rise steeply to doors that open on to the first floor. We imagine our observer as watching from one of these seats. Since all of these tiers are well above the heads of the government delegates even when they are standing, the entire floor of the conference hall was visible from any seat. For this reason, the government delegates to the Preparatory Committee, much to the dislike of some, often felt that they were under constant observation. For the nongovernmental and other representatives in the bleacher seats, able to watch but not participate directly, there was often an air of theatricality in the scene before them. An impasse might have resulted in a brief recess for consultations between delegations and the Bureau at the dais. Watching closely, it was often possible for the observers to interpret the meaning of the actions and movements of delegates on the floor. For example, they could

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conclude that a small group of government representatives leaving the dais to confer in a far corner of the room had been appointed on the spot by the chairman to work out a solution to the deadlock. A huddle of delegates from the same part of the world could be trying to reach a regional position. Before and after the sessions, and during breaks, there was much to-ing and fro-ing between the floor and the tiered seats as nongovernmental organization representatives lobbied and conferred with government delegations and consulted with one another. These seats, the podium, and the arcs of places for governments were the most prominent visual features of these halls. With their very large proportions, their two-story-high ceilings, and their vaguely Scandinavian, modern décor, these conference rooms were airy and full of light. Although they seemed out of date since they were in fact almost entirely unchanged from their original 1950s construction, they nonetheless had good, functional design. The generous margins around the sides of the seats for government delegation and the wide aisles offered ample space for meetings and greetings, networking, visits by one delegation to the seats of another, and huddled impromptu consultations. All of this could go on without interrupting sessions in progress. As the designers of these rooms had intended, many quick fixes and rapid compromises came from consultations in these spaces. Unfortunately, the conference technology in these halls had also not changed much since the 1950s. Even the seats for government delegates provided only a microphone and a clunky, plastic earpiece to hear original speeches or their simultaneous translations. There were none of the hightechnology facilities now standard in meeting rooms in Europe and the United States. There were no built-in computers at the seats for governments, so delegates brought their own laptops. Since there was no screen or computer system to show texts, delegates had to read out their proposed amendments or proposals repeatedly at dictation speed. There was no voting during any of the Preparatory Committee sessions, but had there been, it would have required either a show of hands manually counted by the conference officers or ballot boxes. There was no voting board in any of the conference halls during the ICC negotiations in New York. V. The Ad Hoc Committee (1995) The Ad Hoc Committee met in 1995 from 3 to 13 April and from 14 to 25 August. From the start, it was already obvious that the treaty for the International Criminal Court would be long, complicated, extremely



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technical, and politically difficult. As with other treaties with complex texts, it would be necessary to break the document down into parts, which could be dealt with separately and then brought together again into a final document. Both in domestic legislatures and the General Assembly of the United Nations, this work on parts of complex resolutions or laws could be assigned to various standing committees. By contrast, the AHC would have to create its own working parties and also prepare the way for a more extensive set of these in the future detailed negotiations, which it would recommend and the General Assembly would authorize. This division of work would influence the final organization of the Statute of the Court, the inner relations between its different parts, and also the drafting and consolidation of the treaty into a final form. Until recently, treaty making had been thought of as essentially a process of its own kind, neither as legislative in the way that laws are made domestically, nor like the making of resolutions in governing bodies such as the United Nations General Assembly. However, there were some obvious parallels to domestic legislation in the relationship between committees of governing bodies such as the General Assembly and the work of committees in domestic legislatures. This made it natural for the officials of the AHC and the Preparatory Committee in organizing the negotiations that lay before them to consider these models as well as lessons from the development of other complex treaties. The exceptional nature of both the proposed International Criminal Court and its Statute required that the negotiations be much more legislative than those for other recent treaties. This was an important consequence of their recognition that the Court could not be a conventional international organization, but rather had to be a true court very much like the courts in the best domestic criminal justice systems around the world. Its Statute would have to be all at once a kind of constitution; a charter; a highly detailed body of laws constituting a special jurisprudence; and a comprehensive set of provisions for administration and management, for rules and procedures, for the exercise of jurisdiction, and for the major functions and mutual relations of the major organs of the Court. It was clear, too, that the Statute would have to resolve all of these questions itself. It would not do to create a court only in general terms, leaving its governing body to work out the details, including the Court’s jurisprudence, its jurisdiction, and its structure and operations. Nations considering adopting or ratifying the Statute would need to know in some detail what the Court would be like and how it would work. The Court would also need to start operating as quickly as possible after it was established. It would be unwise to leave its powers and characteristics in the hands of

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a young governing body whose beginning membership might well be limited in scope and number. This increasing resemblance to domestic legislation expanded the controversy over the creation of the Court’s Statute. There were considerable reservations by some international lawyers and law experts and by parts of the global community that diplomats ought not to behave like international legislators. This perception also deepened concerns about the erosion of individual national sovereignty by norms and laws created all at one time by government delegations, as contrasted to the traditional creation of international law by the accumulation of the practice of states over time as elaborated on and refined by international jurists. Once adopted, a treaty, including one establishing a body of international law, would be much more difficult to change than would an element of evolving international law, which could be slowed down or halted by a declaration from either a nation or group of nations. 1. First AHC Session (3–13 April 1995) Despite these concerns, the government delegations and the United Nations officials settling into their seats on 3 April in Conference Room 1 did not consider that they were embarking on a bold new adventure in negotiating a treaty at the United Nations. The room’s buzz as colleagues old and new met and talked was not from expecting a new experience but rather from the excitement of creating a new international institution and a special kind of charter for it. There was also for many a satisfaction at finally beginning to fulfill an objective, which was important to them personally and to the foreign policies of their countries. Finally, underlying all of these feelings was concern about what kind of recommendations the Ad Hoc Committee would make to the General Assembly. Some initially hoped or feared that these recommendations would include the immediate convening of a diplomatic conference, though this prospect would soon be set aside. By contrast, for most of the nongovernmental organization representatives climbing into their places in the upper tiers or circulating on the floor for last-minute conversations with government delegates, the negotiations about to begin were something almost entirely new. Except for a few older NGO members, most were unfamiliar with conference rooms in international organizations and multilateral diplomacy. The initial documents before the Ad Hoc Committee were the latest version of the draft statute from the International Law Commission and a



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summary of the discussion on the International Criminal Court, which had been held in the Sixth Committee of the General Assembly during its forty-ninth session. There were also comments from governments received in response to the request for them in the General Assembly Resolution 49/53.8 There was a report submitted by the Secretary-General, as also required by that resolution, providing provisional estimates of the staffing structure and costs of an international criminal court. There were also a number of informal papers from government representatives and a substantial body of reports and documents by experts and from NGOs. The Bureau had also prepared a list of major substantive and administrative issues in the ILC draft. These had been identified in informal consultations conducted by the various regional groups at the UN. Bureau papers focused and directed the negotiations in the Ad Hoc Committee and were to become increasingly frequent as its work progressed and approached its end. As it continued, the AHC generated a substantial variety of ephemeral documents including preliminary positions floated as non-papers, the reports of working groups to the plenary of the Committee, and papers generated by intersessional meetings of governments and NGO representatives and experts. Governments often introduced many of the latter in order to give them greater status in the Committee deliberations. Taken together, these materials foreshadowed some of the major characteristics of the Ad Hoc Committee, many of which were to carry over into the Preparatory Committee sessions and, in altered form, even into the Rome Diplomatic Conference itself. A few examples of these characteristics were firm direction by the Bureau; very active participation by NGOs; the influence of the politics of the United Nations as represented by the regional groups; the views and positions of government representatives and information provided by the United Nations; and the influence of authorization from and the need to report to the General Assembly. Decisions in the General Assembly authorizing resolution shaped the AHC in several ways.9 The invitation from the Italian government to hold  the diplomatic conference in Rome was accepted, the Committee declared that it would produce a decision on whether such a conference should be held at once or not, and a requirement was agreed that the Ad Hoc Committee would simply identify the “major substantive and 8 Resolution on the Establishment of an International Criminal Court, UN General Assembly Resolution 49/53, 49th Session, 84th plenary meeting, UN Doc A/RES/49/53 (9 December 1994). 9 Ibid.

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administrative issues arising out of the [ILC] draft statute for the establishment of an international criminal court.”10 On the question of holding a diplomatic conference, the Committee reached a conclusion that such a conference was feasible but felt that it could only be held after further debates and negotiations in a Preparatory Committee had taken place. The AHC also went beyond simply identifying central issues to examine in many cases the key factors in those issues, which would have to be resolved in order to reach decisions on them. The invitation from Italy made a diplomatic conference seem a reality and a practical prospect. This feeling was further heightened when Italy extended this invitation again in 1997 to the General Assembly, this time in further detail. This in turn led to a final Assembly acceptance and the selection of the dates for the conference: 15 June to 17 July 1998. Similarly, the invitation from the Netherlands to the Preparatory Committee in March 1998 to host the International Criminal Court in The Hague made the eventual existence of the Court a concrete reality to the negotiators at Rome as they now envisaged a city, a site, and a building. As we have seen, the atrocities revealed in the work of the tribunals for the former Yugoslavia and Rwanda and the agonizing recognition that similar crimes were still being committed drove members of the General Assembly to the conclusion that a permanent international criminal court needed to be created. Nonetheless, there were times in the work of the AHC and the Preparatory Committee when the debates more often seemed to be about discussing interesting abstract questions in international law rather than the practical issue of how to make a court. The prospect of a diplomatic conference on a certain date at a designated location helped to bring focus back to these discussions. The Italian and Dutch invitations also reassured those with the less interesting tasks of designing the administration, management, organization, and financing of the court that their work would actually be put to use. In its first day, the Committee followed the usual practice of UN bodies by adopting a list of officers and a pre-agreed agenda. The very sparse agenda simply repeated the mandate from the General Assembly and included the usual items on opening the session, electing officers, approving the agenda, organizing the work, and adopting the final report. Also according to United Nations custom, the four officials of the Committee 10 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN General Assembly, Official Records, 50th Session, Supplement No. 22, UN Doc. A/50/22 (1995).



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came from the four UN regional groups: Chairman Adriaan Bos (Western European and Others Group), Vice-Chairpersons Cherif Bassiouni (African Group) and Silvia A. Fernández de Gurmendi (Latin American and Caribbean Group), and Rapporteur Kuniko Saeki (Asian Group). The chairman went on after the Ad Hoc Committee to preside over all of the sessions of the Preparatory Committee, and the vice-chairpersons remained involved in important positions in the negotiations throughout the Rome Diplomatic Conference. A considerable number of government delegates also continued to participate in negotiating including through the diplomatic conference. Seventy-five delegations participated in the two sessions of the Ad Hoc Committee. All of the Permanent Five members (P5) of the UN Security Council were represented: China, France, Russia, the United Kingdom, and the United States. Of the 148 delegations in the final vote at the Rome Diplomatic Conference to adopt the ICC Statute, 54 had also participated in the Ad Hoc Committee sessions. At least 33 delegates engaged in the sessions of the Ad Hoc Committee would also be present in Rome. A number of these held key positions as heads of working groups or as facilitators on particular issues in the Ad Hoc Committee and kept these positions or similar ones through the meetings of the Preparatory Committee held from 1996 to 1998 and at the Rome Diplomatic Conference. Delegations from all of the permanent members of the Security Council, except Russia, and from other important states such as India, Japan, Brazil, and Mexico were to have these continuing representatives. This continuity and the bonding it promoted were an important reason for the speed, the psychological and emotional vigor and for the success in finding compromises of the negotiations as a whole. In March 1995, before the Committee opened, the UN Secretariat had discussed informally with UN member states those main issues raised by the International Law Commission draft, which the AHC should debate and report on to the General Assembly. A list of these was among the materials before the Committee as it began. The issues were the establishment and the composition of the Court; questions of jurisdiction; the nature and types of proceedings in the Court and ‘due process’ (how to ensure fairness in court proceedings), especially for the defendant; the relations between states parties; the relationship, if any, between nonstates parties and the International Criminal Court; and the budget and administration of the ICC. At the initiative of the officials of the Committee, it decided at once to discuss these as general issues rather than perform a complete review of

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the ILC draft article-by-article. However, it used the sections of the draft, which covered these issues, as templates for discussion. The officials of the Committee were determined to keep the discussions as specific and practical as possible to avoid repetition in statements by government delegations and to encourage them to present their new proposals or suggestions in the form of amendments to the ILC draft. To help this along, the Bureau offered guidelines and logistical suggestions for each major issue under discussion. The Bureau recommended that the starting place for these discussions should be the draft text prepared by the International Law Commission but that the work of the Ad Hoc Committee, statements by governments, and also reports by private organizations should also be taken into account. The Committee therefore intended that although the Interna­ tional Law Commission draft should be the initial template and provide a preliminary framework for the future discussions, the final document to be presented to the Rome Diplomatic Conference might well be a largely new draft statute. Although the new process might at any time substantially alter or even dismantle parts of the structure of the ILC draft, this document would nonetheless be available as a way to organize and keep track of discussions and new texts. The Committee, at the Chairman’s urging, organized its work to serve the same purposes of specificity and practicality. The Committee established a Working Group open to all of its members and chaired by Gerhard Hafner of Austria. The Committee assigned certain issues to the Working Group and debated others in its plenary sessions. The Working Group first prepared an informal paper on due process. The Committee adopted this as a good, preliminary basis for further discussion. The Bureau then instructed the Working Group to prepare guidelines for the Committee’s consideration on the relations between states parties, non-states parties, and the International Criminal Court as well as on general rules of criminal law. The Committee normally adopted and used these guidelines. This division of work between the plenary and the working groups also made it possible for the international law experts among the government delegations to focus on highly technical subjects. In this way, the experts were able to define and explain these subjects for the benefit of other delegations that did not have the relevant expertise and to prepare for the Committee’s consideration recommendations to the General Assembly. Meanwhile, the plenary sessions heard general statements of position by government delegations during most of the first week of the session. As a current economy measure, the United Nations did not make verbatim



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records of these statements in subordinate bodies of the General Assembly such as the Committee. Instead, they were summarized in the Committee’s reports and UN press releases. Following UN practice, these papers did not individually identify the states that spoke. Instead, indications were given of how much support governments had expressed for a particular position or aspect of the treaty. Nongovernmental organizations, on the other hand, produced and circulated informal reports of the major issues raised in speeches, which identified the nations speaking on the majority on those issues. Later in this April session, the Committee identified and then debated issues that it believed would be the most challenging to resolve. Examples of these were jurisdiction, ‘complementarity’ (the relation and deference of the court to domestic systems of criminal justice), and the role of the UN Security Council. In fact, these issues were not resolved until the final days of the Rome Diplomatic Conference. Without the Committee’s preliminary work, which precisely identified unresolved political questions and the exact disagreements they had aroused, the Rome Diplomatic Conference would never have been able to reach its painfully difficult lastminute solutions to these issues. Interim reports of these proceedings made it possible for governments and nongovernmental organizations to track trends in positions and opinions about the Court. Tracking through the report to the General Assembly, it became evident that the government statements had shown a surprisingly high degree of agreement on fundamental aspects of the Court. It could achieve its intended purposes if it was independent and offered maximum guarantees to defendants. The Court should also complement and not supplant domestic courts, and its jurisdiction should be limited to the most grave atrocity crimes. For it to be most effective, eventually all states should participate in the Court. 2. Trends in Government Positions at the First AHC Session Should the Court be Permanent? Almost all the delegations that spoke to this question thought so but believed that it should sit only when it was needed. This latter condition was abandoned during the negotiations in the Preparatory Committee. Nations in support of a permanent Court included: Antigua and Barbuda, Argentina, Australia, Austria, Brazil, Canada, China, Denmark, Finland, Hungary, Japan,

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Korea, Mexico, Morocco, Poland, Romania, the Russian Federation, South Africa, Sweden, Trinidad and Tobago, Ukraine, and the United Kingdom.

Should the Court be Established by a Multilateral Treaty or by Amending the United Nations Charter? All states speaking on this question, except Algeria, supported the establishment of the Court through a multilateral treaty. These states included: Antigua and Barbuda, Argentina, Austria, Brazil, Canada, China, Denmark, Egypt, Finland, the Gabonese Republic, Hungary, India, Japan, Korea, Morocco, the Netherlands, Poland, Romania, the Russian Federation, South Africa, Sudan, Sweden, Thailand, Ukraine, the United Kingdom, and the United States.

What Relationship Should the Court Have with the United Nations? Almost all delegations speaking to the subject agreed that the Court should have a close relationship with the United Nations expressed in an agreement between the two institutions. These nations included: Argentina, Austria, Canada, the Netherlands, Romania, Sudan, Sweden, the United States, and Uruguay.

Should the Statute Contain Specific Definitions of the Crimes the Court Would be Empowered to Try? A substantial majority of speakers supported this proposal. Among these were: Chile, China, France, Greece, Italy, Japan, the Netherlands, Norway, Romania, South Africa, Sudan, Switzerland, Ukraine, and the United States.

Over What Crimes Should the Court Have Automatic Jurisdiction? A substantial plurality of states believed that in addition to genocide, the Court should have automatic jurisdiction over war crimes and crimes against humanity. In this plurality were: Argentina, Chile, the Czech Republic, Denmark, Finland, the Gabonese Republic, Italy, the Netherlands, and New Zealand.

Should the Security Council be Able to Refer Cases to the International Criminal Court? A large majority of states believed that the Security Council should be able to refer cases to a Court that should have the option to accept or reject such



negotiating the international criminal court31 referrals. This majority included: Argentina, Australia, Canada, Denmark, Finland, the Gabonese Republic, Italy, Netherlands, New Zealand and Sweden.

Should the Security Council be Able to Prevent Cases from Going to the Court? All delegations commenting on the proposal that the Security Council should be able to bar cases from the Court opposed it. These were: Australia, Canada, Finland, the Gabonese Republic, Italy, the Netherlands, and New Zealand.

Must the Court Have the Consent of Interested Nations before it can Take Jurisdiction Over Any Case? The United States strongly urged this position in its comments in response to the invitation of the Secretary-General and in a speech during the opening days of the Ad Hoc Committee. It had support from China, the Russian Federation, and a number of other states, particularly from those of the Middle East. Most other delegations speaking on this issue firmly rejected it. These latter states included: Australia, Canada, Denmark, Italy, and the Netherlands.

The most frequent speakers in the Ad Hoc Committee were committed to achieving a strong international criminal court. They would become leaders in all of the later negotiations to create the Rome Statute. Their leadership in the AHC and their cooperation and coordination with each other dominated the drafting of the Committee’s report to the General Assembly. Their support for this report generated the momentum behind the Assembly’s eventual decision to authorize the negotiations in the Preparatory Committee. 3. Second AHC Session (14–25 April 1995) From 23 to 24 August 1995, during the final days of the AHC’s second phase, the Committee considered the outcome of its work and the recommendations that it would make to the General Assembly. The general mood in the room, crowded with delegations, often at full strength, and in many cases once again led by senior officials, was a combination of satisfaction and surprise. UN officials, the officers of the Committee, government

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delegations, and NGO representatives were satisfied with and surprised by the extent of the agreement that they had reached. Initially there had been a wide variation in views and more disagreement than agreement. However, the Committee had been able to come together on the fundamental nature, the importance, and many of the basic elements of the proposed Court. There was a clear general picture, even if many details, including some extremely important ones, were still missing. Delegations were also impressed by the quality of the work and the high standard of debate. For those inexperienced in public discussion in UN meetings, the debate might have been perceived as repetitive, unnecessarily time-consuming, and full of rhetoric. However, for veterans of UN meetings, the Ad Hoc Committee discussion had seemed businesslike, with a well-informed focus on the issues at hand, and blessedly free from the pursuit of irrelevant political and personal agendas. From their public statements as well as from private consultations and interchanges in the Working Group, delegations had clearly learned from each other and from the experiences of the ICTY and ICTR. In this last session, the Committee reviewed and adopted its report to the General Assembly. The report described the positions of individual and groups of nations without identifying them. The report had to accurately present the position of the majority on each issue, while fairly describing dissenting views, especially those of substantial minorities. In the Sixth Committee, some of the major participants repeated their positions in the AHC. Other states had to address the International Criminal Court for the first time. The report would have to inform these governments about the Court and the work of the Ad Hoc Committee in a way that would encourage them to accept and support its conclusions, which were based largely on the majority positions. In its conclusions, the Committee reported that it had made considerable progress but that “further work on the establishment of an international criminal court [had] to be done.”11 These conclusions were not entirely what the General Assembly had anticipated in its 1994 resolution. The Ad Hoc Committee did not decide simply whether or not a diplomatic conference on a treaty should be convened soon. Instead it told the General Assembly that the AHC’s review of issues arising from the International Law Commission draft statute made clear that necessary work should be carried out in further preparations combining discussions 11 Ibid.



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on these issues with the drafting of actual texts. These texts together would constitute a draft of a new treaty for the International Criminal Court. A diplomatic conference would then be able to complete and adopt it. The Ad Hoc Committee disappointed alike optimistic supporters who wanted a diplomatic conference convened soon and opponents who thought that that the kind of international criminal court that had begun to emerge in the AHC sessions would be impossible or even dangerous. The appeal of the report was that it confirmed excellent prospects for the creation of a court while making prudent recommendations on how to achieve it. It emphasized that its discussions had been useful and that it had made considerable progress on key issues in the draft statute. Its detailed recommendations for further preparations were “in the light of the progress made.”12 It was hard to contest this description of the Committee’s progress and its thoughtful and sensible recommendation for further preparations. In speeches and remarks in the closing sessions of the Committee, and in the debate in the Sixth Committee and in the General Assembly, it became clear that supporters recognized that the AHC clearly foresaw the creation of the Court and had laid out a thoughtful program to achieve it. It was also evident that opponents, surprised by the fervor and level of agreement in the Committee, had generally decided that it was more prudent to use future negotiations to either shape the Court according to their own preferred model or derail it rather than to abruptly oppose the Committee’s recommendations. Members of the UN Office of the Legal Affairs served both Committees; collaboration among this staff, their superiors, and the respective Committee leaderships in preparing for the debate in the Sixth Committee was therefore easy and natural. Supporters of the Ad Hoc Committee’s report, both government delegates and representatives of nongovernmental organizations, discussed it with states that were members of the Sixth Committee. A group of international nongovernmental organizations convened a meeting of the NonAligned Movement in Colombia from 14 to 20 October 1995 to include sentences about the International Criminal Court in its final declaration. These sentences clearly expressed the movement’s desire for some kind of international court for atrocity crimes as well as its wariness about the status of such a court:

12 Ibid.

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chapter two Further progress is necessary to achieve full respect for international law… and [to promote] a system of international criminal justice with respect to crimes against humanity as well as other international offenses.… [I]nternational law must be kept above the exigencies of politics. It is therefore essential to maintain autonomy of judicial organs being created. These organs must be separate from, and independent of, political organs of the United Nations that cannot assume the role of a parallel or superior court of justice.13

VI. The Sixth Committee There is a community of legal experts and advisers to delegations at the United Nations centered on the Sixth Committee and on expert groups such as the International Law Commission. Many of the delegates in the Ad Hoc Committee belonged to this community. The chairman of the Sixth Committee, Ambassador Tyge Lehmann of Denmark, had been a respected member of this community for a long time. His promotion to ambassador for Human Rights followed long service as director of Human Rights in the Danish Foreign Ministry. He had been a senior member of Denmark’s delegation to the World Conference on Human Rights, an agent of the government of Denmark for European Union human rights bodies, and legal adviser of the Danish delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable to Armed Conflicts.14 Several books on international law and fourteen years as an assistant professor of international law at the University of Copenhagen had given him strong standing among academic experts on international law. Like many other government representatives in the negotiations to create the Rome Statute, he was at once a recognized legal expert and a professional diplomat in his country’s foreign service with understanding and skills born of long experience in the politics and processes of international organizations. At the Rome Diplomatic Conference, he would be the alternate 13 Non-Aligned Movement Summit Declaration, 12th Ministerial Conference, Cartagena de Indias, Colombia, 18–20 October 1995, NAC 11/Doc.1/Rev.3, paras. 122–124. Often referred to as the “Cartagena Declaration”. 14 The World Conference on Human Rights took place in Vienna, 14–25 June 1993, and culminated in the consensus adoption of the Vienna Declaration and Programme of Action. See: UN DPI /1394/Rev.1/HR-95-93241 (April 1995): www.ochr.org/EN/ABOUTUS/ Pages/ViennaWC.aspx. The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable to Armed Conflicts took place from 1974 to 1977.



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head of the Danish delegation. His career had been and would be a strong example of the power of the United Nations to give men and women representing small nations a chance to make full use of their abilities and to contribute significantly to international relations. Adriaan Bos and the ICC supporters in the Ad Hoc Committee were fortunate to have Lehmann to steer their report in the Sixth Committee. From early on, Denmark had been one of the northern European states at the nucleus of an informal group of ICC proponents that later developed into a formal caucus in the negotiations. In a meeting with representatives of nongovernmental organizations just before the ICC debate in the Sixth Committee began, Lehmann supported the concept of the Ad Hoc Committee’s proposed international criminal court. He added that the Preparatory Committee should move beyond the discussion of general issues, as in the Ad Hoc Committee, to an early start on drafting the text of a convention on the Court. With what turned out to be prescience, he noted that further negotiations would take decisions by consensus but that there might have to be a vote at the end of the diplomatic conference. It would be his task to achieve such a consensus on the ICC in the Sixth Committee. Like legislatures and governing bodies everywhere, the United Nations General Assembly has rules and traditions about how to make decisions. Over decades, it has remained a general rule in the Assembly that consensus decisions be required whenever possible. This requirement is particularly important in the meetings and bodies of international organizations whose members are sovereign states. Consensus respects the traditional legal equality of sovereign states, which the language of the United Nations Charter confirms. Moreover, resolutions of the General Assembly are not binding on its members and therefore are most likely to have practical effect when all members agree to them. Consensus also helps to speed things along. The General Assembly therefore has a practice that it will adopt by consensus and usually without debate any report or resolution adopted by consensus in the committee that forwarded it. This usually means that substantive debates on many issues in the General Assembly take place only in committees and that their chairpersons are under heavy pressure to achieve consensus decisions. Except for draft resolutions on the ICC and about measures to eliminate international terrorism, the Sixth Committee’s agenda consisted of standing items. As the debate opened on 30 October 1995, Ad Hoc Committee Chairman Bos introduced its report to the General Assembly’s Sixth Committee.

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He said that the Ad Hoc Committee had reached broad agreements on several points, namely that the Court should be created by a multilateral treaty; it should have close relations with the United Nations but still be independent of it; the core crimes within the Court’s jurisdiction should be genocide, crimes against humanity, and war crimes; and the relationship between the International Criminal Court and the United Nations Security Council was centrally important and must be clearly resolved. Accordingly, there had been good progress on the fundamentals of a Statute for the Court, but much more work needed to be done. The Sixth Committee meeting opened with a considerable number of government delegations already committed to a Preparatory Committee report more or less as proposed in the draft resolution. An informal survey of some seventy states by nongovernmental organizations indicated that at least forty-four shared this commitment. However, some eighteen nations preferred to continue the Ad Hoc Committee with further general discussions and only limited drafting.15 Many participants in the Sixth Committee had little understanding or information about the Court. Delegations of countries supporting the Court and representatives of nongovernmental organizations worked the margins of meetings and also met nations individually or in small groups. These activities were an early stage in the continuing education about the Court for unaware or doubting United Nations member states that had begun in the Ad Hoc Committee. This was to continue through the Preparatory Commission’s sessions and on to the end of the Rome Diplomatic Conference. The coordination, commitment, and continuity of this effort by governments and NGO representatives put many opponents of the emerging Court at a disadvantage despite their importance as individual nations and their influence at the United Nations as permanent members of the Security Council. As speechmaking continued in the Sixth Committee, it became apparent that even those states uninformed about the story of the court at the United Nations nonetheless found the proposal to convene a preparatory committee to develop a treaty draft reassuringly familiar. This was how other treaties had been developed at the United Nations in the past. A number of these treaties, such as the Law of the Sea Convention, also 15 Memorandum. William R. Pace, WFM-IGP, to NGO Coalition for an International Criminal Court, NGO Committee on the Sixth Committee, Other Interested Parties, 11 November 1995. “Re: Notice of Documents, Update on ICC Negotiations” including attachment: “Matrix of Country Positions on the ICC for November 1995. UN Sixth Committee Meetings”. Unpublished internal document on file with the authors.



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dealt with complicated international law subjects and managed to create new international institutions. Some of these states would only later recognize that a familiar process was being used to create a very different kind of international institution to apply a body of international law, which had been refined and advanced in the founding treaty, to individuals. Other members of the Sixth Committee saw that the AHC report opened the way to an extraordinarily important event for the future history of international law dealing with atrocities. This would sharply influence its development and simultaneously create by treaty a new kind of court to enforce it. In general, the speeches in the debate revealed a division between a substantial majority, which wanted a Preparatory Committee that would start drafting almost at once, and a relatively small but powerful minority of governments that demanded more general discussion of basic issues either in a continued Ad Hoc Committee or in a Preparatory Committee limited to that discussion. These latter states included China, Mexico, Japan, Russia, and the United States. The debate also displayed differences among certain regions that would last up until the Rome Diplomatic Conference. Venezuela delivered a strong endorsement of a Preparatory Committee as described in the resolution and was seconded by a number of other Latin American governments. Asian and Middle Eastern states were either silent or stated serious reservations. However, Pakistan’s carefully defined support for a permanent international criminal court was a clear contrast to India’s sweeping objections. South Africa delivered a very strong endorsement, which foreshadowed its leadership of African nations throughout the further negotiations. Spain made a speech on behalf of the European Union, which, although not as detailed or powerful as those by EU members such as Germany, France, and the United Kingdom, was a straightforward commitment to endorsing the draft resolution, drafting texts in particular, and continuing discussions. New Zealand’s speech was a compelling expression of the need for the court and a review in some detail of fundamental issues such as jurisdiction, the independence of the Court, and its relations with the United Nations Security Council. Australia and Canada spoke similarly. The United States said that “it [was] ready to move forward with attempts to establish a permanent court,” but did not specifically support the creation of an international criminal court.16 It listed a number of 16 Statement by Jamison S. Borek, U.S. Department of State Deputy Legal Adviser, in USUN Press Release 182, “Note to Correspondents on Agenda Item 142: Establishment of an International Criminal Court,” UNGA, 50th Sess., Sixth Committee, 1 November 1995.

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issues deemed concerning and unresolved. Two of these, the need for the consent of states to the Court’s jurisdiction over cases involving them and its opposition to the ability of the Court to prosecute nationals of states not party to its Statute, were to persist all the way to the end of the diplomatic conference. The United States ended by declaring its understanding that: drafting will begin only after sufficient discussion and consideration has been given, and the parameters for appropriate solutions, or the issues and alternatives, are relatively focused and clear.17

Chairman Lehmann moved the negotiations into a series of informal off-the-record, closed-door meetings. In the third meeting on 17 November, opposition to the draft resolution remained from China, Cuba, India, Kenya, Mexico, and Thailand, among others. The Chairman resisted demands to prepare another draft resolution on the report. Instead, he took the negotiations into further meetings with small groups and individual government delegations. On 29 November, the Sixth Committee finally adopted a draft resolution by consensus with only two substantial changes from the original proposed by the Ad Hoc Committee. At China’s request, another paragraph was included in the Preamble: Noting also that the states participating in the Ad Hoc Committee still have different views on major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and that, therefore, further discussions are needed for reaching consensus on the above issues in the future.18

This paragraph followed another, which noted the considerable progress made in the Ad Hoc Committee on major issues. A group of developed and developing countries secured a new operative paragraph urging “participation in the Preparatory Committee by the largest number of states in order to promote universal support for an international criminal court.”19 Mexico and China expressed continuing reservations about the resolution but permitted the consensus to go forward. At the same time the Committee distributed a work program for the Preparatory Committee. 17 Ibid. 18 Creating a Preparatory Committee on the Establishment of an International Criminal Court, UN General Assembly Resolution 5046 (L), 50th Session, Supplement No. 49 at 307, Official Records, UN Doc. A/50639 (1995). 19 Ibid.



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On 11 December 1995, the General Assembly adopted this resolution by consensus and without discussion.20 The General Assembly also approved a recommendation from the Committee on Conferences for a waiver to permit the Preparatory Committee to convene in December 1996, despite the rule forbidding subsidiary bodies to meet when the Assembly is in session.21 The General Assembly further endorsed an agreement by the Fifth Committee (responsible for budgetary matters) to reduce the number of its own meetings in order to free up funds for the Preparatory Committee sessions. The United States had insisted on this agreement. The leadership and support team of the Ad Hoc Committee, with its work now completed, began at once to get ready for the first session of the Preparatory Committee on 25 March 1996. IV. The Preparatory Committee (1996–1998) The Preparatory Committee (PrepCom) held meetings beginning in March 1996 and ending in April 1998 for a total of fifteen weeks. The General Assembly’s choice of the Chairman of the Ad Hoc Committee, Adriaan Bos, to also be the Chairman of the Preparatory Committee was an early example of the importance of the continuity of persons as well as procedures and concepts throughout the ICC negotiations. Through him and other continuing members of the Bureau and UN officials, the background, as well as the formal content of the decisions and outcomes of the Ad Hoc Committee, were easily carried over into the work of the Preparatory Committee. 1. First Session (25 March–12 April 1996) The first session of the Preparatory Committee met in 1996 from 25 March to 12 April.22 The General Assembly resolution asked the Preparatory Committee to draft texts, which could become “a widely acceptable consolidated text of a convention for an international criminal court.”23 20 Ibid. 21 Rule 34, “Planning of Meeting”. Rules of Procedure of the General Assembly, UN General Assembly, Official Records, UN Doc A/520/Rev. 15, annex VI, decision 34/401 (31 December 1984), 69. 22 See Christopher Keith Hall, “The First Two Sessions of the Preparatory Committee on the Establishment of an International Criminal Court,” American Journal of International Law 91, no. 1 (1997), 177. 23 UN General Assembly Resolution 5216 (LII), 52nd Session, Supplement No. 49 at 384, UN Doc A/5249 (1997).

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The Preparatory Committee was authorized to take into account the report of the Ad Hoc Committee as well as written government comments and materials from relevant nongovernmental organizations. At its fiftyfirst session, the General Assembly would decide whether to convene a diplomatic conference to complete and adopt a statute for the International Criminal Court. The task of the first two sessions of the Preparatory Committee was therefore to conduct a debate and to create potential parts of an international criminal court treaty, which would enable the General Assembly to make the decision on convening a diplomatic conference. Since the leadership of the Committee considered that its mandate required it to determine areas of agreement or disagreement, it met almost entirely in plenary in the first session.24 There was relatively little drafting of actual texts, and the final report of the 1996 meetings instead contained recommendations for further action to the General Assembly. There were in fact many areas of general agreement. Quite a few of these concerned fundamental aspects of the Court and its operations. There appeared to be extensive agreement that the Court’s jurisdiction should be limited to the most serious acts of genocide, crimes against humanity, and violations of the laws of war. There was a general inclination to also include the crime of aggression, but there was extensive disagreement over how to achieve a definition of this crime and what the procedures for taking it to the court should be. On the question of definition of crimes in general there was almost complete agreement that this should be clearly detailed in the Statute. To this end, most states agreed that the definition in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide should remain unchanged, and that the legal history of crimes against humanity since Nuremberg required that they be reworked and expanded. Other agreements were that general principles of criminal law should be laid out in detail and that the fundamentals of cooperation between the Court and states should be fully described. There were, however, the very wide differences on how cooperation should be carried out. Heated discussion about how cases should reach the Court and the powers of the Prosecutor during this process foreshadowed the contention on these topics that featured later on in the negotiations.

24 See William Pace and Tanya Karanasios, “Outcome of Preparatory Committee Meeting, March 25–April 12,” NGO Coalition for an International Criminal Court website: www.igc.apc.org/icc.



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2. Second Session (12–30 August 1996) The second session brought a significant change in the organization and operation of the Committee.25 Three working groups were formed to respond to working papers submitted in advance by governments on general principles of criminal law, state cooperation with the Court, and rules of procedure. The working group methods would develop and expand throughout the remaining sessions of the Preparatory Committee and would determine much of the success of the Rome Diplomatic Conference. They made it possible to compile and even consolidate a variety of proposals on a particular subject. The use of the ILC draft as a template helped to keep the different elements in relationship to each other, even as that draft began to change from revisions and new proposals. As a result, the first two working groups had some success in compiling and rationalizing proposals. To facilitate the discussions and include the increasing number of proposals, delegations agreed to compile all proposals, sometimes overdetailed and contradictory, for each relevant article of the draft statute. The names of the authors of the proposals were omitted in order to reduce references to specific national systems. In 1996 during an intersessional meeting in Syracuse, Italy, delegations managed to shorten and simplify the compilation. The new draft was accepted at the next Preparatory Committee session as the new basis for negotiations. “For the first time delegates showed their sense of urgency and spirit of compromise”.26 The second session reached what was later recognized as the high point in competition between proponents of civil and common law approaches. Although the ILC draft was very much inspired by most common law standards, it became clear very early in the process that the Statute would not duplicate one specific legal system. Several civil law countries, championed by France, believed that the ad hoc tribunals for the former Yugoslavia and Rwanda had been far too based on common law, both in substance and procedures. France concluded from the first session that the Preparatory Committee negotiations were headed in the same direction. For the second session, it produced a 25 See Christopher Keith Hall, “The First Two Sessions of the Preparatory Committee on the Establishment of an International Criminal Court,” American Journal of International Law 91, no. 1 (1997), 177. 26 Co-chair Kim stressed that negotiators had only three days to finalize the text and urged them to work with a sense of urgency and the spirit of compromise during the third session of the Preparatory Commission.

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complete version of an international criminal court statute. This voluminous document contained roughly 154 articles, which based the structure, jurisdiction, and jurisprudence of an international criminal court on the principles of civil law. Although the fruit of France’s remarkable effort could obviously not be adopted as it was, the working group technique made it possible to take pieces of it into compilations and consolidations. During intersessional work conducted in Syracuse, Italy, delegations managed to shorten and simplify the compilation. The new draft was accepted at the following PrepCom session as the new basis for negotiations.27 The introduction of this statute influenced by civil law also initiated an ongoing discussion of civil law and common law perspectives on various issues. This prompted a fervent request by Chairman Bos to find ways to combine these perspectives into a statute containing the best features of both systems. This entreaty found enough support from a number of states so that the negotiations thereafter tended to take and combine from both common and civil law those elements that would best serve the Court. Although this practice did not entirely resolve differences in the negotiations between proponents of the diverse traditions, it did produce innovations, which helped the Court to adapt to its unique role. For example, trial judges at the Court are able to take a more active role in managing  trials than in common law, and yet still not as much as civil law would permit. Two important areas of general agreement emerged in this second session. Most delegates wanted the International Criminal Court to be created through a treaty. They believed that this would be the quickest way to get the Court up and running. Since this would establish the Court as an independent international organization, which would still require close cooperation with the United Nations, there was also very wide support for an agreement between the two institutions defining their relationship. The first two PrepCom sessions also developed a wide acceptance of the presence and participation of nongovernmental organizations and appreciation for the wide range of expert materials, which they provided. The sessions also saw the full appearance of a like-minded group of states and the beginning of its strong influence on the development and content of the negotiations.28 They also marked the beginning of the development

27 Draft Statute of the International Criminal Court: Working Paper. Submitted by France, UN Doc. A/AC.249/L.3 (6 August 1996). 28 See Chapter 3, “The Like-Minded Group’s Partnership with NGOs”, infra.



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and importance of the relationship between civil society and the LikeMinded Group.29 The chairman consulted many delegations on the Committee’s report to the General Assembly through the Sixth Committee.30 Its draft report was adopted by the Committee with little change, and its central recommendation was that the UN General Assembly should renew the mandate of the Committee with the authorization of three or four more sessions for a total of up to nine weeks. It was decided that its work should end by April 1998, and it should use open-ended working groups to produce a draft of consolidated text for the Rome Diplomatic Conference. The Committee informed the General Assembly of its belief that it would be realistic to hold the Conference in 1998. 3. Third and Fourth Sessions (11–21 February, 4–15 August 1997) In 1996 the General Assembly resolution adopted the recommendations and proposals of the Preparatory Committee. The resolution also decided that the Diplomatic Conference would indeed be held in 1998, that it would be scheduled to open in Rome on 15 June 1998, and that it would last for five weeks. With this mandate, the Preparatory Committee held its third and fourth sessions in 1997 from 11 to 21 February and from 4 to 15 August.31 The Committee had ended its 1996 sessions with a huge compilation of more than three hundred amendments and revisions to the text of the ILC draft. At the opening of its third session, the PrepCom aimed to convert this raw compilation into an organized consolidated text suitable for the Rome Diplomatic Conference. It decided to work through a combination of open working groups and informal, often closed groups for drafting. The Committee met briefly in a closed session to consider the role and access of NGOs and decided that plenary, working groups, and informal groups would be open to them. By adopting and tailoring existing texts, the respective working groups and the Committee were able to adopt consolidated texts on genocide and crimes against humanity. The Statute’s definition of genocide would be taken from the definition specified in the UN Genocide Convention. 29 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN General Assembly, 51st Session, Official Records, Supplement No. 22A, Vol. 2, UN Doc A/51/22 (1996). See also Christopher Keith Hall, “The Third and Fourth Sessions of the Preparatory Committee on the Establishment of an International Criminal Court,” American Journal of International Law 92, no. 1 (1998), 124. 30 Ibid. 31 Ibid.

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For the crimes against humanity, by contrast, there was no single adopted convention to draw on, so the Committee had turned to a variety of sources, namely the Draft Code of Crimes against Peace and Security of Mankind, the Nuremberg Charter, and the Statutes of the ad hoc tribunals for Yugoslavia and Rwanda. In what was beginning to be a pattern, general agreement on the specific categories of crimes came relatively easily, but differences remained wide on definitions, scope, and limits on jurisdiction. An encouraging and fundamental development was the support from almost all delegations for the application of the Statute to all persons without discrimination, regardless of their rank or official position. This was an important affirmation of the fundamental purpose and international motive for an international criminal court: a total end to impunity for atrocities and the imposition of universal accountability for them. Even when it was not possible to eliminate disagreements, several of the working groups were able to reduce compilations to consolidated texts that were apt to promote agreement and more focused than the previous indiscriminate compilations. The Working Group on General Principles of Law was able to reduce twenty-nine pages of proposals to a consolidated text of more than half of what would comprise the final articles in the Statute. The Working Group on Procedural Matters reduced one hundred pages of compilation to a twenty-four-page consolidated draft text. Although even in the absence of full agreement it had been possible to achieve consolidated text on many of the core crimes, it began to become apparent that a number of issues unfortunately would not be resolved until the Rome Diplomatic Conference itself. These included aspects of war crimes, the role of the Security Council, complementarity, the powers of the Prosecutor, and the scope and exercise of jurisdiction. Nonetheless, even on these questions, the Committee was still making progress by creating texts that would be much more manageable for the Rome Diplomatic Conference because of their clear presentation of choices, options on disagreed provisions, and the placement of these within the overall text of a draft statute. Preparations for the structure and organization of the hoped-for Rome Statute also began in this session. Every multilateral treaty has a ‘final clause’, which covers aspects of how the treaty is to enter into force. The Secretariat produced a draft of this clause on its own initiative; the draft clause included the number of ratifications by nations that would be needed to adopt the Statute and also provided that ratifications must not contain reservations by governments about their obligations under it.



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As the fourth session ended, many participants and observers felt that they had reached a psychological tipping point. There was a strong sense of an exciting enterprise amounting to an adventure for many. The certainty of the diplomatic conference and the extensive effort already invested made the International Criminal Court seem likely and produced a dedication to making the Rome Diplomatic Conference a success. The need to justify the creation of the Court had almost entirely dwindled away, as the Court had become accepted as an increasingly urgent goal. Since working groups were not required to make formal speeches or take committed positions, governments could experiment in them with different ways of dealing with an issue or problem. Governments were now consolidating and creating texts, sometimes agreeing on them, rather than reacting to proposals from the Chairman. The emergence of consolidated texts and the commitment to achieve them meant that governments were increasingly unwilling to appear obstructive or recalcitrant. Disagreements became more precise and more clearly based on important national interests and considered positions. All of these factors were strengthened by the growing expertise among participants from their lengthening experience in the work of the Committee and from the contributions and support of civil society.32 4. Fifth Session (1–12 December 1997) Nonetheless, the fifth session of the Committee was a disappointment, which created alarm among both its participants and its leadership.33 The work of consolidation continued with little agreement on outstanding issues. This happened mostly because the working groups in this session were addressing some of the most difficult and contentious issues. These included criminal responsibility, complementarity, jurisdiction, the definition of crimes, international cooperation, and penalties. In closing the session, the Chairman told the Committee that its members had worked very hard to make progress. He commended them for their positive commitment to completing the Statute despite the stress of this work. Nonetheless, this work had shown how complicated many of the remaining issues were and demonstrated more generally the importance of creating the Court. He said that there was still much to be accomplished. 32 Ibid. 33 See Christopher Keith Hall, “The Fifth Session of the Preparatory Committee on the Establishment of an International Criminal Court,” American Journal of International Law 92, no. 2 (1998), 333.

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Bos announced that he would convene a meeting for the chairmen of the various working groups, leaders of the negotiations, co-ordinators, facilitators, and members of the Committee’s Bureau. The purpose would be to take the text in its present form and reorganize it in order to improve its cohesiveness. Bos had picked up the concerns of a number of delegations that if the draft remained in its present form, the diplomatic conference would have to be postponed. Although the draft had indeed progressed, the final structure was still buried or even nonexistent in many places. Debate on the draft was still so confusing and difficult that almost all participants agreed it would be impossible in the single remaining session to turn it into a document that the diplomatic conference could manage. An intersessional meeting was held in Zutphen, the Netherlands, from 19 to 30 January 1998. It included all of the officials of the Bureau and the coordinators and chairpersons of the working groups responsible for the different sections and topics in the statute. This small group with complete knowledge of the preceding negotiations was able to work rapidly through the existing text. It achieved extensive streamlining and a clearer organization. United Nations officials, working virtually overnight, produced a new draft with a complete Table of Contents with eleven parts containing articles numbered in sequence and individually titled. The meeting eliminated a great deal of repetition and established a rational order between the parts and articles.34 This kind of official intersessional meeting was unusual in UN negotiations of treaties. It could have been criticized and even blocked in organized opposition by states. The smooth agreement to it in the Preparatory Committee shows how deeply the momentum of the negotiations and the sense of common purpose in them had taken hold.35

34 Before the March/April session of the Preparatory Committee, Chairman Bos circulated the draft statute from Zutphen before its official publication to delegations under an informal note. See Adriaan Bos, “To Delegations to the Preparatory Committee on the Establishment of an International Criminal Court through United Nations Missions” (New York: 1998). See also: M. Cherif Bassiouni, “Observations Concerning the 1997–98 Preparatory Committee’s Work,” in M. Cherif Bassiouni, ed., The International Criminal Court: Observations and Issues Before the 1997–98 Preparatory Committee; and Administrative and Financial Implications, 13 bis Nouvelles Études Pénales (Pau, France: Association Internationale de Droit Penal, 1997; Chicago: De Paul University Press, 1997). 35 Ibid. Additional observations provided by participants directly interviewed by the authors.



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5. Sixth Session (16 March–3 April 1998) The sixth and final session of the Preparatory Committee met from 16 March to 3 April 1998. While it was underway, the United States Department of Defense gave hostile briefings on 31 March and 1 April to roughly one hundred foreign attachés from embassies in Washington. In these briefings, and in a three-page memorandum distributed in them, the Pentagon explained its fears that the Court would be used against the United States and its military personnel and would not recognize the special military activities and responsibilities of the United States.36 It complained about an independent Prosecutor with discretion to start his own investigations and claimed that there was support by some delegations of definitions of war crimes that were too broad and vague. It urged the militaries represented to consider their own vulnerabilities to misuse of the Court. The leaders of the American armed services and of the Department of Defense had, it appeared, finally realized that the work of the Preparatory Committee could well lead to the kind of court they rejected. Their conclusion was that this was happening because the senior military officials and defense ministries of other states had not been sufficiently included in their own respective government’s negotiations during the PrepCom and that they needed to be warned accordingly. The briefings had a very mixed effect. Some participants indeed took the warning seriously and gave the alarm to their superiors back in their capitals. Others were surprised that the Pentagon had finally woken up to what was going on in the Preparatory Committee only when the latter’s work was almost finished. These and others were also aware that their governments had established positions on the creation of the ICC and that civilians were firmly in charge of their delegations. These attachés therefore felt that they were the wrong targets for this campaign. At the same time as the briefings, a team of senior Defense officials traveled to London, Paris, Brussels, Rome, and Bonn to make similar arguments to senior military levels in those countries. These Defense officials tried to describe their efforts as “awareness raising” rather than lobbying.37 However, to most participants, the intensity in the explanations of why this was important to the United States made it clear that this was an effort

36 Eric Schmitt, “Pentagon Battles Plans for War Crime Tribunal”, The New York Times, 14 April 1998. Online: www.nytimes.com/1998/04/14/world/pentagon-battles-plans-for -international-war-crimes-tribunal.html. 37 Ibid.

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to try to change the positions of countries and the general direction of the negotiations. Moreover, in what was becoming a pattern in the responses of Washington to events in the negotiations, it was clear from the mixed reactions to these attempts that they were both ill-conceived and too late. They betrayed an incomplete understanding of what had been happening in Sixth Committee sessions and especially of the reality that, by this final session of the Preparatory Committee, the issues of concern to the United States were supported by far too many countries and had been discussed too thoroughly for the negotiations on them to go back to the beginning. Coinciding with the sixth session of the PrepCom, a speech by President Clinton in Rwanda pledging the United States to work to create an international criminal court enraged Jesse Helms, the Chairman of the Senate Foreign Relations Committee. Helms sent a public letter to Secretary of State Madeleine Albright stating his vehement opposition to an international criminal court and threatening that any proposal for one not controlled by the Security Council would be “dead on arrival” in the Senate.38 This statement, taken together with the presence on the U.S. delegation of representatives sent by Helms, made many delegations wonder whether this was in fact the true position of the United States. By this time, nongovernmental organizations and countries able to follow events in Washington closely had learned that that there was no system in Washington for making policy on the negotiations; no point person was therefore responsible for such a system, and in these circumstances, the preferences of the Department of Defense automatically prevailed. Thus, in negotiating nuanced compromises on the jurisdictional issues of most concern to the Defense Department, David Scheffer, head of the U.S. delegation, had to intuit what it would find acceptable. This situation explained why the behavior and positions of the United States during the negotiations seemed often to them, in the words of one, “inconsistent and intermittent.”39 However, most participants in the negotiations did not have this ability to investigate Washington for themselves, and therefore either did not believe this explanation or indulged in sensational speculation and conspiracy theories. The work of the sixth session took place in several different ways. There were open working groups to discuss issues that had carried over from previous sessions. However, there were numerous closed meetings for the 38 Ibid. 39 Interviews with Zeid Ra’ad Zeid Al-Hussein and Sabelo Sivuyile Maqungo.



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rest of its work. NGOs, for example, could not attend these. Small delegations were frustrated by their inability to cover more than a few simultaneous meetings. This session made substantial progress on a number of issues. It improved the definitions of crimes and managed to achieve consensus on a complete section regarding the creation of the ICC. The most important feature of this was the complete agreement that the Court should be established by treaty. A new and almost entirely agreed section created the Court’s governing body, which would be an Assembly of State Parties roughly comparable to the governing bodies of other international organizations. Most issues concerning the law that the Court could apply in its judicial proceedings were also agreed upon. A hierarchy of sources of law was established beginning with the Statute itself, although some of the gaps remained to be filled. Several actions demonstrated the deepening cooperation between governments and nongovernmental organizations. The International Committee of the Red Cross, the Children’s Caucus, and several other NGOs consulted with Italy, Switzerland, and the United Kingdom to trim a combination of several options down into a single one concerning the recruitment of child soldiers. The same group of NGOs worked with Belgium, Portugal, and the United States to achieve a French proposal that the prosecution include experts on sexual and gender violence and violence against children. VIII. The Draft Text for Rome The draft statute, which the Preparatory Committee sent to Rome, was 173 pages in length; it contained 116 articles with 1300 brackets containing instances of disagreed language, optional provisions, and alternative word choices. This presented the diplomatic conference with a serious challenge in organizing its work.40 In response, it adopted and expanded the approach of the Ad Hoc Committee and the Preparatory Committee in breaking down the text into many pieces to be dealt with by a variety of working groups, informal meetings, and consultations. In the end, these numerous brackets proved to be somewhat less daunting than they appeared because agreement on one option often eliminated several brackets containing alternative options. 40 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Official Records, UN Doc A/CONF.183/ 2/Add. 1 (14 April 1998).

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Some of the disagreed issues were to take on an importance in Rome that could not have been anticipated at the end of the Preparatory Committee. A prime example of this was the provisions of the rules for the Conference on voting. Fortunately, these were settled in informal consultations just before the Rome Diplomatic Conference and were to be adopted there without debate. They were thus ready for their important role on the last day of the Conference. It took until the end of April to have this text translated from English into the other languages of the United Nations. This gave governments only six weeks to receive the text and circulate it through their respective bureaucracies. There has been much speculation about whether this short length of time was responsible for the lack of information and background on the Statute displayed by many of the delegations in the opening weeks of the Rome Diplomatic Conference. It clearly was one of the important reasons for this weakness in delegations. Another reason for this is likely a result of the tendency for governments to send higher-level officials to major diplomatic conferences when these individuals usually have not participated in the preparations leading up to the conferences. The imminence of the Rome Diplomatic Conference also gave short notice to several states with small or overburdened Ministries of Foreign Affairs; these countries also had difficulties coordinating their respective Ministries of Justice and Defense and were thus unable to quickly address the need for their foreign policies to make room to accommodate the advent of the International Court. From 6 to 9 May 1998, at a meeting convened in Courmayeur, Italy, twenty-seven designated elected officers of the Rome Diplomatic Conference identified an initial, broadly defined strategy to negotiate the Statute, part-by-part, issue-by-issue.41 Participants determined which issues would most likely prompt major debate and difficulties, and then earmarked them to be dealt with mainly through informal negotiations. They determined that Part 2 of the Statute, which contained core political issues, would be addressed both informally and in the main negotiating body, the Committee of the Whole. Their meeting revealed the concern of the leaders of the Conference that they come up with packages on these core issues as soon as feasible. Many at the Conference believed that 41 The meeting in Courmayeur took place roughly a month after the last Preparatory Committee meeting concluded on 3 April 1998. The newly nominated Bureau of the Diplomatic Conference and the PrepCom Bureau met there to prepare for the Rome Diplomatic Conference.



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countries would not lay their cards on the table without knowing how these critical questions would interrelate. As far as other issues were concerned, discretion was left to the chairpersons of respective working groups to decide whether they would convene informal meetings on specific issues or articles and when these meetings would take place.42 The roles and contributions of the main actors at the Rome Diplomatic Conference tended to correspond with what had occurred at Preparatory Committee meetings. Trends that appeared at the Preparatory Committee were generally confirmed and strengthened in Rome with the help of the key government officials, leaders, and groups, who had been in the Preparatory Committee. Participants frequently describe the strong communality of the ICC negotiations enthusiastically as an important and unusual personal and professional experience. Oddly, however, other accounts and analyses often slight it. It has been called a culture or a bubble, or simply a shared psychology. There is general agreement among those commenting that at its center were shame, frustration, and disgust at the failure of the international community to stop loathsome current atrocities no society should tolerate. Surprise at unexpected progress recurred throughout the negotiations. The special organization and working methods of the Preparatory Committee, the extensive use of unofficial intersessional meetings in which all actors including NGOs were on an equal footing, and finally, the continuity of the leadership of the Committee, of the United Nations staff, of NGO representatives, and of many members of the delegations also promoted a strong and intense communal feeling. This feeling may have integrated and deepened as many of these persons and groups became ever more certain that they were part of a shared historic campaign whose success became a personal commitment and a part of their private lives. The intensity and pressure of the events, the deadlines, and the setting at the Rome Diplomatic Conference intensified this sense of common effect and purpose, which turned out to be essential to its successful outcome. Every successful episode of legislation requires compromise. Compro­ mises on many levels range from general ones on large concepts, purposes, interests, and systems to smaller ones on very detailed and limited 42 Text reprinted with permission from: Fanny Benedetti and John L. Washburn, “Drafting the International Criminal Court Treaty,” Global Governance 5, no. 1 (2008), 28. For a detailed description of the organization of the work of the Conference, see UN Doc. A/ CONF. 183/3 (12 May 1998).

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technical questions and points of drafting. Small compromises often allow for the possibility of larger ones to be made later. The success of the Rome Diplomatic Conference was the result of many smaller, detailed compromises that finally managed to sustain major compromises on intensely stubborn political questions, such as jurisdiction and admissibility, which were included in the final package text adopted on the last day of the Conference. Compromises in multilateral negotiation can be even more complex and difficult than those in domestic legislatures. Negotiations to create a treaty do not enjoy the relatively permanent parties and political alignments in national parliaments. Such international negotiations will have  some long-standing groupings drawn from the United Nations or another international organization that is sponsoring them. These associations include countries from a particular geographic region or with particular cultural or economic interests in common. However, just as important and influential in treaty negotiations are temporary groups, caucuses, and individual powerful countries operating on their own or in very informal groups. The structure and interaction of working groups, facilitators, ‘focal points’, and individual or small group discussions by Bureau members were devised and refined by the Chairmen of the Preparatory Committee and of the Rome Diplomatic Conference to both channel and ease the making of compromises.43 Nonetheless, the final fundamental compromises in Rome on jurisdiction and admissibility had to be achieved through a combination of direct debates and national statements in the plenary of the Committee of the Whole, together with very small meetings  and interchanges with individual countries; the Bureau conducted these meetings and often only one or two of its officials were involved in the process. The important role of the working groups and individual negotiating leaders to achieving compromises is clear in the progress toward the final form of some fundamental aspects of the Statute. One example of this was the competing claims of national, regional, and religious legal systems. In plenary statements, nations insisted upon arguing the superior merits of their own respective systems up until the Rome Diplomatic Conference; each nation involved in the debate demanded that important parts of the Statute be based on their policies alone. However, participants in the 43 In UN jargon, ‘focal points’ refer to persons rather than places.



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working groups and other focused negotiating efforts soon began to prevail by opting to choose from different systems and legal experiences to select the diverse answers and practices that would best promote the effectiveness of the Court. Various figures of speech have been suggested to describe this practice and its results. However, although the origins of many elements of the Statute and the Court can be discerned, for most observers, the outcome is neither a welding, nor a stew, nor a hybrid but rather an unusually careful blending. The requirements for the conduct of trials, for example, have harmoniously blended common law and civil law in addition to new, unique features. Another basic question, which demanded extensive compromise, was the relationship of the jurisprudence of the Rome Statute to the current general state of international law concerning its three core crimes of war crimes, crimes against humanity, and genocide. Should the Statute be taken as a codification or authoritative declaration of the international law on those crimes, whether ‘customary’ (the accumulated practice of nations) or ‘formal’ (in treaties and conventions)? Perhaps indicative of the current state of relevant international law at the time of its adoption, the Statute’s eventual compromise decision determined that it was by no means a necessarily authoritative declaration. As the Statute was to state expressly, it did not freeze or dictate the future development of that law. Fundamental compromise was also especially important in drafting the definition of crimes against humanity, which appears in Article 7 of Part 2 of the Rome Statute. Unlike the other core crimes, there was no formal treaty or convention on crimes against humanity from which negotiators could draw for modification or incorporation in the Statute. In particular, participants got into an extended dispute over how broad the definition of the individual crimes within this category should be. This was a particularly severe example of the problem also found elsewhere in the negotiations of how to modify, for the use of the court in trials of individuals, international law that had originally been created to regulate the behavior of nations. In the case of crimes against humanity, the problem was resolved by declaring that the crimes would have to be shown as resulting from a policy to conduct widespread or systematic attacks against civilians. Despite this progress, the debate on the role of the Security Council in the jurisdiction of the Court had reached an impasse. This debate was necessary because under the United Nations Charter, the Security Council has authority over members of the United Nations but not over international organizations. If the Court were to respond to Security Council actions,

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the Statute would have to instruct it so; otherwise, the Court could ignore them altogether. Moreover, the general question was more complicated than it might have appeared, as it was part of the larger issue of how cases could become eligible to taken up by the Court. In particular, how independent could the Court be in choosing these cases? Nations such as the United States had begun by insisting that in all circumstances the case must have the consent of the country where it occurred or of the state of which the accused was a citizen. Seeing that a great majority of countries would reject this approach, the same governments fell back on requiring that the Security Council must approve all cases going to the Court. They later further retreated to the stance that if a case were on the agenda of the Security Council, it would need to consent to court action on that case. There was wide disapproval as there is now of the Security Council as dysfunctional and unrepresentative. Many delegations were therefore unwilling to see the Council have any role whatsoever in the Court’s jurisdiction. This contested debate came down at this point to the question of whether the Security Council could ask the Court not to act on a case that was already on the Council’s agenda. The beginning formulation was that the Court could not act on such a case unless the Council gave permission. This formula received a testy reaction from many countries in the negotiations. It reduced the independence of the Court too much and politicized the progress of cases to it. The subservience it imposed on the Court was much greater than with the ad hoc tribunals for former Yugoslavia and Rwanda, which had been directly created by the Security Council. The debate had reached the point where it seemed to have a choice only between this approach and no role for the Security Council at all. At the same time, a considerable number of countries in a third group were concerned about the possibility of interference in peace settlement efforts authorized by the Security Council, and these countries were open to another approach. During moments of deadlock in the negotiations, there were occasionally instances when seemingly obvious ‘why didn’t I think of that?’ solutions appeared to present themselves almost miraculously. Despite appearances, these types of compromises often came from very creative, nonlinear thinking. In the case of the questions concerning the role of the Security Council, the deputy head of the Singapore delegation, Lionel Yee Woon Chin, proposed just such a compromise in the Preparatory Committee session in August 1996.



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Lionel Yee Woon Chin’s quiet expertise and well-informed hard work had attracted the favorable attention of his colleagues in the Preparatory Committee negotiations. This encouraged their serious consideration and acceptance of his proposed compromise. It also led to the Bureau’s selection of Yee as chairman of the Working Group on the Composition and Administration of the Court in the last session of the Preparatory Committee in 1998. He was an example of his government’s careful selection of promising students to be groomed for upper-level civil service positions. Government scholarships gave him law degrees from the University of Cambridge and New York University in 1998. He was a state counsel in the International Affairs Division of the Attorney General’s Chambers. His performance on Singapore’s delegation during the International Criminal Court negotiations in New York and Rome led to service as the legal adviser in Singapore’s Mission to the United Nations in New York. Deputy Head Yee proposed that the Security Council be able to ask the Court to defer action on any case. This request would have to be under the mandatory powers the Council enjoyed through Chapter VII of the United Nations Charter. Later in the Preparatory Committee sessions, Canada added the provision that the request could only be for twelve months at a time, renewable annually. Finally, the Rome Diplomatic Conference provided that the request would have to be in a formal resolution. This resolution could be defeated either by a veto from the P5 members of the Security Council, or by a vote in opposition by a majority of the members. Such a majority could be composed of the non–permanent members of the Council. This compromise was not as simple as it may have seemed. It gave those wary of the Security Council strict limitations on its action. For the five permanent members and others who wanted more control by the Council, its reach was extended to all cases that might potentially be tried by the Court. For the substantial group of diverse countries concerned that court cases might interfere with the search for peace settlements, the ICC judges would have to honor a request from the Security Council to stand back only in special circumstances and for a limited time. Commentators have frequently said that the struggle to achieve compromises in the negotiations for the Rome Statute was a search for common ground. In fact it was the strong sense at the beginning of the negotiations of an existing common ground that encouraged the successful building of compromises on it.

CHAPTER THREE

THE MAIN ACTORS OF THE NEGOTIATIONS The main actors in the negotiations, introduced here and described in detail later, were United Nations staff; governments, acting individually and in groups; the officials of the negotiating bodies known as the Bureau; and NGOs, acting individually and in groups. All of these actors were present in one form or another throughout the negotiations. I. The United Nations Secretariat Through its deliberative bodies, its Secretariat and Secretary-General, and its important place in the worldwide company of persons and institutions dedicated to international law, the United Nations was a principal actor in negotiations for the ICC. It was also the setting and space where all the main players in the negotiations became a community dedicated to the negotiations. The culture of this community, which became very intense and forceful, emerged from the norms, practices, rules, styles, and protocols evolved and practiced by governments, NGO representatives, and UN officials in their work with each other and in the offices and bodies of the United Nations since 1945. The community and its culture as well as the rules, procedures, and structure of the negotiations adapted from those of the General Assembly in their interaction, were to reinforce and implement the sense of common purpose that sustained the negotiations throughout. The various roles of the United Nations taken together meant that, while the negotiations could not have succeeded without the involvement of each of the principal actors, without the United Nations, they could not have existed in the form that made them successful. Apart from its intergovernmental bodies, the other and equally important agent of the role of the United Nations as a principal actor in the negotiations was its Secretariat. The Secretariat had always been important in support of the International Law Commission and in the General Assembly’s deliberations on the possibility of an international criminal court. The negotiations for the ICC were to create a new international organization, which would be in a formal relationship with the United Nations and would need its cooperation. Moreover, the Court’s eventual

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Rome Statute would contain a wide range of extremely complicated international legal issues and concepts. Their successful negotiation required the support of an objective international body of expertise, which only the United Nations could provide through its Office of Legal Affairs. Accordingly, the secretary-general designated the Legal Counsel and Under-Secretary-General for Legal Affairs as his representative to the ICC negotiations, and the Office of Legal Affairs as the unit of the Secretariat to support them. This Office maintains the repository of almost all treaties concluded anywhere in the world since the United Nations began. The responsibility of the officials of its Codification Division for the repository naturally led, early in the history of United Nations, to a further mandate for the Codification Division to support both treaty making and, later, the general development of international law at the United Nations. Accordingly, the chief and staff of the Division became international law specialists and authorities in their own right and were recognized as such by international law scholars, experts, and practitioners. The Office of the Legal Adviser had responsibility for managing and organizing all negotiations concerning international legal issues at or authorized by the United Nations. This also meant that the Office had unusual and extensive experience and expertise in the conduct of extremely complicated international treaty negotiations involving both new jurisprudence and the creation of new international organizations. This responsibility included the regular meetings of the International Law Commission. The Commission had done the most recent drafting and analysis at the United Nations on an international criminal court. The Codification Division had supported the Commission in this work as its Secretariat. The Division therefore naturally organized and managed the Ad Hoc Committee and gave parliamentary and substantive advice to its officers as the representatives of the General Assembly and the secretarygeneral. Their effectiveness in these roles made it very clear to most participants and observers that the support of the Division would be essential to their success. Much of the international humanitarian law that the Rome Statute would modify for courtroom use, such as on genocide and crimes against humanity—increasingly known as international atrocity law—had been developed in United Nations meetings and committees managed by the Office of the Legal Counsel. This meant that an extensive body of existing treaty law for genocide and war crimes as well as a draft convention on crimes against humanity was already available.



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One of the major categories of international atrocity law to be included in the Court’s jurisprudence was that of crimes against humanity. As the ICC negotiations began, the International Law Commission had produced a highly developed and detailed draft convention on these crimes.1 Although crimes against humanity were not yet contained in a binding treaty, the draft convention had attained such wide international recognition that it was almost as useful for incorporation into the Rome Statute as the treaties on war crimes.2 These documents were convenient and authoritative sources for the definitions of atrocity crimes under customary international law, which the General Assembly required the negotiations to determine and include in the Rome Statute. Since most international atrocity law established standards for the behavior of states, a large and important part of this task was to turn these standards into definitions of crimes that ICC judges could use effectively in trials. As the Preparatory Committees struggled with this task, the Office of Legal Affairs became an indispensable source of expertise, not only regarding the content, but also for the legislative history and the operational use of international humanitarian law. Within the Office, the principal players on the ICC negotiations were the Legal Counsel himself, Hans Corell, and the director of the Codification Division, Roy Lee. Lee became the secretary to bureaus of the various sessions of the Preparatory Committee and later of the Rome Diplomatic Conference itself. Lee’s long service in the Office and the resources and history of his Division brought to the negotiations for the International Criminal Court a deep experience of conference management, skill, and the quiet multilateral diplomacy necessary to support the officers of a negotiating body in directing its work and achieving their objective. In addition he commanded globally recognized extensive expertise on international law. 1. Key Actors in the UN Secretariat Roy Lee had been a career international civil servant of the United Nations since 1967, when he joined its Division of Human Rights. In 1972 he became Secretary of the First Committee of the Third UN Conference of the Law of 1 Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission on its 48th session, UN General Assembly, Official Records, 51st Sess., UN Doc. A/CN.4L.532 (1996). 2 Herman von Hebel and Darryl Robinson, “Crimes within the Jurisdiction of the Court” in Roy Lee, ed., The Making of the Rome Statute, 91.

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the Sea. After earning a first degree in law from China, he received M.A. and Ph.D. degrees in Canada and the United Kingdom. Always a citizen of the People’s Republic of China, he had maintained good relations with its governments throughout his UN career, despite his total commitment to the United Nations. While he was promoted to increasingly high-level positions in the course of his career, Lee quietly used his connections internationally as well as those within the United Nations to support the development of international law teaching and training in his homeland. Lee’s devotion to the United Nations and his dedication to the development of international law were equally strong and mutually reinforcing. He believed that the United Nations was the best forum for the formation of international law both through customary practice and by formal treaty making. He saw in this function of the United Nations its best opportunity to shape and drive international behavior in ways that would lead to a greater and more powerful place for the values of the United Nations Charter in international life and relations. The ICC negotiations were for him the high point of a long, unusually wide-ranging, and productive career that would end in his retirement shortly after they were over. Although Roy Lee could be straightforward and even blunt in private discussions within the right company, in his professional roles he was discreet, subtle, and reserved. As secretary of the various negotiating bodies including the Rome Diplomatic Conference, Lee led both the logistical and administrative organization of these meetings and was the UN senior political and legal adviser to one of the main actors in the ICC negotiations, the Bureau. During meetings he sat on the podium with these officers but was just as often on the floor in vigorous conversation with government delegations and NGO representatives or behind the scenes directing the administration of the meeting. Career UN officials who share Lee’s long and intense commitment to the United Nations usually feel that they need to be careful in disclosing or drawing attention in their words and actions to the reality that the institution has its own objectives, interests, and needs. As they see it and most broadly, the United Nations must implement the values and achieve the purposes of the UN Charter including “conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.3 To this end, the objectives, interests, and 3 United Nations Charter, Preamble, (online): www.un.org/en/documents/charter/ preamble.shtml.



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needs are to ensure that the UN becomes, and is seen to become, ever more effective, viable, universal, and useful. UN officials generally believe this normally requires the United Nations to be evenhanded and impartial in its service to its members. Inevitably, these requirements for impartiality and universality can frequently conflict with the organization’s institutional interests, commitment to its values, and ultimate purposes. This dilemma can be especially difficult when its members are divided on an important issue wherein some of the most powerful are in the distinct minority. In the ICC negotiations, the UN’s compelling interests were to serve the Charter by achieving the long, dramatic, and unprecedented advance toward the international rule of law that a well-designed and impressively functioning court would represent. At the same time, the UN could not afford to appear biased in its management of the negotiations. Moreover, as the negotiations progressed, the permanent members of the Security Council, and a few other leading members especially important to the viability and strength of the United Nations, such as India, began to be in a dwindling minority. Accordingly, Lee had to balance delicately his discreet but successful service to UN interests with the wishes of the bureaus he served and both of these obligations with his relationships with government delegations and representatives of nongovernmental organizations. Lee’s superiors at the United Nations, however, felt much less constrained. Legal Counsel Hans Corell had been appointed to his post by the secretary-general and approved by the General Assembly, and he was, therefore, not a career official. His youth in Sweden included service as a merchant seaman, and later, he had been a judge and a senior civil servant. His deliberate and somewhat studied manner often led many to underestimate him. In fact he had a sharp and disciplined mind, profound knowledge of international law, and a real talent for skillfully navigating the bureaucracy and internal politics of the United Nations. Corell had long been an advocate of an international criminal court and a treaty to establish one. He intimated in private conversations from the beginning that he wanted the International Criminal Court to be achieved in the form supported by the rapidly growing number of governments in the negotiations shortly to become a majority. As the negotiations continued, Corell became more and more outspoken on these views in his public speeches and statements. He emphatically repeated that the Court would be instrumental in helping to carry out the UN’s responsibility to execute the humane values in its Charter as well as its mandate to refine, create, and implement international law.

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Moreover, he and Lee strongly shared the general feeling with supporters of the Court that impunity for the ultimate perpetrators of massive atrocity crimes must end and that both the UN and the international community at large had been ineffective in dealing with these crimes and their contextual situations. A permanent international criminal court could apply law to these crimes through trials of individuals in a way that would be more effective and consistent, although more limited, than past and current political methods. More personally, as men with a lifelong professional dedication to the worldwide rule of law, both Corell and Lee felt intensely that the achievement of the International Criminal Court as a long, innovative, and profoundly significant advance in international law would crown their careers.4 Secretary-General Kofi Annan became even more open and explicit than Corell in his encouragement of the negotiations and his expressions of total commitment to this vision of the ICC. He knew very well that a significant number of states and permanent members of the Security Council initially rejected, and the United States opposed throughout, an independent international criminal court not under the control of the Security Council and with a Prosecutor able to act on his or her own initiative. Nonetheless, in speeches from his taking office in 1996 through 1998, he consistently urged the negotiators and the international community for a kind of international criminal court that would inevitably have these features.5 4 Roy Lee believed that the lack of legislative and negotiation histories of UN treaties had compounded the difficulties of their application and implementation. This occurred because treaty negotiations are usually conducted in informal or restricted meetings and typically only the results are reported without an explanation as to how these results were reached. Lee felt that the negotiation of the Rome Statute was no exception. He invited the chairs, facilitators, and coordinators to contribute a paper recollecting the processes employed, issues considered, and agreements reached on the subject matters they had handled during their negotiations. He compiled and edited the results of their contributions into two publications: The International Criminal Court: The Making of the Rome Statute (The Hague: Kluwer Law International, 1999) and The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational Publishers, 2001). 5 Kofi Annan, speech delivered to the American Bar Association Conference on the Fiftieth Anniversary of the UN Declaration on Human Rights and of the Convention on the Prevention of the Crime of Genocide, UN press release SG/SM/6484, New York, 12 March 1998. The documentation of the Rome Diplomatic Conference consists of verbatim records of plenary sessions, statements of delegations circulated by themselves, conference room and working papers, and the various versions of the packages and of texts as they went to and from the Drafting Committee. Much of the listed material is made available by the UN online at sites linked to its main web page: http://www.un.org. UN documents for and during the Conference are in the series UN Doc A/CONF./183. Most of the main documents are



the main actors of the negotiations63 2. Kofi Annan Annan had been a career official of the United Nations since 1965. The son of a tribal chief in Ghana and educated in the United States, he found in the United Nations an identity appropriate to his background. It gave him the opportunity to make a rewarding use of his remarkable personal qualities, his high intelligence and political skills, and his extensive knowledge of international relations and issues. Although he maintained in his work a balanced approach to international problems and challenges, he took a special interest in Africa and in developing countries generally. Like many UN officials of his caliber, including Roy Lee and Hans Corell, Annan had from an early stage adopted the values and perspectives of the United Nations Charter as specific expressions of his personal idealism and world vision.  In 1993 and 1994, at the time of the genocide in Rwanda, Annan was undersecretary-general for Peacekeeping Affairs. In the spring of 1994, he bore major responsibility for the failure of the United Nations to respond to frantic appeals from General Roméo Dallaire, commander of a UN peacekeeping force in Rwanda, to permit offensive action against the mounting inter-tribal genocide. Annan frankly accepted this responsibility in public and internal papers, and in discussions about the gross inadequacies of the United Nations in handling the Rwandan tragedy. In 1999 toward the middle of his first term as SecretaryGeneral, he collaborated with the Security Council to convene an independent inquiry into the actions of the United Nations in the Rwandan situation. He ensured that the report of this inquiry contained an accurate account of his own failings in this situation, and he discussed these further in his accompanying letter conveying the report to the Security Council.6 Annan was also a close observer of the problems, limitations, and misjudgments of the UN and the international community in Bosnia-Herzegovina, Somalia, and Haiti.  Annan’s anguish over Rwanda never left him and was joined by his growing painful and angry frustration over atrocity crimes, particularly genocide, taking place worldwide and especially in Africa. He was acutely aware by experience of the limitations and tendency toward paralysis of the Security Council in the face of these crimes and the conflicts that produce them. This made him particularly, although at first quietly, sympathetic to the demand by many in the negotiations that the International Criminal Court should not be subject to control or excessive interference by the Council.

also available through the NGO Coalition for an International Criminal Court (online) at: http://www.igc.apc.org/icc. The organization of work for the Conference is UN Doc A/ CONF. 183/3, 12 May 1998. The final Rome Statute is UN Doc A/CONF.183/9, 17 July 1998. 6 Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc. S/1999/1257 (16 December 1999).

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 He also saw in the drive to achieve the Court a potential major success for the United Nations. The creation of an international criminal court would demonstrate the UN’s relevance and its ability to produce new and innovative solutions to long-standing, painful, and destructive problems in complex conflicts and their consequences. This goal was especially important to Annan at a time when it seemed that the UN was on the margins of conflicts such as those of Kosovo and Iraq. Naturally, he also saw this success as an important, lasting contribution from his own term in office. Since the International Criminal Court would be a permanent institution, his legacy would also be permanent and would find continuing expression in the unending work of the Court. These emotions, experiences, and hopes found powerful expression in candid and even confrontational speeches in specific support not only of an international court but also of a particular kind of independent and powerful court. These speeches made a striking departure from the political caution and discretion that he and other secretaries-general had normally exercised.7 The Secretary-General’s impact on the negotiations, destined to be powerful because of his position, was heightened, expanded, and continuous. This was because in his moving, straightforward, and committed speeches as well as in his private diplomacy, he took sides in the debate during the negotiations on the nature, powers, and independence of the new Court.8

II. Governments and their Delegations Individual governments influenced the negotiations beyond their single voices because of their general standing in international affairs, their reputations and respect at the United Nations, and the expertise and skills of their representatives. In addition to this, the Bureau of the negotiating committees and the Rome Diplomatic Conference included both the elected officers, responsible for all of the negotations, and the focal points, facilitators, and informal group chairpersons, whom the officers appointed; all of these persons came from governments.9 7 UN General Assembly, Official Records, Vol. II, 61–65, paras. 3–12. 8 See M. Cherif Bassiouni, The Statute of the International Criminal Court: A Documentary History (Ardsley, NY: Transnational Press, 1998); Kofi A. Annan, Renewal Amid Transition: Annual Report of the Work of the Organization (New York: United Nations Publications, 1997), 52–3; Kofi A. Annan, Interventions: A Life in Peace and War (New York: Penguin, 2012), 147–155; and “Annan Faults U.S. and 9 Other Lands in Debate on Court,” The New York Times (14 July 1998), A7. 9 The elected officials served full-time and only in their positions during the sessions. The appointed individuals remained on their national delegations when not carrying out their Bureau assignments.



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Compared to government delegates in other simultaneous United Nations meetings, national representatives in the ICC negotiation were generally younger and more specialized. Many were legal advisers, or represented the offices of legal advisers, in national missions to the United Nations or legal departments of the Ministries of Foreign Affairs or Justice in their respective capitals. Also, by comparison with delegates in other intergovernmental meetings, an unusual number of those involved were women. There was a more relaxed and open personal style than usual at the United Nations. Participants appeared to be more comfortable in intersessional meetings and toward nongovernmental organizations. Some delegations from the very beginning included academic or NGO experts, and this practice of inclusion spread both during the Preparatory Committee sessions and throughout the Rome Diplomatic Conference.10 Government delegations varied a great deal in the nature of their instructions and their relations with their capitals. Major countries, except for the United States, usually had overall general guidance and detailed instructions on issues of particular national interest. Assigned task forces of officials able to respond to abrupt situations and changing circumstances usually backed these delegations to provide further support. Other countries put their primary ICC expert on the delegation, and these experts largely wrote their own instructions, with the exception of a few specific questions. Leading countries in Africa and Latin America developed their instructions through cabinet or interministerial memoranda or decisions.11 Instructions were often and greatly influenced by national experience of recent internal or international conflict and also by painful recollections of historical struggle. For example, Iran was interested in the possibility of bringing Saddam Hussein before an international criminal court for his actions in the recent Iran-Iraq War. A major reason for the interest of South Africa in an international criminal court was its long struggle with apartheid. Latin American countries remembered coups and dictatorships before the beginning of their present democratization. Countries of the European Union recalled the recent failure to stop the atrocities in

10 In another NGO special service, No Peace Without Justice/Transnational Radical Party provided each delegation with a plastic kit containing several items, including a small radio for delegates to listen to Conference proceedings live on Radio Radicale 2. See Leila Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Ardsley, NY: Transnational Publishers, 2002). 11 Interviews with Roy Lee, María del Soccoro Flores Liera, and Sabelo Sivuyile Maqungo.

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the former Yugoslavia. They also had a long memory of the Nuremberg trials, the Holocaust, and its enduring consequences. Almost all government delegations participated in various groupings. Many of these groups had either grown up and become traditional in the practice of United Nations meetings or had long been recognized in them, such as the Non-Aligned Movement (NAM) and the Group of 77 (G-77). Most of these traditional groups were regional; over time, some of these grew so large, unwieldy, and diverse that they served only to nominate candidates for officer positions on committees or high-level positions in the United Nations Secretariat. In the decade before the ICC negotiations, sub-regional groups, with various degrees of relations with the traditional groups, had become influential on certain issues at the UN. Particularly important in fashioning agreements on difficult questions in the ICC negotiations were the Economic Community of West African States (ECOWAS) and the South African Development Community (SADC). Formally constituted regionwide organizations of states, such as the European Union and the Organization of African Unity, had special standing and their own representatives and missions at the United Nations, and therefore in the ICC negotiations. The five permanent members of the UN Security Council constituted a special kind of informal interest group often on the minds of other delegations despite the P5’s lack of official standing. An important part of the story of the negotiations is the gradual loosening of this group’s unity from changes in domestic politics and the pull of other groupings, especially the European Union. The P5 were never as a group determined to stop the negotiations. The P5 had just created the two ad hoc tribunals in 1993 and 1994, and it most likely seemed impossible to manifest strong opposition to the ICC project in these circumstances. The P5’s lack of the unity needed to block the ICC negotiations process provided enough leeway for the Like-Minded Group and NGOs to move forward.12 Of the different groups, caucuses, and informal task forces that grew out of the negotiations, the Like-Minded Group (LMG) was influential 12 Interview with Gilbert Bitti and María del Soccoro Flores Liera; See also Philippe Kirsch and Darryl Robinson, “Reaching Agreement at the Rome Conference” in Antonio Cassese, Paolo Gaeta, and John R.W.D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary (New York: Oxford University Press, 2002), 165; and Philippe Kirsch and Valerie Oosterveld, “The International Criminal Court: Multilateral Diplomacy and the Adoption of the Rome Statute,” The Attaché Journal of International Affairs 5, no. 1 (2003), 7.



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from the outset, gained strength as time passed, and became uniquely powerful at the Rome Diplomatic Conference, especially in its closing days. Formalized in 1996, the LMG began as a caucus in the meetings of the Sixth Committee of the General Assembly in October 1994. During these meetings, the Sixth Committee reviewed the International Law Commission report on its Draft Statute for an International Criminal Court. The chairman of the Sixth Committee, Ambassador George O. Lamptey of Ghana, asked a facilitator to create a resolution on the ILC text and report. Some eight countries including Australia, Canada, Germany, New Zealand, and Norway negotiated a resolution that proposed revisions to the ILC text that the General Assembly would then adopt. The General Assembly understood that the majority of the Sixth Committee, if not a consensus, supported this resolution. The chair proposed this ‘Like-Minded resolution’ to the Sixth Committee in a meeting; nonetheless, the five permanent members of the Security Council persuaded the members of the Sixth Committee to defer the whole question of a diplomatic conference, originally proposed to take place immediately, to an ad hoc committee of the General Assembly. This maneuver so outraged Chairman Lamptey that he relinquished the chair to his deputy and spoke as the representative of Ghana in opposition. Ironically foreshadowing his action in the opposite direction on the last day of the Rome Diplomatic Conference, the representative of Norway, Rolf Fife, proposed ‘no action’ or ‘tabling’ on the Like-Minded Group resolution.13 The Permanent Five members’ resolution was then able to pass. In retrospect, most observers and certainly most of those in the international NGO coalition came to realize that deferring the question of the conference to an ad hoc committee was the best possible outcome. An immediate diplomatic conference would either have failed or produced a court of the kind the P5 wanted. The AHC session and the subsequent negotiations in the Preparatory Committee made it possible for some to gather forces, particularly the international NGO coalition and the LikeMinded Group, with which they could assert themselves in the creation of the Statute.

13 In meetings of sovereign states, a motion of no action or tabling means that one state sets aside a motion proposed by another. The latter is likely to take this action as a mark of disrespect—which is why it is sparingly used.

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Nongovernmental organizations were so important to the negotiations and their outcome that, in many accounts, their role and influence overshadow the actions and contributions of the other actors. Almost all NGOs belonged to the international nongovernmental organization known as the Coalition for the International Criminal Court. The skills, resources, and political astuteness of the CICC, and especially of its leadership, were extraordinary and almost certainly indispensable to the achievement of the Court. The CICC was particularly effective in its strategy and operations because it understood and responded thoughtfully to the roles and interactions of the other principal players. The emergence of the CICC as the most advanced and sophisticated organization thus far created collectively by civil society to influence and shape multilateral treaty making is an irresistibly compelling feature of the story of the Rome Statute, but only part of it.

1. Key NGO Actors of the Negotiations  Amnesty International Amnesty International’s legal adviser and head of delegation, Christopher Keith Hall, as of October 1994 intensely worked on the important decisions facing the UN General Assembly Sixth Committee regarding the ILC draft statute. He developed advocacy efforts toward NGOs, such as Human Rights Watch, to convince them to follow the Sixth Committee’s negotiations and to create the Coalition for the International Criminal Court, which was founded in February 1995. He also provided the most detailed legal commentaries on all aspects of the ICC treaty. Government delegations and NGOs alike used these commentaries to identify key issues and relevant arguments. Hall’s invaluable accounts of each Preparatory Committee session were published by the International Journal of American Law.  Amnesty, through its Legal Adviser’s expertise and personality, positioned itself in a technical assistance and expert advisory role. Its privileged relationship with members of government delegations helped build a very close and personal NGO–government relationship, from which other key members of the CICC and the CICC leadership greatly benefited.



the main actors of the negotiations69  Human Rights Watch (HRW) Led by Richard Dicker, a former civil rights attorney in New York, the Human Rights Watch delegation, including its executive director, Kenneth Roth, played a major role in the negotiations.  Juan Méndez, a well-known human rights defender in the Western hemisphere and former prisoner of conscience during the Argentinian dictatorship, was the General Counsel of Human Rights Watch at the outset of the ICC negotiations. He saw the significance of the emerging negotiations early on and alerted Richard Dicker to the importance of civil society’s prompt involvement in them. He advised Dicker to participate in the first NGO meeting held by the World Federalist Movement on 9 February 1995, in preparation for the April 1995 meeting of the Ad Hoc Committee.  Later, while attending debates at the Sixth Committee in the fall of 1995, it became clear to Dicker that there would be a big battle for the ICC, and a major struggle to proceed from the Ad Hoc Committee to the Preparatory Committee. Dicker, like many key actors of the ICC negotiations, had never been involved in treaty negotiations before.  Throughout the negotiations, HRW provided commentaries on jurisdictional issues of the Court. Through Dicker, the organization played a key advisory function to the Like-Minded Group. It also advocated at a high level through Roth’s punctual interventions. Finally, it played a major role in fostering sub-regional initiatives by like-minded states aimed at strengthening their common vision of a strong and independent court, especially in relation to the Southern African Development Community.

International Federation for Human Rights (FIDH) The International Federation for Human Rights played an important advocacy role through its worldwide network of member organizations. The Paris-based organization helped to create the French Coalition for the International Criminal Court (CFPI), and the outreach of both of these organizations to the French government helped to split the P5 group, which became a determining factor for the outcome of the negotiations. FIDH was represented during the negotiations by its president, Sidiki Kaba (Senegal), its vice president, Francisco Soberón (Peru), and its secretary-general, William Bourdon (France).

 The Women’s Caucus for Gender Justice in the ICC (Women’s Caucus) The creation of the Women’s Caucus for Gender Justice in the ICC was a derivative of a caucus present at the Fourth World Conference on Women in Beijing.

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The formation of these caucuses had become standing operating procedure for the international women’s movement. Members of groups in Beijing became members of the Women’s Caucus, and Rhonda Copelon, a lawyer affiliated with the City University of New York, was the legal adviser and main founder of the organization. The Women’s Caucus aimed primarily to educate people worldwide about crimes against women.  The Women’s Caucus brought representatives from developing country NGOs, which were generally not well represented in the CICC as a whole. The CICC’s leadership understood and appreciated this; however, in the early phase of the Women’s Caucus’ activity, there was considerable tension with other nongovernmental organizations. Many NGO actors felt that the Women’s Caucus’ objectives would dilute the key messages as well as human rights definitions and concepts.  Before 1997, women’s groups did not pay much attention to the ICC negotiations. Major world conferences on women’s rights in Beijing and Cairo had kept them very busy. Bill Pace, convener of the CICC, communicated with Rhonda Copelon about the need to have women’s presence in the emerging Coalition for the International Criminal Court. In Pace’s view, women’s groups represented an important constituency among international NGOs, and after two successful world conferences, they had a considerable capacity for outreach. The newly formed Women’s Caucus appeared at the Preparatory Committee meeting in February 1997, where they presented a paper that established their objectives and negotiating goals. At this stage, the women’s presence in the negotiations did not truly amount to a caucus. The problem of getting their objectives presented by a government delegation was addressed initially through Roger Clark, an academic expert embedded in the delegation of Samoa, who was willing to present a number of gender-focused proposals dealing with rape as a war crime and persecution as a gender crime.  After that Preparatory Committee, the women’s groups decided that a formal caucus was necessary. This decision was helped along by a grant from the MacArthur Foundation, which in turn wanted a caucus structure that could receive and use the gift in an organized way. The Women’s Caucus was therefore incorporated as an independent organization in New York State. Additional staff was recruited who were identified as people known for their previous international justice work, including in particular expert and experienced Alda Facio of Costa Rica. The Women’s Caucus for Gender Justice in the ICC was thus born and continued all the way through the end of the Rome Diplomatic Conference. It participated as a caucus in the full range of activities at the ICC negotiations, such as the meetings and sessions convened by the CICC. The Women’s Caucus developed membership in almost all countries participating in the negotiations from all regions of the world and



the main actors of the negotiations71 relayed to them information about legal and political matters relevant to the negotiations.  Women’s organizations and the individual women involved at the start of the ICC negotiations and later under the umbrella of the Women’s Caucus had to deal with skepticism. The Women’s Caucus had to demonstrate through its actions and its statements that its members had a place in the negotiations, and that their issues required attention. The Women’s Caucus was regularly criticized by other members of the NGO Coalition, who often times saw their sectoral interest to be at odds with what they considered to be the more central issues to the Court, such as jurisdiction or trigger mechanisms. In these cases, the Women’s Caucus was often portrayed as rigid, intrusive, and uncompromising. Many state delegates, including the Like-Minded Group, felt the lobbying techniques of the Women’s Caucus were at times too aggressive. Generally, however, both NGOs and government delegations largely came around from skepticism to acceptance of the organization in the course of the negotiations and acknowledgement of their immense contribution. In addition, the Women’s Caucus achieved a level of collaboration—and ultimately success—with several states like no other group in the CICC. These were, among others, Australia, Bosnia-Herzegovina, Canada, Costa Rica, Mexico, the Netherlands, South Africa, Sweden, and the United Kingdom.14

No Peace Without Justice (NPWJ) No Peace Without Justice emerged as a project of the Transnational Radical Party, an Italian nongovernmental organization led by Emma Bonino, with a focus on civil rights and individual liberties.  Emma Bonino, commissioner of Humanitarian Affairs at the European Union, confronted the major manmade crises of the 1990s and became convinced that humanitarian aid must go hand in hand with political action to ensure respect for humanitarian and human rights. Before NPWJ became a member of the CICC Steering Committee, it had focused on mobilizing public opinion around the establishment of the International Criminal Tribunal for the former Yugoslavia. The issue was of particular interest to Italian public opinion, in part because of the country’s geographical proximity to BosniaHerzegovina and Croatia. From its base in Italy, NPWJ developed a panEuropean presence.  Niccolò Figà-Talamanca, NPWJ’s talented lawyer, became the group’s political and legal adviser in 1998. He had been at the Yugoslav Tribunal in 1997 as a 14 Interview with Barbara Bedont.

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representative for the Lawyers Committee for Human Rights (LCHR). NPWJ felt it was necessary to help smaller delegations to follow the negotiations from start to finish, and one solution was to provide additional expert staff to these countries. In collaboration with Parliamentarians for Global Action, NPWJ’s Figà-Talamanca established a judicial assistance program aimed at providing ‘embedded technical advisers,’ or experts, to smaller and developing countries delegations in Rome.  Another key contribution of NPWJ was in organizing, in partnership with a host state, several sub-regional government meetings, such as the Dakar Conference of 1998, which strengthened and unified the Like-Minded Group of States around core principles.

REDRESS and the Victims’ Rights Working Group REDRESS, a UK-based and leading NGO dedicated to helping torture survivors obtain justice and reparation, took the responsibility early on in the Preparatory Committee process to steer NGO efforts toward a court for and with victims. Its leadership, Fiona McKay and Michael O’Flaherty, were established and respected experts among NGOs and governments.  Not only did REDRESS present position papers to every Preparatory Committee session, but its well-researched commentaries and advocacy initiatives on victim’s participation and reparation had direct impact and results throughout all phases of the negotiations.15 In the December 1997 Preparatory Committee session, REDRESS organized a number of activites including a meeting between delegates and NGOs to help find a consensus on reparation. REDRESS set an important precedent for the involvement of NGOs in the drafting process by also including these organizations in a meeting with the French and UK delegations over their draft article at the March Preparatory Committee session. On the basis of working group discussions in Geneva in May 1998, REDRESS presented a booklet to the Rome Diplomatic Conference, including basic principles and elements for a reparation regime and recommendations on the main contentious issues.16  REDRESS, approached by the CICC, established the Victims’ Rights Working Group (VRWG) to strengthen the monitoring and advocacy on the victims’

15 For example, REDRESS participated in the African Regional Meeting of States on the ICC in Dakar to ensure a strong reference to the rights of victims in the Dakar Declaration and the endorsement by African States and African NGOs in Rome. 16 REDRESS, “Reparations for Victims in the International Criminal Court: Principles, Commentary, and Recommendations for the Rome Diplomatic Conference,” London, June 1998.



the main actors of the negotiations73 rights that it facilitated.17 A small number of other key actors made great contributions to the issue, including in particular Dr. Yael Danieli, victimologist and director of the Group Project for Holocaust Survivors and their Children, as well as David Donat-Cattin from the European Law Student Association. While these persons and actors coordinated well around one of the CICCfacilitated working groups, they never became as integrated and well represented as the Women’s Caucus.  REDRESS and a few personalities went on to play a central role in the design of provisions on victims’ rights at Rome. The VRWG’s membership was smaller at the Rome Diplomatic Conference than at the Preparatory Committee session because of the higher degree of specialization by NGOs in the Conference. This was because all issues were on the agenda at the same time, and NGOs had to focus on their priority issues.

The European Law Student Association (ELSA) The European Law Student Association was represented by a large delegation throughout the negotiations for the ICC, headed by David Donat-Cattin, a charismatic Italian law student with a special interest in victim and child rights in the ICC.  ELSA’s mission statement at the time was: “a just world in which there is respect for human dignity and cultural diversity.”18 ELSA had membership in some forty-one states, including Turkey. Part of its mission included legal education, new roles for lawyers in society, and the development of the rule of law in transitional contexts.  ELSA had the potential to reach out to Eastern Europe at a time when the integration of Europe was moving ahead. The development of ELSA was a part of European integration, which advanced through a wave of pan-European meetings and events.  Under new leadership, ELSA established a particularly high priority for the ICC and joined the CICC Steering Committee in July 1996. ELSA had between ten and forty rotating representatives throughout the negotiations. The organization issued commentaries on a wide range of issues, including the definition of war crimes, the independence of the Court, the proprio motu powers of the Prosecutor, crimes against humanity, and the issue of penalties. At Rome, ELSA chaired the Children’s Rights Caucus within the CICC.

17 REDRESS established the VRWG in August 1997. See Victims’ Rights Working Group website: www.vrwg.org. 18 See the European Law Students’ Association website: www.elsa.org.

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Much analysis has been made and published about the emergence of civil society as a new collective power in multilateral affairs.19 Although this movement started in the early 1990s, most of the writing and written analysis of it didn’t come until after the adoption of the Rome Treaty. The ICC negotiations became a major illustration of this phenomenon. By the early 1990s, civil society had begun to emerge as a collective power in multilateral affairs. Although civil society had provided the moral and intellectual impulse for several major human rights treaty negotiations, such as the United Nations Convention against Torture, the traditional role and modus operandi of human rights NGOs were significantly different from the role they came to play in the ICC negotiations.20 Civil society took another step away from acting as a counter-power and another step toward working in partnership with states. Main government actors in the ICC negotiations were, or became, acutely aware of this phenomenon, since for most of them, the ICC was their first experience of civil society as a key player in a negotiation. It also gave them the feeling that the world was watching, and, to some of them, this meant an added sense of democracy in the negotiations.21 2. The Ottawa Process The most relevant precedent for civil society’s leadership in international negotiations and treaty making seemed to be the Mine Ban Treaty, which Canada sponsored after the UN failed.22 Canada initiated the Ottawa Process and invited negotiations there to ban landmines in 1997 after they had reached an impasse at the United Nations. These negotiations had a highly organized civil society presence and a core coalition of nations that strongly supported the process. Most nongovernmental organizations and individuals participated in the Ottawa Process through the International Campaign to Ban Landmines, a large international coalition with the 19 See Marlies Glasius, The International Criminal Court: A Global Civil Society Achievement (London: Routledge, 2006), 38, 70–71. 20 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UN General Assembly Resolution 39/46, 39th Session, Suppement No. 51, at 197, Official Records, UN Doc. A/39/51 (1984). Entry into force on 26 June 1987; online: www.un.org/documents/ga/res/39/a39r046.htm. 21 Contribution of Adriaan Bos to the NGO Coalition for the ICC, Rome Report: A Documentary History of the ICC Negotiations at the Diplomatic Conference in Rome, (unpublished). 22 States Parties, “Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction”, 18 September 1997 (online): www.icrc.org/ihl.nsf/FULL/580?OpenDocument.



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single goal of implementing a worldwide landmine ban. The Mine Ban Treaty was adopted in Canada by vote over the objections and opposition of the United States. Civil society was organized into an effective coalition, whose leader, Jody Williams, later won the Nobel Prize for Peace. Hardly any NGO actors at the ICC negotiations had been at the negotiations on landmines. For those who had, the ICC negotiations were markedly different. According to William (Bill) Pace, Convener of the NGO Coalition for an International Criminal Court, the landmines conference could hardly be taken as an analogous example since the process had been outside the UN, whereas the ICC negotiations occurred throughout in UN settings and under UN auspices.23 Another major difference with the Ottawa Process, according to Pace, was that at the ICC negotiations “NGOs and governments were the same kinds of people.” Indeed, on both ends, they were legal experts with the same academic background and specialties. “They could talk to each other,” said Pace.24 Unlike heads of delegations, they spoke the same language, had the same education, and came from the same background. This meant on some level that they were willing and able to cooperate with each other. IV. The Growth of the CICC Most NGOs at the Preparatory Committee organized their activities through the CICC. A few particularly strong international human rights organizations helped to found this Coalition. They influenced and respected its coordination while still carefully preserving their separate identities and influence. These organizations and their representatives had long-standing relationships with diplomats, scholars, and the UN Secretariat, and had participated in the early work of the International Law Commission on the court. Prominent among them were Amnesty International (Christopher Keith Hall), Human Rights Watch (Richard Dicker), the Lawyers Committee for Human Rights (Jelena Pejic), and the International Commission of Jurists (Mona Rishmawi). The European Law Students Association had a large, changing delegation under continuing leadership at each session of the Preparatory Committee. It enjoyed strong representation in several European capitals and support from its 23 Interview with Bill Pace. 24 Ibid.

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headquarters in Brussels. Its members were effective in lobbying and in giving the CICC access to delegates from their countries. After six NGOs attended the meeting of the Sixth Committee in the autumn of 1994, they realized their inability to monitor and influence negotiations in such an important set of talks at the UN; as a result, the wider NGO coalition felt the need to create a stronger presence. At this time, the NGO coalition included private organizations, such as humanitarian, parliamentary, religious, and women’s organizations, under the leadership and guidance of international human rights groups. The coalition’s founding organizations chose the New York office of the World Federalist Movement (WFM) to convene their first meeting on February 10, 1995. This relatively obscure organization had for a long time monitored UN activities and conferences, disseminated information, coordinated delegations and meetings, and shared information through a fax network. Bigger and more prominent NGOs were little inclined to give up taking positions and advocating specific positions publicly and with credit. The WFM willingly took up this initially self-effacing role of leading the coalition. 1. William R. Pace Several of the founding groups knew Bill Pace, the charismatic and politically skilled executive director of the WFM’s New York office, for his expertise on the organization and on the structure of and actors in UN negotiations, including the issue of securing NGO access to the meetings. He had been instrumental in other negotiations, such as the Vienna Conference on Human Rights in 1993 and the Fourth World Conference on Women in Beijing in 1995, in setting positive precedents for NGO access and roles at UN conferences.  Pace had spent his early life in Denver, Colorado where he had been a public school teacher and counselor, and later a college instructor. He was deeply involved in and became a strong activist in local social, political, and civic issues. This work led to a particular concern with the environment and then to the leadership of local and then governmental agencies devoted to it. In 1987, he worked for Amnesty International in New York and London. From 1990 to 1995 he both became the representative of the World Federalist movement at the United Nations and the executive director of an NGO devoted to the promotion of international law.  Pace brought to his leadership of the CICC great energy, managerial competence, skill in productive multitasking, and an intense dedication to the ICC cause. In deploying NGOs in the negotiations for the Rome Statute, he



the main actors of the negotiations77 combined high intelligence with a broad comprehension of the full range of factors, influences, political forces, and personalities involved. His open and hearty personal style and informality struck many as characteristically American and also gave his abilities and leadership a resilient power and effectiveness.25

Obtaining assured and continuous access for its members to Preparatory Committee meetings was one of the first and most important challenges to face the CICC. During the third session, the Preparatory Committee discussed the question briefly behind closed doors and then reconvened in a formal plenary. In this open meeting, the Committee both confirmed an early decision that plenary meetings would be open to NGOs and also decided to invite them to informal working groups. The Bureau agreed to this procedure on the recommendation of the Secretariat, which had previously discussed modalities in some detail with the CICC. These discussions resulted from a relationship of trust and confidence that had gradually developed between Roy Lee and Bill Pace. As this trust further deepened, an informal deal was sealed that the CICC would be responsible overall for the participation of NGOs, including the very cumbersome task of registering them for accreditation at Preparatory Committee sessions and, especially important, at the Rome Diplomatic Conference. The Coalition for the International Criminal Court grew from thirty NGOs at the beginning to roughly eight hundred in Rome, from all regions of the world and sectors of society. The bigger groups were the intellectual leaders of the coalition. They circulated and promoted new research and expert documents. Smaller groups were often more effective at networking, disseminating information, and building coalitions than the larger international organizations. Through this process, the coalition developed an increasingly powerful role in the development of the draft statute. The NGOs became partners in the negotiations, especially through consultative roles with a growing number of governments. The CICC organized sessions with government delegations at the Preparatory Committee. It held meetings of all its members on general strategy and also encouraged groups and caucuses to meet to develop their individual positions on particular issues individually. The coalition as a whole never took positions 25 Bill Pace’s resume on the Forum for International Crime and Humanitarian Law website (online): www.fichl.org/fileadmin/fichl/cvs/William_R__Pace_Resume_9-29-09.pdf.

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on specific questions during the Preparatory Committee in order to maintain both the plurality of ideas and objectives represented by the CICC and the solidarity among its members. Key negotiators never saw the NGOs as a monolith but rather perceived them as acting together in a coalition that worked for a final, effective compromise on the whole text. However, outlier NGOs with nonnegotiable demands or narrow interests got little attention. Another widely recognized contribution of the CICC was to inform the world at large about the negotiations. Indeed the CICC’s outreach and educational role to promote awareness and support for the Court was tremendous, especially in the context of complex, highly technical, and multi-annual multilateral negotiations. The CICC website was key in establishing credibility and legitimacy with government delegations for the quality and timelines of information it provided; along with its site, the coalition’s publication of newsletters, media advisories, reviews, and papers were instrumental in educating the public about the ICC.26 The coalition took great pains to ensure that accessible and accurate press information on the effort to establish a Court was prepared and distributed in a timely manner to journalists both locally and internationally. As a result of the combined efforts of the CICC and other NGOs, features in support of the Court appeared in publications such as The Economist, The New York Times, and The International Herald Tribune along with hundreds of other international newspapers.27 This outreach effort was indeed well known and recognized by key government leaders of the negotiations knew that achieving a sufficient basis for support to the text, beyond membership of their group, was essential to success. As Silvia Fernández put it: It was the dedicated efforts of NGOs in all corners of the world that put the ICC on the political agenda for many countries of the world. The Coalition and its individual members made enormous contributions to enhancing the universal participation in the process by promoting attendance to the meetings and ensuring active and meaningful contributions to the discussions. NGOs critically enhanced participation through several means, including by providing financial assistance to delegations. They deployed all efforts to promote and explain the process to delegations and governments in capitals through briefings, meetings, seminars and other events.28 26 NGO Coalition for the ICC, Rome Report: A Documentary History of the ICC Negotiations at the Diplomatic Conference in Rome, (unpublished): Preface. 27 Ibid. 28 “Introduction” in ibid.



the main actors of the negotiations79 V. The Like-Minded Group’s Partnership with NGOs

Close ties between the Like-Minded Group of states and NGOs, in particular the CICC, which grew out of the need to strengthen and support the LMG, originated from the creation of the LMG itself. In November 1994, a good number of UN member countries, including the P5, saw the International Law Commission’s project to establish a statute for the Court as an ‘academic exercise’ rather than something that would actually come into existence.29 A year later, in November 1995, as the Sixth Committee resolved to establish a Preparatory Committee in 1996, it appeared to the small group of NGO representatives present at the Sixth Committee session that a meaningful court was likely to emerge from these discussions. However, there was still major political opposition to the idea. First, there was the Permanent Five vision of a permanent but ad-hoc court subject to the Security Council. The UK and France held similar views to those of the rest of the Permanent Five on this issue. Secondly, a number of powerful players of the global south, including Pakistan, India, Mexico, and Kenya, among other countries, strongly opposed the idea. The small Steering Committee of the CICC foresaw the absolute necessity for a group of states to take ownership of the creation of a court worth having. States had to coalesce into a trans-regional group. Discussions between CICC leadership and the New Zealand representative Felicity Wong led to the organization of an initial meeting on 11 March 1996 in the New Zealand Mission to confer on the creation of a group. The meeting consisted of ten states, including South Africa, Italy, and Canada, together with several CICC representatives, including Bill Pace, Yelena Pejic, and Richard Dicker. The government participants, who were mostly legal advisers, were used to coalescing into a like-minded group as a standard diplomatic method. In this instance, they adopted this idea and ran with it. By August of 1996 the LMG was self-sustaining with about thirty members.30 The Like-Minded Group was discreet, operating largely under the radar. It was almost entirely composed of legal advisers in missions to the United Nations. The CICC succeeded in breaking the solidarity of the P5 when UK Foreign Secretary Robin Cook decided to join the LMG in its formation.

29 Interview with Gilbert Bitti. 30 Interview with Bill Pace.

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As the NGO coalition grew in strength, a strong alliance developed between it and the Like-Minded Group. Through regular meetings, the Coalition helped the Like-Minded Group develop guiding principles to serve as the first unified position of the group before the diplomatic conference. There was not a unified position among NGOs or among Like-Minded states on many of the technical issues at stake. But by the start of the Rome Conference, there was indeed a large degree of commonality around some key elements, considered to be indispensable for an effective court. This common basic position was generated during the three years of productive dialogue and interaction between the Coalition, some of its members, and the Like-Minded Group. During the Rome Conference, the CICC and individual NGOs contributed to galvanize and maintain support for these principles through publications, press briefings, and regular contacts with individual states or groups of countries as well as regular meetings with the Bureau or its individual members.31 A key NGO contribution to the LMG throughout the Preparatory Committee sessions consisted in preparing thoughtfully researched commentaries on every issue discussed. It made the commentaries available to CICC group members and other delegations prior to the Preparatory Committee sessions, and these commentaries naturally became the basis of advocacy and lobbying activities at those sessions. So effective were NGOs in providing legal analysis that some NGO legal experts were asked to serve on government delegations. These nongovernment experts came to serve delegations in two groups. One was through direct contacts with governments who deliberately recruited them. In this way, Canadian academic Valerie Oosterveld came to serve on her country’s delegation. Similarly, Rutgers University professor Roger Clark joined the delegation of Samoa, with whom he, as a New Zealander, already had a long relationship. In the case of Canada, it was a conscious priority of the highest political level, the minister of foreign affairs, Lloyd Axworthy. He felt nongovernmental organization perspectives should be part and parcel of the Canadian position and decision making. This meant that there would be full-time members of a Canadian delegation who were there specifically to represent nongovernmental organizations’ perspectives

31 Silvia Fernández in the Introduction to NGO Coalition for the ICC, Rome Report: A Documentary History of the ICC Negotiations at the Diplomatic Conference in Rome, (unpublished).



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and attitudes in the work of the delegation and in the development of Canadian positions on issues before the various ICC negotiating sessions. Two other representatives on the Canadian delegation came with NGO backgrounds. These were David Matthis, whose specialty was in issues such as the death penalty, and Darryl Robinson, who had worked with Amnesty and the International Commission of Jurists before being recruited in 1996 into the Canadian Ministry of Foreign Affairs by Lloyd Axworthy. A second, larger group of experts was recruited, proposed, and placed in delegations as embedded technical advisers.32 The role of these experts would be to analyze options and help states achieve an informed choice for themselves. These countries would then give due consideration to their particular circumstances, going beyond the generic information provided by NGOs. Through this relationship the program could help them better serve their interests. Tailored information and comprehension of the process would limit their need for detailed instructions and fallback positions, which would help them rally a strong position in favor of the ICC. NGOs also acted to support the Preparatory Committee outside of its sessions. The Coalition worked hard through its networks to encourage and coordinate NGOs to influence governments at home. Eventually, individual NGO members of the CICC led or contributed significantly to several successful regional and national meetings that helped would-be negotiators develop important personal contacts and put the position papers of these groups into play in national policymaking. Governments involved both benefited from and supported the intersessional meetings. CICC leader Bill Pace and HRW showed early interest and recognition of the importance of this type of advocacy. The Open Society Initiative and other foundations started to fund participation to these regional meetings. A decisive event was obtaining funding for representatives in the regional meetings.

32 The recruited staff under the judicial assistance program’s initiative to establish embedded technical advisers primarily included young attorneys in their late twenties with, in most cases, an M.A. in international law; many were pursuing a Ph.D. in law or working as either a law firm associate or as a junior university lecturer. A number of these individuals had experience in a predominantly multilateral environment either at the ICTY or as an adviser at the ILC. Of these embedded advisers, there was a slight dominance of Italians proportionately, but other Europeans (mainly from academia) and Americans (mainly from law firms) were well represented.

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1. Intersessional Regional Meetings The Dakar Conference of 1998, a high-level, all-African meeting attended by senior members of African Ministries of Justice and Foreign Affairs, was an example of a particularly successful intersessional regional meeting.33 The key objective for its co-sponsor, No Peace Without Justice, was to trigger greater political will in the months leading up to the Rome Diplomatic Conference through public endorsement of positive positions on key issues of the ICC Statute as well as the commitment to work toward these in Rome. NPWJ co-sponsored similar meetings at Montevideo and Paris. The organization would identify a political leader who would strongly commit to a key issue or a set of issues and seek to have leadership on it. The leader would invite his peers to attend a conference, opened with a prepared, pre-agreed set of fundamental principles, such as the ones adopted in Dakar. These principles were meant to later translate into concrete instructions to delegations. Ministers gained credit for drafting these principles and ownership over them. The South African Development Community led another successful regional initiative. Thirteen member countries developed ten principles similar to those at the Dakar Conference for an independent, fair, and free court, which were adopted at the state-sponsored SADC Regional Conference on the Establishment of an International Criminal Court in Pretoria in September 1997. Richard Dicker of Human Rights Watch was a more behind-the-scenes kind of organizer and an inspirer of the meeting and its principles than NPWJ was in Dakar. But his leading role was clear to all present. In October 1997, the South African Ambassador to the United Nations read at the Sixth Committee of the fifty-second General Assembly the ten principles that had been adopted at the SADC meeting.34 The ten principles SADC created became a basis for the work of all participating countries and was a source of solidarity among them during the Rome Diplomatic Conference. Regional meetings drew countries from sub-regional groups into the Like-Minded Group, and SADC activities led its member countries to sympathize with them. The core group of SADC states gradually succeeded in bringing a number of francophone and other African states first to meet with and eventually join the Like-Minded Group. As a result, both the 33 See Dakar Declaration for the Establishment of the International Criminal Court, 6 February 1998, in Appendix C, infra. 34 See SADC Principles in Appendix B, infra.



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Dakar and South African Development Community meetings led many African states to eventually break out of the Non-Aligned Movement during the Rome Diplomatic Conference. The African nations’ departure left the Non-Aligned Movement, which insisted on operating on consensus, in a vacuum. By contrast, the Like-Minded Group was significant as an option that allowed its members to break away from regional groups and other units like the Non-Aligned Movement on specific issues. The LMG members also brought back Like-Minded Group positions to these other groups. These strengths of the LMG helped to oppose the widespread feeling that the Court could not exist, let alone flourish, without the presence of the United States or that the United States would succeed in insisting on control by the Security Council. Like-Minded Group governments convened other intersessional events. Germany had such a conference in Budapest with Eastern European states, which allowed Eastern European delegations to have a meaningful participation in Rome. With support from Human Rights Watch, Trinidad and Tobago organized meetings of Caribbean countries. Another type of intersessional meeting was devoted to advancing the draft statute between sessions of formal negotiations. They were another key feature of the like-minded states’ partnership with NGOs. These meetings, held either under the auspices of the Dutch government on the Dutch military base of Zutphen in January 1998 or in Syracuse, Italy, under the initiative of Cherif Bassiouni, offered plenty of opportunities for selected NGO representatives and state delegates to work, on almost equal footing, around the texts and also share thoughts informally at the dinner table. NGOs, such as HRW, provided funds for developing countries’ legal advisers to attend the intersessional meeting in Syracuse. This allowed for some African delegations to participate more effectively in the negotiations and to associate themselves with the results of the Syracuse meetings.35 2. Like-Minded Group Leadership The CICC informal leadership was also involved in focused advocacy in the capitals of the negotiating countries, encouraged by some LikeMinded Group representatives. At the last meeting of the Preparatory Committee in December 1997 and during the later stages of the negotiating process, nongovernmental organizations strongly felt that achieving 35 Interview with Zeid Ra’ad Zeid Al-Hussein.

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their hopes for the Like-Minded Group would require improving its leadership by Canada. At the time, Canadian Legal Adviser Alan Kessel was head of his country’s delegation and of the LMG. Not only NGOs but also key LMG governments, such as Norway, Germany, and the Netherlands, pitched for an enhanced leadership of the Group. Bill Pace kept trying to get Lloyd Axworthy to meet with them to discuss a replacement for Kessel. A meeting was finally arranged through David Matthis, a human rights lawyer close to the minister and known to Christopher Hall of Amnesty International. Matthis arranged a meeting with Axworthy during the first Preparatory Committee session in March 1998. Ten to fifteen Canadian NGOs joined representatives of Human Rights Watch and Amnesty International. While the meeting did not do much to affect Canadian leadership of the Like-Minded Group or to establish agreement on the need for such a change, it did have the important effect of engaging Axworthy much more closely in the negotiations. Meanwhile, Adriaan Bos had recommended Philippe Kirsch, a counselor to Lloyd Axworthy, as a potential leader for the Like-Minded Group. Axworthy told the group that he would come to Rome and deal with the issue of Canadian leadership. At the time, Kirsch was preparing to argue a case at the International Court of Justice (ICJ) involving fisheries between Canada and Spain.36 NGOs made a strong appeal to Kirsch to take over as leader of the Like-Minded Group, but Kirsch responded that he would not be able to come to the Rome Diplomatic Conference until late into the negotiations after the conclusion of his ICJ case. Nevertheless, Kirsch came to New York as Axworthy’s envoy to discuss both the progress of the negotiations and the LMG situation. Key facilitators and regional representatives within the Like-Minded Group selected Richard Rowe of Australia as their leader. The rest of the Like-Minded Group accepted this designation. 3. Common Ground According to several key NGO actors, NGO support was found to be, throughout the Preparatory Committee and in Rome, well beyond simply close to the heart of negotiations. They emphasized that NGOs had moreover written substantial parts of the Statute and actually succeeded in having them included.37 This was most true regarding provisions such 36 The International Court of Justice (ICJ) is also referred to as the World Court. 37 Interview with Barbara Bedont.



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as gender crimes as well as victims’ participation. These constituted a success story for sectoral NGOs of the CICC. In terms of negotiating strategy, it was always through winning over states and promoting their ownership of such provisions that NGOs succeeded in having these provisions put forward and eventually included. This does, however, make it somewhat difficult to give adequate credit for these provisions to contributing NGOs. Nevertheless, NGOs were not always perceived to advocate for the right negotiating strategy. In Kirsch’s account of his first meeting with NGOs, the CICC advocated for an early voting process in the negotiations in Rome designed to prevent the feared watering down of the text that a consensus-based approach would entail in their minds. In Kirsch’s own mind, this was an impossible option for two reasons: technically, a vote article-by-article would be impossible because all the issues were intrinsically linked, and politically, this would have contributed to create deep division early on among delegations. Gradually as the Preparatory Committee proceeded, NGOs and the Like-Minded Group of states reached a sense of standing together in the middle of broad common ground, even if its ultimate boundaries were still not agreed. The CICC, working in tandem with the most progressive Like-Minded Group delegations, moved the LMG forward slowly in the period just before Rome toward endorsing a full set of principles that formed the basis of the civil society position, known as the Like-Minded Principles.38 This common ground promoted mutual acceptance of many kinds among the participants. Governments and the team from the Office of Legal Affairs came to accept NGOs as indispensable consultants and worthwhile advocates. The CICC and its members attained full legitimacy and great, sometimes determinative, influence as brokers of solutions to impasses, as experts and even as confidants. As the Coalition’s leaders had planned from the beginning, a powerful and vivid precedent had been set for the role and presence of NGOs at future meetings convened by the General Assembly. This feeling was clearly shared and expressed by key leaders of the Like-Minded Group, including in particular, Silvia Fernández, Adriaan Bos, Hans-Peter Kaul, and Sabelo Sivuyile Maqungo. NGOs in turn had learned to accept a great deal in the institutional culture and style of international treaty conferences, which many of them  had been previously inclined to ignore. This included matters of

38 See the CICC’s NGO Basic Principles for an Independent, Effective, and Fair International Criminal Court in Appendix D, infra.

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procedure, timing, and access to documents, decorum, and even dress. Without yielding their often justified suspicion of governments, NGOs came to accept that national positions, however obstructive, frequently had specific, genuine causes better addressed by dialogue than by simple condemnation.

CHAPTER FOUR

THE ROME DIPLOMATIC CONFERENCE I. The Final Preparations In the run up to the Rome Diplomatic Conference, the Secretariat was especially busy making final preparations. On 15 December 1997, however, a deadline for their work was set, when the General Assembly decided by resolution that the United Nations Diplomatic Conference of Plenipo­ tentiaries on the Establishment of an International Criminal Court would be held in Rome from 15 June to 17 July 1998, to finalize and adopt a convention for the ICC.1 This established the final stage of the negotiations, a preliminary deadline for them, and presented the challenge of organizing and managing the Conference. Roy Lee had been organizing the logistics, procedures, and operations of the negotiations. He finalized discussions on the Rome Diplomatic Conference budget, which included his insistence on the installation of voting machines in the plenary hall of the Food and Agriculture Organization (FAO) building, as it was clear to him that voting was almost certainly going to be necessary. After considerable persuasion, he convinced the Italian government to spend the $2 million this installation required. Hans Corell had undertaken the necessary high-level coordination of the other major departments within the United Nations to keep them informed and in support of the sessions of the Preparatory Committee and the Rome Diplomatic Conference. He had also regularly informed and made recommendations to Kofi Annan about the progress of the negotiations, the level of political support they were getting from UN members, and the interests of the United Nations in their evolution and objectives.2

1 Resolution on the Establishment of an International Criminal Court, UN General Assembly Resolution 52/160, 52nd Session 72nd plenary meeting, Official Records, UN Doc A/RES/52/160 (15 December 1997). 2 Briefing Memoranda from Hans Corell to the Secretary-General in 1998: 10 January, 13 and 24 February; “Communications to the FAO on Logistics and Finances”: 3 February, 9 April. On file with the authors.

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After receiving their deadline, Roy Lee and Hans Corell began their collaboration on the conduct and resources of the Conference and on relations with the host country as well as with the Food and Agriculture Organization. This collaboration as well as their individual responsibilities was to have a profound and determining influence on the procedures, progress, and shape of the Conference. 1. The FAO Building The Food and Agriculture Organization was holding its own meetings in its building until the first of June. The United Nations advance team had only two weeks to get into the building, set up their offices, and put their equipment in place. The Italian government finished the installation of the vote tallying equipment in the main plenary hall, on which Roy Lee had insisted, just in time. In the week of 8 June, delegations, NGO representatives, and members of the Bureau, fresh from the Courmayeur meeting, began to arrive.  The FAO building made a disheartening first impression on these new arrivals, which was confirmed throughout the Conference. A heavy, blocky example of typical Fascist architecture, it had been built in 1937 as Mussolini’s Ministry of Colonies. The invasion and administration of Ethiopia had been directed from this building and perhaps the knowledge of this by many involved in the Rome Diplomatic Conference contributed to its frustrating and depressing effect on Conference participants. Although the FAO had divided up much of the original empty space into offices, which created confusing warrens of rooms and doors on many floors, it did not seem to have replaced much of the original equipment of the building, especially its plumbing and elevators.  The layout of the floors and sections of the building were so confusing that they made their own contribution to the general stress for most participants, as they tried to go from one to another of the multiple meetings of working groups and informal consultations, which piled up on each other, especially toward the end of the Conference. Moreover, atriums and dead-end corridors usually made it impossible to go all the way from one side of the building to another on one floor. Stairwells did not go all the way from the bottom of the building to its top. In the outlying portions of the building, upper floors were accessible only by one or two elevators hidden in corridors or behind unmarked doors.

Concerned officials and departments of the United Nations had been meeting since April of 1997, in an informal committee to plan the administration and management of the Rome Diplomatic Conference. It organized a



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first planning mission, which went to FAO headquarters the following June to identify and begin to provide for the Conference needs. Meanwhile, the informal committee nearly completed a draft of the rules of procedure for the Conference. They had made two modifications to the usual rules that eventually survived into the rules adopted in Rome. The rule on general agreement or consensus had been simplified so that, if it proved impossible to achieve, the normal procedures for voting would apply more quickly. Also, a new rule on the Drafting Committee limited it to questions of wording and of agreeing texts in different languages. This was a change from the practice in other conferences of allowing a drafting committee to participate in negotiating texts. From early in its planning, UN staff was assuming, correctly as it turned out, that the Committee of the Whole would deal with all substantive issues. If necessary it would establish working groups to deal with those questions that were still disagreed upon, and the staff foresaw that the Conference would carry a heavy workload. The Committee of the Whole would therefore have to begin its work immediately, and the work of the Drafting Committee would begin as soon as texts began to arrive from the Committee of the Whole. Invitations to the Conference had already been sent to all countries by the end of January. It was agreed in March that the Secretariat had also received some five hundred requests from nongovernmental organizations to attend. The Secretariat, along with the NGO Coalition for an International Criminal Court, would identify invitees. The Secretariat was anxious to avoid a long debate over NGO participation in the Preparatory Committee, as this would distract it from its heavy workload in its final session. The United Nations had the list reviewed and accepted in informal consultations before that session. Also in January, the Secretariat had identified most of the unresolved substantive issues that would carry through to the Rome Diplomatic Conference from the last session of the Preparatory Committee. Despite these differences among delegations on particular issues, the Secretariat recognized that there was a fundamental agreement on the overall organization and structure of the Court and on its basic operations. Moreover, it concluded from close observation that there was very wide determination to complete a statute for the International Criminal Court. As they had in the Preparatory Committee sessions, the United Nations officials in Rome would advise the Chairman on tactics and methods for conducting the negotiations. As authorized by the Bureau, they would also work with delegations on particular issues and press the coordinators of working groups to speed up their work and produce agreed language.

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Shortly after the Preparatory Committee had drawn to a close in April 1998, the sad news circulated that Chairman Adriaan Bos was seriously ill and, as a result, would be unable to preside over the Committee of the Whole at the Rome Diplomatic Conference. Many individuals in the UN Secretariat and the Preparatory Committee Bureau and government representatives who had actively participated in the three years of preparatory meetings realized it would be extremely difficult to replace him. At first glance, no candidate seemed to exist who had taken part in the Preparatory Committee and shared both Bos’s unusually high diplomatic skills and leadership experience of major UN negotiations. A candidate, however, did appear with a similar combination of experience and expertise. Philippe Kirsch, a Canadian lawyer and member of the Queen’s Counsel, had spent his entire career in positions pertaining to international law in the Ministry of External Affairs. At the time of his choice to replace Bos, he was assistant deputy minister for Legal, Consular, and Passport Affairs. He had been the chairman or president of several international conferences on subjects related to terrorism such as unlawful acts affecting international civil aviation and maritime navigation. He had also chaired a UN Ad Hoc Committee concerning a convention on the safety of United Nations and associated personnel. He was a member of the international Permanent Court of Arbitration and had also been the chairman of drafting committees in international conferences concerning the protection of war victims and the work of the Red Cross. From all this experience and these activities, Kirsch was well known at the United Nations and in the greater world of international law. He knew and had worked with most of the main actors of the treaty negotiations, including government representatives and UN Secretariat staff members. He had thought through the lessons of his chairmanships and had distilled a strategy from them. This strategy included setting up momentum in negotiations by moving as quickly as possible to consider specific issues and language, break issues and subjects down into sections small enough to be manageable in debate, and take immediate action when a dead end appeared to be imminent. He believed in running conferences at several levels simultaneously, with plenary, working group, and informal sessions proceeding in parallel. He understood the importance of nongovernmental organizations and the need to work with them, as well as the problems they could present. Unlike many government officials, he understood that the civil society presence in a conference could develop a culture and



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dynamism of its own, which a chairperson should understand and learn to work with. As delegates weighed the possibilities, they decided against both HansPeter Kaul from Germany and Richard Anthony Rowe from Australia for reasons of political-strategic considerations rather than for a lack of personal skills. Germany, a leading country of the Like-Minded Group, had the most extensive view of the Court’s jurisdiction and powers. If Germany were to chair the Committee of the Whole, the group would lose the active participation of its most progressive element. Germany also seemed, at the time, isolated on the question of the inclusion of the crime of aggression within the jurisdiction of the Court. As for Australia, its new government clearly did not have the International Criminal Court as its highest priority. Canada, as a good neighbor, would easily converse and negotiate with the United States, which created greater incentive to select Kirsch as the chair. However, he had not been involved in the preparatory process until its last session. Some observers feared that he lacked Bos’s diplomatic skills and was too straightforward. A strong endorsement from Bos overruled these concerns. Kirsch’s style was reflected at all levels in the techniques chosen and used throughout the negotiation in Rome. The main features of his approach were constant consolidation of the text, flexibility in achieving solutions, and anticipating and heading off potential crises.3 Pushy in driving delegations through negotiations, Kirsch was also strong, determined, compelling, and straightforward. The unfolding of a successful outcome on the last day of negotiations led many to view him as the perfect chairman. This success was all the more amazing since his style and techniques had previously been seriously criticized by several groups and individual countries. Canada brought a group of its officials to Rome both for its delegation and to support Kirsch. Some members of this group constituted Kirsch’s channel to Canada’s foreign ministry and to its chief, Lloyd Axworthy. III. Conference Procedures In its general sessions as well as in the various working groups and other negotiating units and meetings that it created, the Committee of the 3 This approach involved private sessions organized on the chairman’s initiative to address specific issues or articles in order to facilitate compromise or agreement when such could not be found in a formal session.

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Whole did the real work of negotiating the Rome Statute. Its pattern of organization, as well as many of the people involved, was much the same as in the Preparatory Committee. The Committee of the Whole reported to an upper chamber called the General Committee. The General Committee began and continued as a part of the overall structure of the United Nations General Assembly. By contrast, the Committee of the Whole developed more and more its own techniques and practices, as it struggled with the special and often surprising problems and obstacles of creating the Rome Statute. The General Committee served as plenary body of the Conference. Under the rules of procedure, it established both the structure and organization of the Conference, and also the rules for conducting its proceedings. As required by these rules, the General Committee created its own committees and the Committee of the Whole. With these responsibilities disposed of in its first two sessions, the General Committee in subsequent sessions heard statements of overall positions by most of the states attending the Conference and by a good many nongovernmental organizations and regional institutions. Then it recessed on 18 June until the Committee of the Whole finally submitted the text of the Rome Statute for General Committee adoption on 17 July. United Nations Secretary-General Kofi Annan, as Temporary President of the Conference, opened the first session of the General Committee on 15 June. He told the assembled governments that “the whole world would be watching the Conference and concrete results would be expected.” He recognized that in the Conference, “conflicting principles and interests would have to be reconciled.” Raising a theme that would be repeated throughout the Conference and eventually recognized in the Statute, he said: The overriding interest must be that of the victims and of the international community as a whole. I trust you will not flinch from creating a court strong and independent enough to carry out its tasks. It must be an instrument of justice, not expediency. It must be able to protect the weak against the strong.4

He then presided over the election of the Permanent President of the Conference, whom the Preparatory Committee had nominated. 4 Official Records: United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998, Vol. II, 61–65, paras. 3–12.



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In keeping with the usual custom of United Nations conferences outside New York, the Preparatory Committee had nominated, and the General Committee elected as its President, a distinguished citizen of its host country, Professor Giovanni Conso.5 As a recent minister of justice, he had the necessary rank for a meeting where at times some of the delegations were led by ministers of foreign affairs and justice. He had been a member of Italy’s Constitutional Court for nine years, ending as its president. Membership of the Superior Council of the Magistrature in Italy, on government committees to draft a new criminal code to revise criminal procedures, and on the establishment of the International Criminal Tribunal for the former Yugoslavia, had given him extensive experience in the practical operation of courts, as well as in the problems of their jurisprudence.6 As an academic, he had published extensively on criminal law and procedure and on the International Criminal Court. He had the respect of most of the governments involved in the Conference. His skills as Chairman were limited, but the work of the General Committee did not much test them. Conso got the meeting off to a deceptively fast start. Following a script and in rapid-fire order, he led the General Committee in adopting a provisional agenda and rules of procedure, electing the vice presidents and chairmen of the Committee of the Whole and the Drafting Committee, and finally appointing a Credentials Committee. In these first actions, the General Committee proceeded exactly like any other body established by the General Assembly and followed its practices precisely. All of these adoptions, elections, and appointments had been prearranged by the Bureau in consultations with UN staff. The Preparatory Committee had established most of the rules of procedure; subsequent informal consultations had resolved the remaining disagreements, and the Committee accepted President Conso’s suggestion that they be adopted by consensus. It also adopted the provisional agenda as proposed by the Preparatory Committee. The rules of procedure of the General Committee called for the elections of the vice presidents, of the chairmen of the Committee of the Whole, and of the Drafting Committee to follow the practice at the United Nations. To ensure what the United Nations calls ‘equitable geographical  representation’, established groups of nations from world regions

5 Official Records, Vol. 11, 61, paras. 19–20. 6 Interview with Philippe Kirsch.

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nominate their shares of these positions. These nominations are almost always combined into a single slate approved by the relevant UN body. The General Committee did the same. There were thirty-one vice presidents, chosen in recognition of nations that had been particularly active in the Preparatory Committee and those that were especially powerful regionally and internationally, such as the permanent members of the United Nations Security Council. The choice of vice presidents also responded to the influence of the internal politics of the individual regional groups. The result was a mixture of countries as small as Samoa and as large and powerful as the United States. The rules gave the president the right to propose the members of the Drafting and Credentials Committees. The meeting accepted Conso’s suggestion that the members of the Credentials Committee be the same as in the Credentials Committee of the immediately preceding session of the General Assembly. That same afternoon, the General Committee completed itself by approving its organization of work and appointing twenty-four members of the Drafting Committee. Conso had received nominations of these members from government and suggested them to the meeting. They included again the permanent members of the Security Council. The other nineteen members were countries whose national languages were among those with official status at the United Nations. The exceptions to this were South Korea, the Philippines, Poland, and Slovenia. The diplomats representing all of these nations in the Committee were usually multilingual. The session next immediately adopted the organization of work proposed by the Preparatory Committee. The proposal began with calling for the actions that the meeting had already taken. The rest of it provided for the General Committee in plenary sessions to hear statements from governments and also from a limited number of intergovernmental and nongovernmental organizations. IV. Opening Statements The General Committee heard 167 speeches from governments, 22 from intergovernmental organizations, and 5 from NGOs; non-government representatives were given time to speak at the end of each General Committee session. Most of the government speeches were restatements of positions already taken in the Preparatory Committee and in the General Assembly’s Sixth Committee.



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The United Kingdom spoke on behalf of the European Union, and South Africa spoke for the South African Development Community. Other delegations referred to decisions taken about the ICC and the Rome Diplomatic Conference by the Non-Aligned Movement, the regional groups of African states and Latin American states, and the Asian-African Legal Consultative Committee. Forty-four other countries made brief references to the politically controversial provisions of Part 2 of the draft statute. They were diverse with representation from all of the continents. Among them were major countries such as Argentina, Brazil, France, Germany, India, Italy, Japan, Mexico, the Russian Federation, and the United States. There was universal support for complementarity. All speakers agreed that genocide, war crimes, and crimes against humanity should be the core crimes the Court would try. Most said that the Court should be free of ‘political influence or control’, but notions of what that meant were widely different. Few mentioned the crime of aggression, and among those who did, there were many disagreements and concerns. South Africa’s statement for the SADC did not disagree with this vision but was more general and conceptual. It recalled the crimes of apartheid and acknowledged the brutal and shocking conflicts still taking place as the Conference was meeting. The consensus was that there must be punishment for the perpetrators of such crimes. The recent meeting of the ministers of justice and attorneys-general of the SADC had affirmed their commitment to the Court’s early establishment as an independent and impartial body, complementing national criminal justice systems, though able to act when such systems were inadequate or abused, and promoting the integrity and the equality of states. The Prosecutor should be independent and free of political influence and must be able to investigate and prosecute on his or her own initiative under judicial scrutiny but without interference from states or the Security Council. On the first day of the Conference, quite a few other delegations made clear that their governments or at least their speaking representative knew relatively little about the International Criminal Court. This reflected a serious problem especially in the opening weeks of the Conference. Although there was reasonable continuity of delegates from the Preparatory Committee sessions to Rome, most of the delegates there had not been to those sessions. They either had to pretend, stay silent, or learn quickly about the negotiations. Nongovernmental organizations helped greatly in this learning through their papers, meetings, presence on delegations, and small or individual consultations. Having persons who had

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served as a working group chairpersons or coordinators in the Preparatory Committee serving in similar roles in Rome also helped delegations to get up to speed. The informal and discreet work of the coordinators was particularly helpful for small or embarrassed delegations. It enabled such delegations to function reasonably well within the broad or sketchy instructions they had. Others were enabled to have useful dialogues with their capitals, which then were both better able to understand events in Rome and to provide relevant instructions. There were still, however, too many that chose to pretend, did not care, or were simply unable to keep up. The funds available from the United Nations and from nongovernmental agencies made it possible for many more delegations from developing countries to attend the Conference. The problem of how to support full participation of these very small delegations in the crowded and complex work of the Conference was far from entirely resolved in Rome and will remain a problem for future conferences like it. Some delegations later complained that the lack of interpreters at meetings of working groups and other small negotiating sessions hindered them from following all aspects of the Conference and understanding the development of the draft text of the Statute. Only the sessions of the Committee of the Whole and the Drafting Committee received full interpretation because the United Nations budget for the Conference could not pay for full interpretation in all of its meetings. V. The Committee of the Whole: ‘The Substantive Work’ On the morning of 16 June, Chairman Kirsch convened the first meeting of the Committee of the Whole, which immediately revealed important obstacles. Some five thousand delegates were expected to participate at some point in the Conference, including about one hundred ministers. The draft statute was unwieldy and in many places almost inchoate. Kirsch spoke intently and carefully to the Committee about the organization of its work. His proposals on organization to the assembled delegates came from his careful appraisal of the state of the draft text at the beginning of the Rome Diplomatic Conference. In the short time since his nomination as chairman and with the help of the intersessional discussions at Courmayeur, Kirsch had identified and analyzed the outstanding issues in the draft statute, which had been too difficult for the Preparatory Committee to resolve. This review convinced



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Kirsch that there was a serious prospect that the Conference would either end in failure or produce a court that might appear impressive on paper but prove ineffective and impotent in practice. The enormous and inherently very difficult general challenge was to create a body of laws and procedures for the Court that the major world legal systems would not reject. 1. Outstanding Issues in the Draft Statute Kirsch considered that there had been agreement in the Preparatory Committee that war crimes, crimes against humanity, and genocide should be included in the Statute, but that there was still uncertainty as to how to define them. Some of the difficulties about these definitions were in existing international law. However, many more came from the complexity and unfamiliarity of modifying those definitions, intended to apply to behavior by nations, to be suitable for use, especially by judges in trials of individuals. Moreover, delegations did not agree on which provisions of war crimes law should be included. This disagreement was particularly acute regarding whether war crimes should cover internal conflicts, since in modern history, most atrocities usually did not occur in formal wars and often only partly, if at all, involved government-armed forces.7 Nations also could not agree whether crimes against humanity could be committed only as part of armed conflict, or also as organized acts of nonmilitary violence. The level of seriousness, or in the jargon of the Conference ‘the threshold of gravity’, that would qualify these crimes to be prosecuted at the Court also remained undetermined. Beyond the three major categories of crimes already accepted, should others such as aggression, terrorism, or drug trafficking also be included? Should the Statute make special provisions for crimes against women and children or allow for the participation of victims and survivors in trials, either as victims or as observers with the right to be heard? Many aspects of the broad question of jurisdiction were also in dispute. What should be the trigger mechanism for cases to begin or be accepted at the Court? Negotiating the jurisdiction of the ICC proved to be one of the most controversial and difficult issues at the Rome Diplomatic Conference. Moreover the issues of state sovereignty, the relationship with the United 7 See Philippe Kirsch and Darryl Robinson, “Reaching Agreement at the Rome Conference” in Cassese et. al., The Rome Statute of the International Criminal Court, 69–70; and Philippe Kirsch, “The Development of the Rome Statute” in Roy Lee, ed., The International Criminal Court (1999), 454–455.

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Nations Security Council, the risks of political interference, and the effective independence of the ICC were at the center of the debate on jurisdiction. How would the Court acquire jurisdiction over countries for the crimes in the Statute? There was wide agreement that nations ratifying the Rome Statute would automatically accept its jurisdiction. However, quite a few states wanted some version of an ‘opt-in’ arrangement that would allow each ratifying nation to specifically accept the Court’s jurisdiction over particular crimes. Should the United Nations Security Council be able to refer cases to the Court or to stop it from proceeding with particular cases? Furthermore, should the Court have the consent of states involved in a case before taking it up? Some believed there should be no consent requirement. Others believed consent should be given by either the state where the crime happened, the state of the nationality of the accused, the state of the nationality of the victims, or by the state that had the accused in custody. Some delegations wanted consent by all of these states in each case. They strenuously emphasized that no consent, or consent by the state with custody, would not only greatly reduce support for the Court, but also stir up active opposition to it. Finally, there were practical concerns. How should the Court be financed? What penalties should it be able to impose? Should these include death? 2. Working Groups The meeting also agreed that the working methods of the Conference should be effective, transparent, and flexible. The Committee of the Whole should identify in its general sessions which sections of the statute required further negotiation. The session agreed with Kirsch that, like the Preparatory Committee, the Committee of the Whole should then use working groups and informal consultations to deal with the most delicate and sensitive parts of the draft statute before referral to the Drafting Committee. This agreement proved to have an importance that may have been only partly anticipated when the draft statute was made. The working groups turned out to be effective in furthering the progress of the Conference, and they substantially reduced the influence of the traditional, regional, and caucus groups at the United Nations. They gave an advantage instead to the groups of states that had formed around the particular issues or questions assigned to each working group. In particular, the Like-Minded



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Group sought to have members in each working group to present its positions there.8 In its first two meetings, the Committee of the Whole elected Silvia Fernández de Gurmendi (Argentina), Phakiso Mochochoko (Lesotho), and Constantin Virgil Ivan (Romania) as vice-chairpersons and Yasumasa Nagamine (Japan) as the rapporteur. It also chose the chairs for its working groups: Per Saland (Sweden) for the Working Group on General Principles of Criminal Law, Silvia Fernández de Gurmendi (Argentina) for Procedural Matters, Rolf Einar Fife (Norway) for Penalties, Phakiso Mochochoko (Lesotho) for International Cooperation and Judicial Assistance, and Molly Warlow (United States) for Enforcement. It was quickly decided that Part 1 of the Statute on “Establishment of the Court” could go without further negotiation to the Drafting Committee. On Part 3, concerning general principles of criminal law, the session accepted the coordinator’s recommendations that a few articles were indeed ready for the Drafting Committee, and a number of others, most of which required policy or political decisions, should go to the working groups. A very substantive debate followed on two of the latter articles. After delegations introduced and discussed formal proposals, the articles went to the Drafting Committee. Three days later during its sixth meeting, the Committee chose thirteen coordinators for sixteen sections of the draft statute. The role of the coordinators was to encourage and facilitate informal consultations on their subjects in support of the work of the different working groups. Many of the coordinators were already chairpersons of working groups on the same subjects. Their appointment as coordinators was intended to give them an additional role, particularly on issues apparently at a dead-end, or where there were many conflicting positions. These were: ‘Preamble’, Neroni Slade (Samoa); ‘Establishment of the Court’, S.R. Rao (India); ‘War Crimes’, Herman von Hebel (Netherlands); ‘Crimes against Humanity’, Waleed Sadi (Jordan); ‘Aggression and Other Crimes’, Tuvako Manongi (Tanzania); ‘Jurisdiction’, Erkki Kourula (Finland); ‘Admissibility’, Darryl Robinson (Canada); ‘General Principles of Criminal Law’, Per Saland (Sweden); ‘Composition and Administration of the Court’, Medard Rwelamira (South Africa); ‘Investigation and the Trial’, Silvia Fernández de Gurmendi (Argentina); ‘Enforcement’, Rolf Fife (Norway); ‘Appeal and Revision’, Silvia Fernández de Gurmendi 8 For a detailed description of the organization of work of the Conference, see UN Doc A/CONF. 183/3, 12 May 1998.

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(Argentina); ‘International Cooperation and Judicial Assistance’, Phakiso Mochochoko (Lesotho); ‘Penalties’, Molly Warlow (U.S.); ‘Assembly of States Parties’ and ‘Financing’, S.R. Rao (India); and ‘Final Clauses’, Neroni Slade (Samoa). With one exception, all of the working group chairs and coordinators in the Committee of the Whole had been delegates in the Preparatory Committee. Five of the chairpersons in Rome had also chaired working groups on the same subjects in New York. The allocation of subjects to the working groups covered all of Part 3 and Parts 5 to 10 of the draft statute. Plenary sessions of the Committee of the Whole directly considered Part 2, which contained the most politically difficult issues of the types and definition of crimes, the admissibility of cases, and the jurisdiction of the Court. The official working groups, the activities of the coordinators, and meetings of both ‘informal working groups’ and ‘informal-informal working groups’ met simultaneously. At times, some fifteen groups were meeting at different times and places on any given day. The short time for the Conference absolutely required that areas of disagreement be broken up into fragments for different groups to consider simultaneously. However, the large number of these negotiating venues and their simultaneous meetings without the presence of interpreters meant that many delegations, especially small ones, could not attend all of the meetings. This obstacle, combined with the inexperience of many of the delegates, roused complaints, some of which still continue, about the transparency and credibility of the Conference. The only recourse was that delegates had an opportunity to disagree when the Committee of the Whole considered language submitted to it from the Working Groups as having been agreed for approval or in cases of reference to the Drafting Committee. VI. The Drafting Committee The Drafting Committee started with the text forwarded by the Preparatory Committee. This text contained 116 articles in 173 pages, including 1,300 brackets containing passages of disagreed language. The Committee of the Whole had to agree upon and resolve these passages in only twentyfour working days.9 As bits and pieces of newly approved language came 9 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the



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in, the Drafting Committee was responsible not only for fitting them smoothly into the existing text, but also for creating compatible versions in all of the official languages of the United Nations. Since time was so short, the Drafting Committee could not wait for bits of agreed language to be held in working groups until they could be logically integrated. Instead, agreements as short as a paragraph were immediately forwarded to the Committee of the Whole for final consideration and transmittal to the Drafting Committee. The Drafting Committee then had to edit and translate these fragments as they came in, gradually assembling longer passages as further pieces arrived. Toward the end of the Rome Diplomatic Conference, the Committee was hard-put to keep up with the flow of approved provisions as end of the Conference approached. In the last few days, the Drafting Committee was in almost continuous session. In some cases errors, particularly in Chinese and Arabic, had to be corrected after the Conference. A few technical problems and internal inconsistencies also had to be fixed as the United Nations prepared final official versions of the text. Nonetheless the Committee’s extraordinary performance gave delegations confidence that a genuine and intense effort was under way to get the text right in their languages. Although participants complained at the beginning that the Committee was composed not of language experts but rather of professional diplomats, in the end this makeup turned out to be one of the Committee’s strengths. The diplomats were almost always highly educated men and women both in their own and foreign languages, who also had extensive grounding in the complicated conceptual and technical issues that the Statute addressed.10 1. Cherif Bassiouni Thirty years in expert work and activities on international criminal law had made Cherif Bassiouni a central figure in the long history of the struggle to achieve an international criminal court. Not only had he been a vice-chairman of the Preparatory Committee closely familiar with the draft statute it had produced, but he also possessed extraordinary skills in the drafting of treaties and

Establishment of an International Criminal Court, UN Doc A/CONF.183/2/Add. 1, 14 April 1998. 10 Interview with Philippe Kirsch. See also M. Cherif Bassiouni, The Statute of the International Criminal Court (Ardsley, NY: Transnational Publishers, 1998), 26, 30–31.

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international legal documents. It was therefore fitting for Bassiouni to chair the Drafting Committee. A professor at DePaul University in Chicago and president of its International Human Rights Law Institute, Bassiouni was born in Egypt and educated there as well as in France, Switzerland, and the United States. He was physically imposing and had a strong personality, which was often willful, driven, and impatient. These characteristics alienated some but were recognized by many others as the source of his enormous intellectual and physical energy and his almost complete imperviousness to discouragement.11  Early on he had recognized the importance of institutionalizing study and research in and advocacy of international criminal law. Accordingly, he was one of the founders in 1972 of the International Institute of Higher Studies in Criminal Sciences in Syracuse, Italy, and had been its president since 1988 at the time of the Rome Diplomatic Conference. He had helped to strengthen and expand the International Association of Penal Law and served as its president from 1989 to 2004.  Between most sessions of the Preparatory Committee, he convened intersessional meetings in Syracuse to work specifically on language as well as on highly contested issues. As intended by Bassiouni, representatives of nongovernmental organizations, governments, and UN officials attended these meetings on equal footing. In a relaxed setting free from the formal procedures of the Preparatory Committee, participants were able to search for solutions in informal and wide-ranging discussions. It was particularly helpful that many government delegations in these meetings were not encumbered with instructions. They could work for outcomes, which they believed their capitals might be persuaded to accept. Language and proposals from these intersessional meetings would usually be presented to the Committee in a document proposed by a specific government. The Committee would therefore regard the document as holding official status, as it was technically a proposal by a nation.  Bassiouni’s political shrewdness and skills served to maintain his good relations with the government of Egypt, on whose delegation he served during the negotiations, and although he was an expatriate, his work led to his appointment as a consultant to the Departments of State and Justice on a number of international legal issues. In addition, the United Nations appointed him to several special envoy positions and chairmanships of committees making special investigations into particular international human rights situations. He was the author of twenty-two books written in four languages on international legal subjects and of several draft international conventions on human rights

11 Philippe Kirsch, “Cherif Bassiouni and the International Criminal Court”, Revue International de Droit Penale 75, no. 3–4 (2004), 695–7.



the rome diplomatic conference103 issues, including two of the proposed statutes for the International Criminal Court. During the negotiations, his expertise in civil, common, and Islamic shariah law made him an ideal intermediary with delegations concerned or aggrieved that their domestic legal systems were not being sufficiently represented in the drafting of the Statute.

VII. The First Stages of Negotiations Of the main actors participating in the Rome Diplomatic Conference, United Nations staff (along with most of the Bureau) and the respective working group chairs and their coordinators had all been well represented in the Preparatory Committee sessions in New York. One exception to this was Kirsch, who, nonetheless, was very well-known from his work in New York and at other conferences. Among nongovernmental agencies, both the CICC and the delegations of its individual members had many people who had attended the Preparatory Committee negotiations. Only the governmental delegations had relatively few representatives who had participated in New York. As the General Committee and the Committee of the Whole began the next phase of work, the continuity from the Preparatory Committee, the hot days and ever-lengthening hours which kept people together in the building, and the exciting realization that a growing majority promised a real prospect of success encouraged a sense of community and common purpose, which drew in many of the newcomers more and more. The political groupings identified in the Preparatory Committee maintained their broad characteristics at the Conference. The Like-Minded Group of states strengthened its leadership role throughout the negotiations and grew from forty-two to more than sixty states as it abandoned its fear of expansion. This group was the only one with a complete operational strategy. It planned and thought through the entire progress of the Conference. All its key meetings were carefully prepared, and its issue subgroups, meetings, and briefings for smaller delegations were well organized. The Group had also designated issue coordinators early in the meeting. Several other delegations (France, India, and the United States, for example) or groups of delegations (Arab states) regarded its leadership as unfair, exclusive, or uncompromising. Most nongovernmental actors argued that the constant efforts of the Like-Minded Group to accommodate others threatened and would ultimately sacrifice vital principles of

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the ICC Statute. As the negotiations concluded, it was clear for all, however, that the Group had efficiently led the negotiations to their success. This necessary broad support was gathered in exchange for substantial but limited concessions. The Non-Aligned Movement played an active role in the first stage of the negotiations. Its membership seemed to unify around a strong India and a group of Gulf States. A substantial number agreed upon two principles of the Non-Aligned Movement: the inclusion of nuclear weapons in the list of prohibited weapons, and the absence of control by the Security Council. However, cohesion faded as the negotiations progressed and positions were fine-tuned. Many governments stated that, although they strongly favored one or both of these principles, they could agree with one of the compromises offered on them. The leadership of the Non-Aligned Movement did not build on these two basic principles and did not succeed in providing leadership when bargaining began. Members of the NonAligned Movement soon began to group regionally (African and Arab states) or joined the Like-Minded Group. Early in the Conference, a group of Arab states (Lebanon, Libya, and Syria) was conspicuous for its many objections, proposals, and amendments, in particular to sections debated at length during the preparatory process. Many other governments saw their attitude as obstructionist.12 However, the source of many of their interventions turned out to be twofold: linguistic misunderstandings due to recurrent translation inaccuracies and the lack of long-term involvement by these states during the early International Criminal Court negotiations. Several delegates spent time personally reassuring and explaining technicalities to these Arab representatives, which proved to be an approach that solved many problems. The Norwegian Rolf Fife, an experienced and skillful career diplomat, employed his remarkable language abilities to discuss troublesome issues with Middle Eastern representatives in fluent Arabic. All of Europe, with the exception of France, was united within the LikeMinded Group. Initially, European countries had not envisioned a consolidated EU position because France, and to a lesser extent the UK, kept a narrow ‘P5 vision’ of the jurisdiction and powers of the Court. In the end, however, the UK kept faith as a member of the Like-Minded Group, and France joined with it in voting for the Statute after obtaining a final concession on the scope of the Court’s jurisdiction. 12 See Terra Viva 14 (2 July 1998).



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The United States never accepted the idea of international criminal responsibility for, or the focus of the Court on, individuals from all states. The U.S. delegation repeatedly expressed its government’s feelings that the conduct of the negotiations had been unfair and that compromise had not been sought hard enough. The tone of the delegation even became threatening at the turning point of the negotiations. Nonetheless, in what came to seem an irony, representatives of the U.S. Justice Department made genuinely important contributions in the areas of penalties, procedure, and enforcement to several key sections of the Statute.13 The United States delegation would have been prominent and influential in the Rome Statute negotiations under any circumstances. It was a permanent member of the United Nations Security Council with considerable influence over the other permanent members. It had strong leverage over many UN members both through bilateral relations and also through its power in multilateral diplomacy at the United Nations. Moreover, many participants in the negotiations believed that the United States had the power and ability to either prevent the creation of the International Criminal Court or limit it so severely that it would be ineffective. This belief persisted as the U.S. approach to the negotiations remained obscure and inconsistent. On 1 May 1998, representatives of American nongovernmental organizations met with Walter B. Slocombe, undersecretary of defense for policy, in the office of the secretary of defense, William Cohen. He told them that there must be an ironclad guarantee that no U.S. service member would ever appear before the International Criminal Court and that this was a fixed position of the United States. He repeated this position later to two other nongovernmental organizations and government representatives. From this episode, it was widely understood in Rome that the United States could never agree to the kind of court the majority in the Conference wanted or came to want. It also

13 The U.S. delegation later complained that it had been confronted at the last minute with fresh text that contained new and unacceptable provisions. These provisions offered the chance for states to choose to be exempt from the Court’s jurisdiction over war crimes for seven years from the date of depositing their ratification, included terrorism and drug trafficking as crimes after further definition, and forbade reservations to the statute. See David J. Scheffer, Ambassador-at-Large for War Crimes Issues and head of the U.S. delegation to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of a Permanent International Criminal Court, Statement before the Com­ mit­tee on Foreign Relations of the U.S. Senate, 23 July 1998, available through the NGO Coalition for the International Criminal Court (online): www.igc.apc.org/icc.

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foreshadowed the anger in the Defense Department during the closing days in Rome and its behavior with other states at that time.14 VIII. David Scheffer and the Position of the United States The importance of the United States as the negotiations proceeded was shaped, intensified, and given a special character by the background, personality, style, and range of skills of David Scheffer, who was first the Deputy Chairman of the delegation and, after 1997, its full Chairman. These characteristics largely explain general American diplomacy in the negotiations, which frequently puzzled other participants. An understanding of Scheffer’s characteristics also sheds light on his strategy for dealing with the ignorance and indifference in Washington often exhibited toward the negotiations. This diplomacy and the strategy led to the surprising endgame in Rome, which left the United States isolated in voting against the Statute after having made fundamental contributions to its strength, viability, and comprehensiveness. As mentioned, these were especially important on penalties, procedures, enforcement, the definitions and elements of crimes, and jurisdiction. Scheffer entered the history of the Rome Statute in 1993 after becoming Senior Adviser and Counsel to Madeleine Albright, who was at the time the U.S. Permanent Representative at the United Nations. In 1997 he became the first U.S. Ambassador at Large for War Crimes Issues, an assignment that lasted until the end of the Clinton administration in 2001. The impact of Scheffer’s expertise in international law concerning atrocities and his high intelligence were enhanced by his determined manner and the physical presence of strength and command that seemed to take up the space around him.15 The fundamental problem for Scheffer, as it would have been for any head of the American delegation, was that the United States insisted that the International Criminal Court must not be able to try Americans without U.S. consent. Since other countries in the negotiations would obviously never agree that the Rome Statute give this privilege to the United States alone, any nation would be able to keep the Court from trying its citizens. This would mean that any suspect could protect himself from the Court by getting his government to withhold its consent. This demand 14 Interview with Richard Dicker. 15 Interview with Sabelo Sivuyile Maqungo. .



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collided directly with the vision, held by a growing number of negotiating states and by international civil society, of the ICC as a true criminal court with the independence and confirmed ability to try atrocity criminals from anywhere in the world. Scheffer’s task was to find a way to bypass this collision with a new compromise that would be acceptable in New York or later in Rome, and, although somewhat less than the full demand, would also satisfy Washington. In every session of the negotiations, including those of the Rome Diplomatic Conference itself, the United States had the largest delegation. It had representatives from all of the concerned departments and agencies of the U.S. government as well as from Congress. Among Congressional staff sent to the delegation were representatives of hostile legislators such as Jesse Helms, Chairman of the Senate Foreign Relations Committee.16 The delegation also included a number of experts and distinguished persons from outside government. Many of its members were important in the delegation’s conduct of American diplomacy in the negotiations, and in its efforts to make Washington understand the events and psychology of the negotiations, and to better adapt U.S. positions to them. However, as ambassador for war crimes issues, Scheffer enjoyed a much greater autonomy, freedom of action, and room for maneuver than his colleagues, who were sometimes confined by the interests and perspectives of the departments they represented. Being raised in his hometown of Norman, Oklahoma, was a source of pride for Scheffer.17 The town is dominated by the University of Oklahoma, where his father was a professor of political science for fifty years, including a long term as chairman of the Department of Government. Scheffer’s mother held an M.A. in English literature. This experience of growing up both in the United States heartland and also in this household of academic and intellectual achievement gave him a strong identity as an American and prepared him for the education and opportunities through which he became an important member of the American legal and foreign affairs establishments. Scheffer’s professional grounding and career gave him extensive inside knowledge of the topmost levels in the American legal profession, official 16 Interview with Charles Brown. See also David Scheffer, All the Missing Souls (Princeton: Princeton University Press, 2012), 3, 229. 17 Statement of David Scheffer, “No Safe Haven: Accountability for Human Rights Violators in the United States.” Senate Hearings 110–548, 14 November 2007, Northwestern University School of Law, Chicago, IL. J-110-63.

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Washington, and the United Nations. After earning undergraduate degrees from Harvard and Oxford and a law degree from Georgetown University, he was an associate for eight and a half years with Coudert Brothers, a ‘white shoe’ law firm of high standing and great prestige in New York. Four years of this service were spent in the firm’s Singapore office where one of his clients was a humanitarian relief organization working in Cambodia. He developed an interest in the nation itself and its local atrocity crimes, and, years later, this body of experience was to make him a central player in creating the Cambodia Tribunal. With a growing interest in public international law, Scheffer moved from Coudert Brothers to be a lawyer on the staff of the House Foreign Affairs Committee. Thereafter, in the four years before the Clinton administration, he was with the Carnegie Endowment for Peace specializing in international law and foreign policy. This positioned him to work on the foreign policy team of the Clinton presidential campaign. Campaign teams of a successful candidate frequently set up their members to take positions in the following administration. Hoping for this, Scheffer applied to the Clinton transition team and received an invitation from Madeleine Albright to help her with her confirmation by the Senate as U.S. Permanent Representative to the United Nations. She liked his work and took him on her staff in her Washington office. Scheffer had followed successfully one traditional path from law school to a senior official position in foreign affairs. The U.S. ambassador to the United Nations serves in the Cabinet, and therefore is a member of the Principals Committee of the National Security Council, which is composed of the secretaries of Cabinet departments. The work of this committee is supported by a Deputies Committee. Scheffer, as Albright’s representative on the Deputies Committee, found himself in the middle of almost all the major and many minor foreign policy issues of his time. Albright expected him to represent and protect  her interests. These responsibilities were a thorough training for him in the informal and formal processes, which together led to decisions and policy for the conduct of American international relations. They were also a considerable experience with the politics and operations of the United Nations and the ways of the Security Council and the General Assembly. Much of this work on the Deputies Committee had to do with war crimes and atrocities in Yugoslavia and Rwanda. This suited Scheffer’s long-standing interest in such crimes and how to deal with them. Recognizing this, when Madeleine Albright became Secretary of State in



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the second Clinton administration, she created for him the new position of Ambassador at Large for War Crimes Issues. In this position and with this background, he was in many ways ideally suited to head the American delegation to the International Criminal Court negotiations. However, he had never been a diplomat, and had never participated in the creation of a treaty through multilateral diplomacy. His approach to negotiating was more in the style of a senior lawyer than of an ambassador. Most of his counterparts on other delegations, particularly those of major countries, had represented their countries in negotiations on other large-scale treaties such as those on the law of the sea, landmines, and intellectual property. They had mastered a variety of negotiating techniques and approaches, understood the importance of recognizing and coming to terms with the national interests of other countries, and realized the emerging power and influence of civil society as it organized itself in new ways to participate in treaty making and multilateral diplomacy. From the first day, Scheffer worked hard and mastered most of these skills and insights he needed to have. He learned to make himself available to the representatives and meetings of nongovernmental organizations. His commitment to improving the Statute, his extensive knowledge of relevant international law and his intellect won wide respect for him. He quickly got better in cajoling and persuading, and many of his colleagues found him personally engaging and pleasant. However, for some, there was always a hint of exasperation at others’ resistance to the American position, and a little too much muscularity in responding to disagreement with American objectives. IX. The French Delegation The French delegation was tripartite throughout the Preparatory Committee and the Rome Diplomatic Conference, with members of the Ministry of Defense, the Ministry of Justice, and the Ministry of Foreign Affairs, which headed the delegation and was responsible for good coordination with the Justice and Defense Ministries. In-house discussions seem to have been the most difficult aspect of all for the French delegation because of the internal political and structural circumstances within the French government. In this regard, a strong parallel could be drawn with U.S. internal difficulties to establish a national position on key issues until very late in the negotiations. In particular, the minister of defense had a

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more direct access to the President through the personal military adviserin-chief of the President, as the Presidency has direct oversight of the army in France. In November 1994, the ILC project arrived at the Ministry of Justice’s Department of International and European Affairs. In January 1995, there was a first interministerial meeting. At the time the project was seen as an ‘academic exercise’—deemed le serpent de mer—as something that would never come to be.18 By the time of the Ad Hoc Committee in 1995, the Ministry of Foreign Affairs, led by Alain Juppé, who was in favor of the ICC negotiations, took the lead on them. The French delegation received favorable instructions from its government. The delegates representing France at the AHC meetings were Jérôme Bonnafont, from the Ministry of Foreign Affairs, Hubert Legal, from the Permanent Mission in New York, and representatives from the Ministry of Justice. France’s position was to stick to fundamental crimes and obtain mandatory jurisdiction for the core crimes. Among the P5 members at the April 1995 session, France held the most favorable position on the ICC. In August 1995, a cold wind blew on the negotiations. The Ministry of Defense, which had not been involved in the April session, became aware of the negotiations and responded that it opposed the project of the ICC. A first arbitration by the Prime Minister between the Justice and Defense Ministries occurred in September 1995. This arbitration came about in the aftermath of accusations in July 1995 against French General Bernard Janvier, head of the UN peacekeeping force in the former Yugoslavia, concerning his response to the Srebrenica massacre, an atrocity in the conflict in the former Yugoslavia, which a UN force failed to prevent. This event triggered the close involvement of the Ministry of Defense and the President. The military was now on alert and the Ministry of Defense became represented at the Preparatory Committee sessions. Eight internal arbitrations took place between September 1995 and April 1998. Each was almost systematically lost by the Justice and Foreign Affairs Departments. The Ministry of Defense won all arbitrations barring one, which took place prior to the Preparatory Committee session in April 1998. This April arbitration produced a mixed outcome, which constituted an important shift in the French position. Lionel Jospin and Alain Richard of the Ministry of Defense, Élisabeth Guigou from Justice, Hubert Védrine 18 Interview with Gilbert Bitti.



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from Foreign Affairs, and their chiefs of cabinet attended the meeting. Védrine was not a strong supporter of the Court, while Justice’s Guigou was close to and influenced by Defense’s Jospin. In this arbitration, the Ministry of Justice proved favorable in securing the rights of victims in trials and also in support of the Singapore proposal, which placed limited obligation on the Court to accept Security Council requests for deferral of action on a case. However, it lost to the Ministry of Defense on the issues of the provision of security information to the Court and on its jurisdiction over war crimes.19 A final arbitration in July 1998 saw a second shift in the French position during the Rome Diplomatic Conference. The most important part of this was acceptance of the South Korean proposal concerning which countries with connections to a crime or criminal could trigger the jurisdiction of the ICC.20 In this position reversal for the Ministry of Foreign Affairs, France now came to oppose a weak court. The political weight held at the time by the French Minister of Justice Guigou was significant for many reasons. As early as 1996, the Ministries of Justice and Foreign Affairs used victims’ rights and the importance of this issue under French legal tradition as a strategy against opposition to the ICC. Support for the issue improved France’s public image and gave more standing to the Ministries of Justice and Foreign Affairs in general. Promoting the French legal tradition—victims’ rights and participation in particular—was a key strategy to move the French position on core issues by using procedural questions. Many contributions by France were made in accordance with their priorities: balancing the powers of the Prosecutor with the Pre-Trial Chamber and reinforcing the independence of the Prosecutor against powerful states. The skilled acting head of the delegation throughout the Preparatory Committee and Rome Diplomatic Conference, Béatrice le Fraper du Hellen, was a charismatic and sociable diplomat known to all delegations. She made it possible for France to appear positively, as an engaged and proactive delegation. Governments from the Like-Minded Group in particular received the French delegation more warmly than they would have based on the position it took on several key issues. For instance, France presented a proposal on Article 15 on the Prosecutor’s proprio motu powers (the ability to act on one’s own initiative) that was essential to guaranteeing victims’ direct participation and access to justice in trials. The social 19 See Article 72 of the Rome Statute on security information provisions and Article 124 of the ICC Statute on the Court’s jurisdiction over war crimes. 20 Interview with Gilbert Bitti.

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and diplomatic skills of le Fraper du Hellen probably made a formidable difference in other governments’ perception of the delegation’s position and compares favorably with the approach to the negotiations by David Scheffer, who was put in a similarly difficult position. X. The Canadian Delegation and Conference Leadership By the time Canadian Foreign Minister Lloyd Axworthy took office in 1996, he had already begun to create a concept for a post-Cold War Canadian foreign policy. Its core elements were the doctrine of ‘soft power,’ the idea of ‘human security,’ ending the need to take sides in the Cold War, and the long-standing and traditional Canadian commitments to peace, the United Nations, and the multilateral resolution of international problems through collective mechanisms. The idea of soft power had been developed by Joseph Nye, a Harvard professor and Senior Official of the Department of Defense, in a series of writings and books from the early 1990s.21 By the time of the Rome Diplomatic Conference, soft power generally referred to a nation’s ability to achieve its interests by persuasion and attraction of other states, rather than by military or economic coercion. States that were seen to possess soft power could use it to further their interests and achieve their international objectives through multilateral institutions and processes, and this method was most effective when the state’s culture, values, and institutions were also admired and respected by other nations. In this way, states not considered to be major powers could prevail internationally much more than their size and standing would appear to permit, especially when these states worked together collectively in organizations and negotiations internationally. The notion of human security came from the proposition that international action and organizations should focus on individuals as much as or even more than on states. This is the same belief that powered Kofi Annan’s passionate commitment to the International Criminal Court. Like Annan, Axworthy was deeply engaged in the campaigns at the United Nations for its Millennium Development Goals and the responsibility to protect its nationals from atrocities and abuse. The latter was especially relevant to the Court because it defined the international community’s responsibility to protect populations from gross abuse, even by their own governments. 21 Joseph S. Nye, Jr. “Soft Power”, Foreign Policy 80 (Autumn 1990), 153–171.



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An important feature of this approach was the premise that nongovernmental organizations or civil society represented individuals and must be allowed to bring to international negotiations, through full participation, their culture, strengths, and ability to influence governments. It was clearly no accident that soft power and human security were important features of the negotiations for the Rome Statute. The positive results of implementing soft power had already been confirmed in the success of the Ottawa Process negotiations to achieve the Mine Ban Treaty in Canada in 1997 notwithstanding that these negotiations took place within a set time period, with a firm deadline, and deliberately without any requirement for adoption by consensus. However, it is significant that none of the major players in the Rome Statute negotiations, and particularly not its leadership, found it necessary to make changes in the rules and procedures of the United Nations for the Conference, which already had enough flexibility to permit the inclusion of the Ottawa features in a process that was otherwise structured to proceed along traditional UN lines.22 Shortly after Kirsch accepted the chairmanship of the negotiations, he and Axworthy, who knew each other well, conferred at length.23 The two men readily found themselves in agreement that the negotiations had to be a success and achieve a court that would fulfill the vision of the likeminded states, which Canada was leading. Axworthy told Kirsch that he would have the full support of the Canadian government. Thus, Kirsch, like Hans Corell, was assured of the committed backing of his leader. Axworthy’s relationship with Kirsch, and his position as an official of the Canadian government, led to early accusations by the United States and others that the Chairman was biased and would insist on pushing the negotiations through to the kind of court that civil society and the likeminded states wanted. These suspicions were heightened at the end of Rome by the belief of the United States that it had been excluded from some private meetings of governments that Kirsch had convened and by the late release of the final package draft of the Statute. In retrospect, it is possible that Kirsch might have been able to counteract the impression left by these events. However, most observers considered that Kirsch’s chairmanship overall was fair and balanced and that he and most of the  like-minded states would have much preferred for the negotiations not to end in opposition to the United States. It was only when it became 22 Official Records, Vol. II, 51 et seq. 23 Interviews with Valerie Oosterveld and Darryl Robinson.

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painfully evident that the United States would not agree that the Court’s jurisdiction should be free from the consent of member states and Security Council control that interest in the inclusion of United States began to lessen. The Canadian delegation had only ten members, a small number to cover the extensive interests of Canada in the Rome Statute. The presence of Canada’s top experts on the various issues being dealt with by the delegation and in the Rome Diplomatic Conference meant that many good decisions could be made on the spot in Rome on behalf of the Canadian government without the need to refer back to Ottawa. Before each session the Canadian delegation received general guidance from the Foreign Minister through a memorandum, which he approved. Throughout the different Preparatory Committee sessions and the Rome Diplomatic Conference, there was also a point person back in Ottawa to provide additional support to the delegation as needed.24 XI. NGOs The NGO Coalition for an International Criminal Court was prepared and organized for the Conference. CICC convener Bill Pace and the coalition’s Steering Committee had planned for a shift in the group’s tactics to adopt a more aggressive campaign mode. For that purpose, they designed a new organization of work. The coalition set up thirteen teams to cover each part of the Statute. As a result, experts took more responsibility to convey daily insight, information, and analysis to all present. This new technique increased the sense of responsibility and solidarity—something newcomers to the Preparatory Committee meetings sometimes believed to have been missing—among NGO participants at the Rome Diplomatic Conference. Aside from the particular benefits it afforded NGOs, this shared coverage, together with an extended meeting schedule and the confinement in the FAO building by very hot weather and little time, also made it much harder for Conference delegates to avoid the presence of NGOs in Rome. NGO leaders retained their consultative role there. From the start of the Conference, Chairman Kirsch was eager to keep NGOs on his side and at times took pains to avoid losing their strong support. Kirsch said it was the first time in his long experience as a multilateral negotiator that NGOs had 24 Ibid.



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been so close to the heart of negotiations and as such were able to exercise considerable pressure. He also highlighted their key educational role, which allowed the fullest participation of smaller delegations. This was essential to gathering sufficiently wide support for the text, which in turn was key to success and the only way that the package deal approach, eventually chosen by the chair, could work. He booked time for weekly private meetings with selected international and Canadian NGOs. When his package deal papers were issued, NGOs raised substantial concerns, but they always supported his initiatives. NGO leaders all deeply trusted Philippe Kirsch. His straightforwardness and radical style fit well with the NGO vision of the ideal chairman. Most of the Like-Minded Group’s key actors of the negotiations had a positive assessment of the role of NGOs in Rome. It was necessary to assist smaller delegations because the established working group system placed them at a disadvantage and was perceived by some to be undemocratic. Perpetual time constraints and the pressure to finish tasks in one sitting often dictated the conduct of the Rome Diplomatic Conference, and all LMG players agreed that postponement was a risk too high to take. NGO contributions such as servicing smaller NGOs with position papers, analysis, and daily summary accounts of the negotiations were therefore invaluable to them. Three daily NGO publications, Terra Viva, On The Record, and the CICC Monitor, played a major role in political advocacy during the Rome Diplomatic Conference.25 They exemplified the synergy between likeminded positions and NGO advocacy initiatives building on Chairman Kirsch’s negotiating technique of compiling a package of proposals for the final draft text of the Statute. The three CICC-sponsored publications provided the only daily news accounts of the Conference. As President Kirsch put it: The high level of cooperation and coordination among CICC members ensured that, even during the most hectic days in Rome, all sets of negotiations were followed, analyzed and reported upon—not only to civil society, but also to governments.26

25 Terra Viva 19 (9 July 1998). Terra Viva was the newsletter at and about the Rome Diplomatic Conference, published by Inter Press Service, available online: www.ips/org/ icc. Bound into it but editorially independent was the International Criminal Court Monitor, available online: www.igc.apc.org/icc. 26 NGO Coalition for the ICC, Rome Report: A Documentary History of the ICC Negotiations at the Diplomatic Conference in Rome, (unpublished), Preface.

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Prince Zeid of Jordan, a diplomat with extensive experience in multilateral negotiations, highlighted the significance of an NGO publication’s role in Rome at a critical moment during the negotiations when President Kirsch asked delegations to publicly express their positions on a set of key issues: M. Kirsch had asked all countries to make yes-or-no statements on all key issues that remained opened. The CICC kept a count reported in the overnight newsletter that showed 70% agreement in the Conference on twenty points the Like-Minded Group had identified as key to the Statute.27

According to him, these newsletters were extremely valuable, especially the CICC Monitor, which was produced overnight. Widely read and trusted, these publications quickly became a common source of information. In addition to this, the common experience of reading the newsletters could be said to be a great unifying factor at the Conference. XII. The UN Secretariat and Support Staff Legal Counsel Hans Corell and Roy Lee’s Codification Division office remained the nerve center of UN Secretariat support in planning and organizing all aspects of the Rome Diplomatic Conference. At this stage, they led a team of 140 staff members drawn from the UN offices in Geneva (from the Documents and Conference Services divisions) and Rome (Security) along with their colleagues from the UN Headquarters in New York who had served all the sessions of the Preparatory Committee. As in New York, the UN’s lack of funds complicated the Conference’s logistical management and therefore added substantially to the stress and lack of sleep of the Conference staff and the Drafting Committee. To save money, most documents were translated in Geneva and occasionally in other UN sites. There was constant electronic transmission back and forth between these locations and Rome. This time-consuming process became increasingly difficult to manage toward the close of the Conference, as the pace of debate quickened and the flow of agreed texts swelled. The final critical issues in the debate were subject to frequent changes in wording. Especially toward the end of negotiations, UN staff was required to constantly assess their priorities among the documents and balance the need to exercise diplomacy in their relations with the remote translators. 27 Interview with Zeid Ra’ad Zeid Al-Hussein.



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This extraordinary feat was generally successful, but nonetheless meant that fundamentally important documents had to be presented in several simultaneous pieces; this inevitably led to occasional mistakes in translation, especially in Chinese and Arabic. The strong personal commitment and involvement of the secretarygeneral was reflected at all levels in the support given daily by core representatives—and by all UN staff—to the chair and officers of the Conference. The UN was not simply a neutral convener and, to the contrary, often weighed in on the side of Chairman Kirsch in pursuing the common goal of achieving a successful meeting. The secretary-general’s strong speeches, his presence at both the opening and closing ceremonies of the Conference, and his attention to daily developments made it clear that a positive outcome was essential for the UN.

CHAPTER FIVE

THE DRAMA OF THE FINAL DAYS The life of the Rome Diplomatic Conference was only five weeks. Many voices have been raised over the effect of this brief time on the work of the Conference and the nature and shape of its negotiations. The question of the time available was an issue at the Conference itself. In the final weeks there were proposals to recess and resume the Conference, and there were also assertions then and later that an early deadline accelerated the negotiations and was ultimately important to their success. Legislatures and similar bodies often use deadlines and time pressures to speed up their work and bring it to an end. However, because national legislatures are permanent, they can miss deadlines and still avoid damaging consequences through various techniques. For example, the United States Congress in recent years has regularly missed its deadlines for approving the national budget but keeps the government going through the use of continuing resolutions. Legislators who only need a few extra hours or days past the deadline have been known to resort to simple methods such as literally halting the hands of the clock in the legislative chamber. The Rome Diplomatic Conference did not have these options. It was not a permanent body and had to leave the FAO building at the prescribed time to make way for other events. For these reasons, as well as the imperative need to retain the final momentum of the Conference, Kirsch could not entertain a request from the United States delegation to extend the Conference for two or three more days. After a recess the Conference would not have been the same. A good many participants would be new and the relations among them and other actors would have changed. Moreover, as the opponents of a recess pointed out, the collective will and strong forward movement toward completing and adopting a text would stall without the forward pressure of vanishing time. The many members of the Conference with experience in negotiations also recognized that during a recess, positions would harden or change as governments had time to consider, the emotional and psychological pressure to complete a task in which so much had been invested

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would fade, and the sense of a special moment and the power of a collective will would diminish. The prospect of a recess, although always a threat waiting on the sidelines, never really took hold. The majority saw it as a proposal by nations like the United States that were believed to want the Conference to fail or at least to be indefinitely suspended. Ironically, concern about it made negotiators push on harder and speed up their search for ways to agree. With the five-week deadline, everyone attending the Rome Diplomatic Conference knew that time would be a constant factor and have a major influence on negotiation techniques employed there. They accepted as a given that the chair would attempt to use time and lack of time as a negotiating tool throughout the Conference. Ultimately, the swift pace of the negotiations exhausted delegates and, at the very least, weakened otherwise zealous filibusterers. Most delegates at first underestimated the need for a rapid pace of negotiations. However, lunch sessions were held from the first week of the Conference, simultaneous and competing afternoon informal meetings quickly became routine, and night and weekend sessions later followed. After the first two weeks of negotiations, the Rome Diplomatic Conference turned into a marathon. Delegates ate on the run and were often seen arriving at informal meetings with a small sandwich in hand or quickly chewing a panini in the small and smoky Polish Bar at three in the afternoon. This process managed at times to foster a bond and a sense of common enterprise among all actors. Being in the same boat and suffering together favored a relaxed etiquette. It also soon triggered complaints that the process was unfair. Smaller delegations once again felt excluded because they were absolutely unable to cover all meetings. As the pace of negotiations under tightening time became an aroundthe-clock sprint, the FAO building came to be home for many of the participants. The outside world receded. This intense experience, while it lasted, distanced those engaged in it from those outside it, such as colleagues in capitals. From the beginning of the Preparatory Committee, the negotiations had had a complex rhythm in the movement of issues, problems, and texts. They moved vertically up and down from the Bureau and the plenary, to and from informal working groups, facilitators, focal points, coffee and corridor conversations, caucus gatherings and debates, and converged in the adoption of resolutions in the General Assembly. This movement also seemed to alternate horizontally between the negotiating bodies and official, nongovernmental, regional, and caucus meetings held between



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sessions. By the time of the Rome Diplomatic Conference, the range of this dynamic rhythm seemed to compress itself almost entirely within the city of Rome, and specifically within the FAO building. Beyond Rome, government delegations reported to their capitals and conferred with them on instructions; nongovernmental organizations did their best to keep their headquarters, officials, and constituencies informed. Nonetheless, these contacts had to compete with a pulse that became more and more frenetic during the final days. The importance and implications of this rhythm, the sense of the enclosed experience, and the intensity of the collective will to complete the Statute were all aspects of the Conference that a good many delegations found difficult to explain effectively to their respective governments. By July, this heartbeat of movement began to bring the Conference alive and excite more and more of the participants. At the end of the first three weeks, it became evident that most of the working groups were completing their portions of the Statute. Kirsch then began to put pressure on Conference issue coordinators who were procrastinating and on delegations that were thwarting the push to reach consensus in some of the working groups. Sections of text moved ever more rapidly in a regular flow from lower-level negotiating units first to the plenary and then to the Drafting Committee. As this latter committee fit the pieces together, the shape of an ultimate statute text became visible for the first time. The rhythmic movement from debate on issues to pieces of text to a growing final document now appeared as a process of achievement that drew in most of the delegations that had been previously hanging back. I. Final Breakthrough On Sunday, 5 July, with two weeks left in the Conference, the curtain went up on the drama of its final days. On that day, Chairman Kirsch decided to convene a selective meeting at the Canadian Embassy of 28 of the 150 delegations selected to represent the views and positions of the Conference. He sought to identify the elements of a compromise statute, especially the key, widely disagreed, and highly political issues of jurisdiction and admissibility in Part 2 of the draft statute. He put on the table an informal ‘package deal’ paper containing what he thought were the majority’s positions on these elements. The meeting was intense and very much epitomized Kirsch’s daring initiatives and style as a chairman. He realized that he was gambling, as he

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said, “Whatever I do, I’ll look bad.”1 Meeting organizers retrieved the chairman’s discussion text from participants before they left the meeting room, both because of the selective and informal nature of the session, and because Kirsch and his advisers thought it strategically better that the text not go to capitals immediately. Criticism indeed came vehemently from a variety of groups and individual nations. The United States, in particular, viewed the meeting as a Like-Minded Group ambush and questioned Kirsch’s impartiality as chair. Several smaller countries later saw the meeting as undemocratic and exclusive, accommodating big and powerful nations only.2 Supporters of the meeting and of Chairman Kirsch have explained that the conference facilities at the Canadian Embassy could not accommodate a larger group. However, it appears more likely that the Chairman and his associates wanted a gathering that would be small enough to promote detailed and thoughtful discussion but would avoid the repetition of individual group and country positions that had stultified the negotiations on Part 2 thus far. The Chairman and his associates in the Bureau had been constantly conferring with individual and small groups of delegations about attitudes and positions on Part 2. It appeared from these conversations that many countries could discuss compromises in private, which they were not yet ready to discuss in formal public statements. Kirsch concluded that a small but representative meeting would promote compromise, or at least the refinement and integration of the discussion paper that he intended to present to the Committee of the Whole. The text discussed in the Sunday meeting appeared to the United States as favoring Like-Minded positions. On the same evening, Kirsch considerably modified the text in order to reflect some U.S. positions. On the following day, the Bureau issued the first comprehensive discussion paper on Part 2 of the Statute. The paper was a suggested compilation of provisions on all core issues, offering at least one and as many as three options for most of the crucial points. Its contents were controversial, but most states accepted this initiative by Chairman Kirsch as a necessary way to move forward on Part 2. This paper intended to narrow down the differences between government positions and thus lead to compromises, and, it was 1 Reported to the authors by several government and NGO representatives from their personal conversations with Chairman Kirsch. 2 Interviews with Darryl Robinson, Charles Brown. See also Philippe Kirsch and Darryl Robinson, “Reaching Agreement at the Rome Conference” in Cassese, et. al., eds., The Rome Statute of the International Criminal Court: A Commentary (Oxford; New York: Oxford University Press, 2002), 74 n. 23.



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hoped, to agreement. In the end, it did reduce the number of sharply differing positions. However, compromises proved impossible on such key and highly political issues as jurisdiction. Faced with this, Kirsch and the Bureau decided that the only way out was to determine the majority position on each such issue and fold these into a single ‘package’ document on which delegations would vote. There were some complaints in Rome, and there have been many more since then, that the package approach is unusual in multilateral negotiations, especially at the UN and in treaty making. There have been claims that the presentation of the package was a kind of ambush by Kirsch, especially intended to undercut the positions of governments like the United States. In fact, all of the elements of the package had been repeatedly discussed both in the Preparatory Committee as well as during the opening weeks of the Rome Diplomatic Conference. To almost all Conference participants, none of these elements was new. The only innovation in the package was the presentation of certain elements in different combinations that the drafters thought might ease their acceptance.3 From the start, most participants had anticipated a package approach to the most difficult political issues, as it clearly seemed to be the only possible way to progressively limit the number of options and to narrow differences. In fact, as early as 1996, participants in the Preparatory Committee had foreseen that the most controversial and political issues in the negotiations could be resolved only through debate on a package text. The package technique has, in fact, been used in other negotiations at the United Nations and elsewhere, such as those for the Law of the Sea Treaty. Nonetheless, this approach is still resisted at the United Nations because of the very strong preference there for consensus decisions. For example, the parliamentary rules for the General Assembly, the Preparatory Committee, and the Rome Diplomatic Conference all provided that every effort should be made to achieve consensus. Nonetheless, the rules for the Rome Diplomatic Conference did grudgingly provide for voting. Unlike the Preparatory Committee, the Rome Diplomatic Conference could not hand over disagreements to another negotiating body. If it could not adopt a statute by consensus, it would have to vote or end in failure. A package approach requires very strong leadership because a package will rarely command a consensus. If a consensus could be reached, there would usually be no need for a package in the first place. In some cases, 3 Interview with Darryl Robinson. See also Philippe Kirsch and Valerie Oosterveld, “The International Criminal Court”, 8–9.

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the weight of a very large majority position represented by a package will induce previously dissenting states to join in. Usually, however, some of the issues in a package are so controversial that its proposals will never persuade at least a few of its strong opponents. Because absence of consensus on a package means that it will be decided by vote, the leadership in and of meetings that opts to use this approach must also command the loyalty of a significant number of committed followers. As a strong majority builds on this loyalty, the sense of a need for consensus fades. States that felt excluded from the design of the International Criminal Court package or from the consultations among selected governments that developed the package were uplifted nonetheless by the rising tide of agreement at the Conference. If future packages are used successfully, especially in another UN-sponsored meeting to create a multilateral institution, the Rome Diplomatic Conference may well prove to have further diminished the UN taboo against voting or against the bureaus that deliberately plan for voting. The package is clearly a unique tool to overcome indefinite obstruction by those who do not wish to achieve either prompt results or any at all. For those at the Rome Diplomatic Conference, the final broad view concluded that the package approach was the only way to achieve a statute in five weeks. Nonetheless, the impression has persisted that resorting to a vote at the end of the Rome Diplomatic Conference was somehow improper or unacceptable. Chairman Kirsch has been blamed for making voting inevitable as a result of his use of the package. Critics of the Conference, especially in the United States, often thought that instead of voting, the Conference should have recessed and resumed later. In fact, the “Memorandum of the Secretary-General on the Methods of Work and Procedures for the Conference”, issued on 12 May 1998, noted that the draft’s rules of procedure allowed for voting and even established procedures for it, although it called on the Conference to make its best efforts to achieve decisions through general agreement.4 Voting at the Rome Diplomatic Conference was therefore neither a surprise nor illegitimate. On Tuesday, 7 July, the United States reiterated to the Bureau that it regarded the discussion paper as only representing the views of the LikeMinded Group. It raised again its familiar major objections to some fundamental parts of the document and warned that if the paper remained in 4 Memorandum of the Secretary-General on the Methods of Work and Procedures for the Conference, UN Doc A/CONF/183/3, 12 May 1998.



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its present form, the United States would strongly oppose it. The paper was intended to lay out the options that had significant support, and the U.S. complaint seemed to ignore the reality that the LMG position had been largely adopted by a considerable majority of the nations at the Conference.5 On the following day, Scheffer finally received fresh instructions from Washington approved by President Clinton. He had arrived in Rome with what soon became stale instructions, under which he had had to work throughout the sessions of the Preparatory Committee. Although Scheffer had made many efforts to reach the President directly and get a decision from him on the fresh instructions, Clinton had handed off to the National Security Council, which in turn had deferred to the Department of Defense.6 Accordingly, there was no way to either reconcile the positions of the Departments of Defense and State, or to present their disagreement in a decision memorandum to the President. Moreover, the President had been preoccupied with the events involving his affair with Monica Lewinsky, which eventually led to his impeachment trial in Congress. These distractions had accelerated in January 1998 with the authorization of independent counsel Kenneth Starr to investigate them. A number of senior administration officials compared the powers given Starr, which they bitterly resented, to those proposed for the Prosecutor of the International Criminal Court. Finally, but as it proved too late, Scheffer had succeeded in finding an ally in the National Security Council, who, despite these obstacles, was able to successfully extract instructions from the White House.7 Also beginning on Wednesday, 8 July, Chairman Kirsch opened the Committee of the Whole for a point-by-point discussion of his paper from the 5 July meeting, now presented as a document of the Bureau. In order to avoid another fruitless debate full of rhetoric, he requested at the opening of the session that states limit their responses to two sets of precise and detailed questions in the document about sharply defined issues. This technique narrowed the scope and length of answers and forced delegations to be specific. Each in their turn, delegations answered the same questions again and again, demonstrating the weight and support of 5 Official Records, Vol. II, 267–268, paras. 2–3. 6 Interviews with Thomas Pickering, Molly Williamson, and Eric Schwartz. See also David Scheffer, All the Missing Souls (Princeton, NJ: Princeton University Press, 2012), 197; and Ernna A. Paris, The Sun Climbs Slow: The International Criminal Court and the Search for Justice (New York: Seven Stories Press, 2010), 262–3. 7 Ibid.

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majority positions. Kirsch explained that these responses would allow for the completion of a further Bureau proposal that would bridge the gap between differences in positions in the hope that this would promote final agreements. It was understood that this proposal would contain items concerning Part 2 that had yet to be resolved, but which, in the Bureau’s judgment, had a large majority of the Conference in favor of them. It would be the responsibility of the last session of the Committee of the Whole to either resolve these disagreements or to vote on them. Thus, this draft, and the preceding questions and answers, would be the final two phases in the closing push to achieve a complete, final, and adopted text by the end of the session. 1. The First Set of Questions In the same meeting, Kirsch announced that the first group of questions would be about the exact categories of crimes the Court would try, and the second would be directed at the Court’s jurisdiction, how to determine a case’s admissibility, and the type of law the Court would apply. Opening the discussion on the first questions, he asked delegations to comment particularly on: the crime of aggression; the inclusion of crimes already defined by treaties such as in the case of terrorism and drug trafficking; whether there should be a criterion for judging the seriousness of war crimes; what to do about weapons designed to cause unnecessary wounding or suffering; should actions in domestic armed conflicts be war crimes, and if so, what would be the standard for their seriousness; and should more detailed definitions (elements) of crimes be negotiated after the Conference in an additional document. Although the questions were quite precise, they referred to portions of the draft text, which in turn presented options for the final text that could be adopted singly or, in many cases, in combination. These many possible outcomes had confused the debates so far and made reaching agreement much more complicated. The meeting and the Conference as a whole recognized that these questions of jurisdiction and admissibility were the intensely political issues that could no longer be postponed. The Conference would now have to resolve them and thus either complete the Statute or risk failure. Accordingly, the speeches and responses were more intense and the language sometimes stronger. A few of the positions were now more uncompromising. More delegations were, however, declaring flexibility in their positions and many were now choosing options or finding compromises by combining other options in ways that they had previously



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avoided. As delegates specified their preferred options and combinations of options, the debate became more focused. Because of consultations on the sidelines—often encouraged and assisted by facilitators or nongovernmental organizations—and new instructions from some capitals about these choices, many of the relevant issues began to exhibit clear majorities. There were regular spokesmen continuing to represent certain groups of nations and the numbers of supporters from each group for particular issues often remained the same. The spokesmen and the supporters were especially reflected in the detailed and extensive responses from China, Germany, India, Norway, Switzerland, the United Kingdom, and the United States. The statements from China, India, and the United States were often largely similar to each other. The U.S. statement, based on the fresh instructions from Washington, began with strong opposition to giving the Court universal jurisdiction. However, by this point in the negotiations, most of the participants accepted that the Court’s jurisdiction would be limited to the core crimes and to the states and persons specified in detail in the Statute. The United States once again vigorously rejected the possibility that the Court could try nationals of a state that was not party to the Statute. It insisted that the Court could have jurisdiction in this situation only if the state consented in advance or had otherwise accepted the jurisdiction of the Court and the particular case. The United States reasoned that by ratifying the Rome Statute, a state would automatically accept only the Court’s jurisdiction for genocide. Otherwise, the state would have the option to accept or refuse jurisdiction over crimes against humanity and war crimes. The United States abandoned its prior insistence that the Security Council authorize the Court’s consideration of a case in advance because it recognized that a strong majority of Conference participants opposed this requirement. The U.S. delegation would work with others to find suitable wording for the relationship of the Security Council with the Court. The United States added that if all of the American proposals taken together were accepted by the Conference, “the delegation would seriously consider recommending that the [United States] should sign the treaty at an appropriate time in the future.”8 These remarks were met with silent disappointment by many delegations that had hoped that at this late stage in the Conference, the United 8 Official Records, Vol. II, 297–298, para. 52.

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States would have modified positions it had held from the beginning of the negotiations in the Ad Hoc Committee. By this time it began to appear likely that a majority in the Conference believed that these American approaches would seriously weaken the Court. Although numerous delegations argued against the positions of the United States without so identifying them, only Malawi directly objected to the statement made by the United States. Its delegation thought it to be “unhelpful for powerful countries to attempt to force their point of view on the rest by threatening not to sign the Statute.”9 2. The Second Set of Questions On 9 July, the Chairman turned the debate to the second set of questions. The coordinator for these, Erkki Kourula of Finland, described the status of the various articles, defined their issues, and explained the specific correlation of these issues to the questions. The Chairman called for comments on: whether jurisdiction would be automatic for a state when it ratified the Statute; whether it could be partial, including case-by-case consent; whether the Court could exercise jurisdiction only over states that had ratified the Statute; whether states that had not ratified the Statute could voluntarily accept jurisdiction; whether the Prosecutor could start a case on his or her own initiative, and if so, what safeguards should there be; and the role of the Security Council on issues other than the crime of aggression. These comments by ninety-three countries took up six hours and twenty-five minutes in three sessions of the Committee of the Whole. Throughout this process, NGO representatives at each of these sessions of the Committee of the Whole tallied the positions of the delegations that had spoken; this data was then published overnight in special newsletters by the CICC to influence delegations the following morning. Nongovernmental organizations were thus an essential component of the success achieved at this stage of the negotiations in particular by their consistent dedication to keeping participants informed throughout the rapidly changing state of affairs.10 A ‘virtual vote’ technique revealed precisely where everybody stood. It left time for delegations to receive instructions from capitals over the   9 Official Records, Vol. II, 310, para. 91. 10 Glasius, The International Criminal Court, 41; The Rome Conference Treaty Monitor 21 (13 July 1998), 23 (15 July 1998), International Press Service, bound with Terranova 21 (13 July 1998), 23 (15 July 1998), No Peace Without Justice.



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weekend. Awareness of majorities building behind particular positions encouraged certain delegations to speak, join in these majorities, or, at the very least, ask their capitals for instructions to do so. The Chair explained that the information from this virtual vote would also allow for the completion of a final Chairman’s draft text to be released on Friday, 10 July.11 The carefully documented review of positions made it clear that there were large majority positions, but not consensus, on most issues. Participants began to envision that the Chair would have to put some of the essential issues to a vote. Most thought that with a package on the table, a second round of diplomatic negotiations to deal with unresolved substantive issues was unlikely to occur. The package renewed general optimism as a fuller shape of the treaty was finally emerging. As the eventual size of the developing majorities seemed to grow closer to a national consensus, the usual resistance to voting began to diminish. In the late afternoon of 16 July, the work of the Drafting Committee finally ended as the Committee of the Whole adopted the text of the Preamble to the Statute. Creating the Preamble had specifically been the task of the delegation of Samoa. It had proved to be especially difficult as it was the one place in the Statute where the motives for and the values and purposes of the Statute and the Court were expressed together. It proclaimed the unity of all peoples, recalled the atrocities of the twentieth century, and emphasized that these atrocities threatened world peace, security, and well-being. It declared that crimes must not go unpunished, that every state had the duty to try such crimes under the Court’s criminal jurisdiction, and that impunity for the perpetrators must end. It affirmed that the Court’s jurisdiction was limited to the most grave and serious crimes affecting the international community as a whole and, finally, that the Court would be independent and complementary to national criminal jurisdictions.12 The Preamble was the kind of declaration on which it was easy to have strong opinions, and many did. In this regard, differences in cultures and 11 In an impressive demonstration of determination and organization, the coalition collected, counted, and analyzed these “virtual votes” and published them on the early morning of Friday, 10 July 1998, in a special issue of the International Criminal Court Monitor. This drove home the sense of a snowballing majority, which encouraged timid delegations and starkly demonstrated the isolation of the United States. The United States later derided this virtual voting and, by extension, the package approach that it advanced, calling it “a numbers game” and “a rug sale.” James Podgers, “War Crimes Court Under Fire,” American Bar Association Journal 84 (September 1998), 69. 12 Text reprinted with permission: Fanny Benedetti and John L. Washburn, “Drafting the International Criminal Court Treaty”, Global Governance 5, no. 1 (2008), 30.

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historical experiences especially came to the fore. Samoa was a developing state with a sophisticated two-person delegation. This consisted of its permanent representative to the United Nations, Ambassador Tuiloma Neroni Slade, and Roger Clark, a distinguished international law expert at Rutgers University. Samoa was well placed to be seen as objective amid the diverse views expressed during the Conference. A caucus of religious, ethical, humanist, and spiritual movements that had formed within CICC further assisted the delegation in creating language and lobbying.13 Meanwhile, efforts to accommodate the positions of the permanent members of the Security Council continued informally as well as in more organized meetings. In particular, Hisashi Owada, the head of the Japanese delegation, convened on 12 July with Chairman Kirsch and a few other states to try to find a way to attract U.S. support for the final outcome of the Conference. The Bureau strongly supported Owada’s initiative as a bridge-building effort, which offered a final hope of a compromise with the China, France, the Russian Federation, and the United States. Some states, including a number in the Like-Minded Group, strongly disapproved of Owada’s effort; they considered it as likely to hold up the momentum toward or dilute an outcome that now promised a court close enough to their vision; some even feared that Owada’s efforts would result in a recess for the Conference without resolving the incomplete text of the document.14 Owada appeared to be acting on his own, although it is likely that he was within the general scope of his instructions, as Japan aspired to its own permanent membership on the Security Council. After the end of the Second World War, Japan had also endured the Tokyo trials of war criminals, which were the counterpart to the Nuremberg trials of Nazis. The Japanese felt strongly then and continued to believe that the Tokyo trials had been unfair and politicized. Moreover, Japan was uneasy with the prospect of an international criminal court without the restraint of American participation and did not want to be faced with a decision of whether or not to join the Court under those circumstances. Owada was from a prominent family in Japan with connections to the Imperial household. He was old enough to remember the Tokyo trials. He had had a phenomenally distinguished career as a diplomat and adviser to 13 Roger S. Clark and Tuiloma Neroni Slade, “Preamble and Final Clauses” in Lee (ed.), The International Criminal Court, 421. 14 Interview with Darryl Robinson. See also David Scheffer, All the Missing Souls, 210–211.



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both Prime Ministers and Foreign Ministers; he had also been a professor of international law in Japan and the United States. Since 1960, he had been either the head or a senior member of the delegations of Japan to most major UN conferences on treaties and international law. He had also been Japan’s Permanent Representative to the United Nations from 1994 to 1998. At the age of eighty, he would be elected President of the International Court of Justice for the second time. Owada’s central objective was to find a way to accommodate the insistence by the United States and other permanent members that non-states parties must consent to ICC trial of their citizens. He discovered that some of the P5 also wanted a consent requirement for the trial of citizens of states parties, so he broadened his proposals to include this requirement. In discussions then and over the next few days, Owada proposed a variety of formulas, such as transition periods with set time limits or protocols accompanying the Statute to be signed by states that preferred the privilege of consent. He also suggested concessions for states insisting on consent, such as the acceptance of an independent Prosecutor, since this would make any of the proposed formulas more acceptable to both the Like-Minded Group and the gathering majority at the Conference. States that still demanded that only genocide be within the automatic jurisdiction of the Court would have to agree to include crimes against humanity and war crimes. To further the progress made in the negotiations, Owada also emphasized one of the Statute’s provisions, which had already been agreed upon. This stated that the Security Council could refer a national of any state to the Court, thereby providing a way around the consent requirement. Many in this meeting were skeptical, foreseeing a flat rejection by the Like-Minded Group of a consent requirement in any form. This conclusion was strengthened by the reactions of several LMG participants in the meeting and by a growing certainty that, in the end, the United Kingdom and probably France would support the text of the Statute as it was now emerging. Scheffer shared this foreboding but saw in the various formulas a chance of at least inducing Washington to be somewhat more flexible about the consent requirement.15 On 13 July Owada held another meeting. Most of it constituted a discussion of the scope of automatic jurisdiction, and it inspired a flurry of proposals on how states might opt in or out of the Court’s jurisdiction on war 15 David Scheffer, All the Missing Souls, 213–214.

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crimes and crimes against humanity. At this meeting, the Representative of Cameroon made a passionate statement decrying these proposals for diluting the power of the Court at this eleventh hour in the Conference. On the following day, discussion of options and transitional periods continued. Sir Franklin Berman, the UK Representative, firmly declared his government’s opposition to any form of opting in. France made it clear that it would probably support adoption of the emerging text, even if only by an abstention in voting.16 Scheffer received further partial instructions from Washington on 14 July. In response to these, he held a press conference on 15 July. The nature of this conference and a letter from President Clinton to the Prime Minister of Italy both stressed American flexibility and the need for other governments to respond in kind. Both of these efforts once again ran into the hard reality that a consent requirement would allow the governments of atrocity criminals to protect perpetrators from the Court. The United States and other governments supporting consent now found themselves charged with weakening the Court. They responded by claiming that they were simply trying to construct the Court in another way. As the Confer­ ence accelerated toward its end, there was little chance of bridging this gap in perceptions. While Scheffer’s press conference was underway, a report spread among the delegates regarding certain talking points allegedly prepared for U.S. Defense Secretary, William S. Cohen, to use in threatening his German counterpart, Volker Rühe. The nature of the threat involved the removal of American troops from Europe if Germany did not change some of its positions on the Court at the Conference. By the time this report reached many ears, it had developed into a claim that Cohen had actually had such a conversation with Rühe. It was also claimed that Rühe had summarily rejected the threat. Whether in its original form or exaggerated, the report convinced many delegates that Washington was unaware or seriously misinformed of what was happening in Rome. This impression raised questions regarding Scheffer’s relationships with Washington, particularly with the Department of Defense, or whether the United States had any real interest in achieving a statute for the Court. Scheffer’s credibility in negotiating during these final hours of the Conference was therefore seriously damaged. Cohen’s office disowned the talking points, but at this stage, the damage had already been done.17 16 Ibid. Additional information from authors’ discussion with delegations. 17 David Scheffer, All the Missing Souls, 227.



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This impression of American desperation had been and was to be further strengthened in the last few days by urgent U.S. démarches in capitals and by Scheffer’s intense consultation with both individual and groups of nations. These nations rotated through a conference room to hear Scheffer’s arguments for the U.S. position. On the evening of 15 July, Russia convened another meeting, this time restricted to permanent members of the Security Council, with the goal of finding a common position. The ‘P5 proposal’ that they eventually agreed upon protected a citizen of a state not party to the Court from its jurisdiction subject to a severe condition. The government of the state would have to acknowledge that it had authorized the act alleged to be a crime. Also, the Court would have automatic jurisdiction over genocide. A state party wishing to have the right to consent to trials of its nationals for crimes against humanity or war crimes or both could obtain this privilege by signing a protocol, which would remain in effect for a maximum of ten years. The Assembly of States Parties could prolong the protocol by majority vote; however, when the protocol ended, nationals of all states parties would be subject to prosecution for all three crimes. In a small touch of drama, Scheffer received a phone call from Washington during this meeting, informing him that the Joint Chiefs of Staff had approved the P5 proposal. The next morning, Thursday, 16 July, the Permanent Five group met with Owada to charge him to take the proposal to the Like-Minded Group and the European Union. They stressed that acceptance of the proposal would permit them to actively support the Rome Statute. The effectiveness of this promise was considerably reduced by the widespread knowledge throughout the Conference that if the proposal failed, the United Kingdom and France would probably join the Like-Minded Group’s position. On Thursday afternoon, 16 July, Owada reported a complete fiasco to the Bureau and the P5 group. The Like-Minded Group had indignantly and  vehemently rejected the proposal. Several of its members excoriated  Owada and told him that he had not been an honest intermediary.  Some of these members thought that Owada had miscalculated both his timing and his role, as it was too late for states to be instructed from their capitals on his proposal. Owada should have consulted with other states in the course of the development of the P5 position. Instead, he had worked with the permanent members to develop a proposal, which, in the light of time restrictions, had to be either accepted or rejected by other nations. There was no longer room for development or further negotiation.

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To some participants, especially members of the Bureau, Owada’s performance seemed unaccountably naïve and unrealistic. He should have known that the Permanent Five proposal would be unacceptable to the Like-Minded Group. If he did know this, he either misread their willingness to reconsider or relied too heavily on his personal standing and powers of persuasion.18 This heated criticism of Owada came from deep anxiety and suspicion. He had made his effort after the final version of the Statute had almost come together. Accordingly, to some of the most fervent supporters of that version, such as Germany, he seemed to be trying to divert, at the last minute, the final completion of a hard-won text. These supporters knew that France and the United Kingdom were nearly ready to join the LMG in accepting the current text, but they also hoped that the United States would join a consensus on the Statute. A common P5 position, which included the United States, might induce France and the United Kingdom to hold back from the Like-Minded Group.19 Nonetheless, this intense rejection was effective. The jig was up. France and the United Kingdom eventually sided with the Like-Minded Group. As news of this shift pulsed through the Conference on the eve of its last day, with groups talking animatedly in the corridors and corners of rooms, some participants expressed the belief that the Owada proposal could have attracted considerable support if it had been presented during the Preparatory Committee or even during the opening days of the Rome Diplomatic Conference itself. By the final days and hours, however, a strong majority of delegations doubted that the United States could or would take actions of real support for the Court (such as signing the Statute) in return for the concessions the proposal offered it. The erratic behavior and the discordant voices in Washington, especially in the Department of Defense and Congress, as well as the hostility from some of the representatives on the U.S. delegation, had destroyed the credibility of Scheffer’s efforts. Although most delegates still respected the head of the U.S. delegation, fewer and fewer believed him. However, those behind the attempt to require governments’ consent to ICC prosecutions attempted to play one last card: to try to extend or recess the Conference. The United States made a direct appeal for an extension 18 Authors’ discussions with Bureau Members. 19 Interview with Darryl Robinson. See also David Scheffer, All the Missing Souls, 220; Philippe Kirsch and Darryl Robinson, “Reaching Agreement at the Rome Conference”, 75, n. 28; and Glasius, The International Criminal Court, 65–6.



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to UN Secretary-General Kofi Annan, who immediately rejected it. He had already publicly criticized the United States and other states for not joining in the common effort to achieve an agreed text of the Statute. Similar efforts to persuade Kirsch and Conso also failed.20 On 16 and 17 July, Scheffer made strenuous last-minute attempts to persuade other states during individual meetings. Some of the participants in these meetings found them to be strangely disconnected from the actual current course of events at the Conference in its closing hours. Scheffer argued that there would be a Preparatory Commission following the Conference to consider the Rules of Procedure and Evidence for the Court and to refine the Elements of the Crimes it would try. Scheffer added that this Commission would also complete the Statute. He believed it likely that the Statute would not be adopted in Rome because Kirsch was not ready to call for a vote. However, it was inconceivable to most people listening to the final Conference debates that it would not adopt the Statute. This odd last-ditch effort by Scheffer, which most states believed to be required by his instructions, further reduced his credibility. It also strengthened the resolve of the majority of states, such as the members of SADC, which met in the late morning of 17 July to accept the package draft of the Statute even in the face of determined U.S. opposition.21 Late on the evening of Thursday, 16 July, Chairman Kirsch convened a group of states composed of the Bureau as well as coordinators of the working groups, who were known as the ‘extended Bureau’. Together they managed to complete the final draft of the Rome Statute. This version, known formally as the Bureau proposal and informally as ‘the package’, combined all of the provisions agreed in the Preparatory Committee and in the early weeks of the Rome Diplomatic Conference. Added to these were the majority views on critical and highly political questions of jurisdiction and admissibility of cases, which governments had given in responses to Kirsch’s questions in the sessions on 8 and 9 July. The Bureau circulated the draft on the night of 16 July, and it was seen by many states in the early hours of 17 July.22 There has been much debate, some of it heated, over the late appearance of this proposal. Opponents of the Court and some states claim that it was a kind of preemptive strike by the Bureau in support of the positions of the Like-Minded Group and the European Union. Others point out that 20 David Scheffer, All the Missing Souls, 222. 21 Interview with Sabelo Sivuyile Maqungo. 22 Official Records, Vol. II, 360, para. 55.

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no single element of the Bureau proposal was in itself new. The substance of all of these elements had been floated and debated repeatedly throughout the Rome Diplomatic Conference and most of them had also appeared during the negotiations and intersessional meetings that had taken place before the Conference. All of the issues had featured in the questions posed by Kirsch during the meetings on 8 and 9 July. Moreover, the particular combination of elements in the Bureau proposal had also been similarly discussed as one among other options. The final draft of the Bureau proposal had had to wait until negotiations of all sizes and levels of formality on the wording of these elements had been completed. II. The Final Vote On the night of 17–18 July 1998, the Committee of the Whole assembled for the last time in the Red Room at the headquarters of the Food and Agriculture Organization. In this cramped and inconvenient space with too few seats, representatives of NGOs and governments alike thronged the aisles and sides. Many of them shared earphones. A large overflow group in an adjacent room listened to the proceedings on a closed-circuit sound system. Chairman Kirsch opened the meeting at 7:15 pm. He recognized the chairman of the Preparatory Committee, Adriaan Bos. Bos’s presence after surviving a life-threatening illness and his powerful and passionate appeal to the states present to adopt the draft statute further raised the emotional temperature in a room already full of expectation and foreboding. Kirsch then immediately introduced the Bureau draft, now completely converted into the proper format for a treaty. India and the United States asked for votes on amendments they had proposed. Foreseeing this move, the Bureau, the UN Secretariat, and the delegation of Norway had carefully choreographed a tactic to deal with it. Rolf Fife served at this fraught moment to take the Conference once again through a delicate and difficult passage. He had dark hair and angular features, said to come from his Scottish ancestry, and a manner both reserved and alert, and also cheerful. These traits usually served to conceal a short temper. He had joined the Norwegian Ministry of Foreign Affairs in 1985 and rose rapidly because of his intellectual range, his erudition, and his mastery of seven languages. He specialized in particular in Norway’s interests in the sea, fish, oil, international peace and security, and international criminal law. Norway sent him to its embassies in the Middle East



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and its mission to the United Nations. He served on and soon began to lead Norwegian delegations to many international conferences and meetings concerned with his areas of expertise. He covered the Security Council and regional conflicts for the Norwegian UN mission. To these experiences he brought his powerful mind, a strong sense of both process and substance, and an intense commitment to international law. Fife led Norway’s delegation through all of the negotiations on the Statute. In May 1998, he participated in a meeting between Lloyd Axworthy and Norweigian Foreign Minister Knut Vollebæk during which the Lysøen Declaration was signed. This committed both to consultation and concerted action on human security and humanitarian law, among other goals. The Declaration also called for the creation of the International Criminal Court, thus providing for close consultation and agreement on the Norweigian and Canadian positions toward the ICC.23 Fife therefore had a special relationship with Kirsch and his fellow Canadians. This in turn promoted particularly close relations with and the confidence of the Like-Minded Group, and a commitment to their vision of the International Criminal Court. From this close cooperation with Fife, and an awareness of his skills and expertise, the leadership of the negotiations used Fife as an intermediary in dealing with apparent dead-end and delicate situations. They also made him chairman of the Working Group on Penalties as early as the first session of the Preparatory Committee. Although penalty might seem a routine and easy issue, it was in fact a tediously difficult and delicate one. A key problem was capital punishment, which lay on the dividing line between different cultures and national experiences. It was impossible to include in the Statute since a great many states had made it illegal in their national law. The action Fife was now about to take in the Red Room testified to his boldness, his mastery of the workings of multilateral meetings, his selfassurance, and his standing with his capital. Employing the chosen tactic to deal with the Indian and United States amendments, Fife made a motion of ‘no action’, the same move he had used in the Sixth Committee in 1994, only now to a very different effect. No action is a standard procedure in many legislatures and formal meetings, where it often referred to as ‘tabling’. It features in the rules of United Nations meetings, although it is seldom used in them. In the UN General Assembly, it is based on Rule of 23 Janne Haaland Matlary, “Much Ado about Little: the EU and Human Security”, International Affairs 84, no. 1 (2008), 135.

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Procedure 74, which was used in the 1970s to deal with questions about the credentials of Israel and South Africa. Since a no-action motion raises the question of order, it has priority over any other business. It therefore took precedence over the amendment motion by the United States. Acting with permission from the Bureau and his superiors at the United Nations, Roy Lee had set up the procedures for the no-action motion with Norway. Reading from notes, Kirsch reminded the meeting that under the rules of the Conference, two states were permitted to speak in favor of the Norwegian motion and two against it. There would be two no-action motions, first on the amendment proposed by India, and another on the United States amendment. India explained that its amendment was about the role of the Security Council in bringing or deferring a case at the Court and the need to include in the Statute a provision that the use of nuclear, chemical, and biological weapons be considered a war crime. Mr. Fife, in introducing the no-action motion on the Indian amendment, said that the Bureau draft proposal was a compromise designed to attract the widest possible support in order to get as close as possible to a consensus. The package was a balance of compromises on the most difficult issues. Many states did not fully agree with these compromises, but had accepted them in order to achieve at this Conference an independent, effective, and credible international court. He said that any efforts to achieve further amendments now would upset the balance in the draft proposal and might well make it impossible to adopt. Malawi and Chile spoke in favor of the Norwegian motion, briefly stating that the issues raised by India had already been discussed at length during the Conference and had failed to attract substantial support. No state spoke against the motion. Chairman Kirsch then put it to a vote. Delegates raised their seat placards, which were counted by tellers moving through the room. The tally was 114 in favor, 16 against, and 20 abstentions. The crowd instantly broke out in applause, shouts, and embraces. Tense and anxious delegations, fearful that the United States with its blunt bilateral maneuvers around the world would either paralyze the Conference or render the Court largely impotent, now believed that this lopsided vote foreshadowed a defeat for the American amendment. Scheffer presented his amendment as containing two alternative proposals. Both concerned non-party states and the enduring American preoccupation that U.S. citizens could be tried by the International Criminal Court even without the United States being party to the Statute. In the first alternative proposal, if either the state where the crime was committed or



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the state whose citizen had committed the crime were a non-state party, both states would have to consent to the jurisdiction of the Court. In the other proposal, a non-state party could exempt its citizen from the Court’s jurisdiction if it acknowledged that the citizen’s allegedly criminal act was an official action.24 Fife spoke as before in support of his no-action motion on the U.S. amendment. Sweden and Denmark said that the delicate balance of interests and agreements in the Bureau proposal should not be endangered by further amendments now. Speaking in opposition, China and Qatar supported the views of the United States that the Court’s jurisdiction over non-states parties not only discriminated against them, but also violated international law, which forbade a treaty to impose obligations on states not party to it. Kirsch then put the no-action motion on the American amendment to a vote. Tellers once again passed through the room, exhorting delegates to raise their placards high so they could be seen. As they strove for accuracy, a din of excited voices rose and fell. Then the chamber hushed as the outcome was reported: 113 votes in favor, 17 opposed, and 25 abstentions. In the biggest and most emotional demonstration of the evening, an exuberant outburst of cheering, hugging, weeping, and rhythmic applause immediately broke out. Almost everyone stood up to join in. Normally staid diplomats leapt into each other’s arms. Chairman Kirsch briefly left the room to regain his composure. The celebration lasted for about twenty minutes but seemed gloriously endless to its participants. A few government delegations regarded as close friends of the United States, such as the United Kingdom, sat out the celebration. The U.S. delegates sat in their seats, some white-faced and grim, some clearly sad, others glaring, and a few of the younger ones openly weeping. But the great majority of delegations could only meet this last success with joyful disbelief at a surprising string of overcome impasses and progress against the odds. There was to be a great deal of comment in the United States about the celebration. Opponents of the Court in the United States later saw it as an expression of anti-Americanism in the Conference, and this claim, which had persisted throughout the negotiations, now came to the surface. The then-Chairman of the Senate Foreign Relations Committee, Jesse Helms, had verbalized this sentiment vehemently and often. Others cited the 24 Official Records, Vol. II, 361.

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celebration as proof that international organizations and the majority of other states in them fostered hostility toward the United States.25 Some members of the U.S. delegation in particular believed that most nongovernmental organizations, the international NGO coalition, and certain states, such as Canada, had deliberately wanted to embarrass and humiliate the United States in Rome. Some states and organizations had clearly been angered by the American refusal to compromise on its insistence that the Court’s jurisdiction be largely subject to the consent of the states concerned. Quite a few supporters of the Court could only see in this insistence a desire to make the Court a futility. For them, all of the extensive American contributions to strengthening the Statute were simply a façade to conceal this desire. This conclusion led to a few speeches by senior NGO leaders asserting that the United States was taking positions identical to those of dictatorships. The American delegates bitterly resented such comments. There were very few examples of conduct that could have been seen as taunting the American delegation at this moment, but most present celebrated a victory for the Court rather than a defeat of the United States. Many, especially those who been present during all of the negotiations, understood from working with the U.S. representatives and from their own sources in Washington that the puzzling inconsistencies and rigidities in the American position were not the fault of the delegation, but rather came instead from inattention, distraction, inflexibility, and misunderstanding in the Clinton administration. Kofi Annan called Hans Corell from Buenos Aires: “Have we a treaty?” Corell held up his phone. Annan rushed to the airport. 1. The Complex Implications of the U.S. Defeat Conclusions about the outcome for the United States at Rome—devastatingly outvoted, isolated, alienated from its allies, and embarrassed—have varied considerably. Some took this event as proof that the determined and disciplined opposition among most of the major actors that had developed and strengthened over several years could prevail over the United States in a multilateral negotiation.  Many in governments and civil society at the end of the Rome Diplomatic Conference saw this as an exhilarating precedent. Many others, 25 Transcript of “Remarks by Senator Jesse Helms, (R-NC) to the United Security Council”, Federal News Services, 20 June 2000, 135.



the drama of the final days141 more sophisticated and better informed, understood that the special circumstances in the creation of the Rome Statute, and thus the experience there with the United States, were unlikely to be repeated in the future.  This was a negotiation, driven by broadly shared emotions of worldwide shame and disgust, to achieve a familiar, clearly defined, single-purpose international organization. Its design and most of its jurisprudence had already been tested previously during the ad hoc tribunals for Yugoslavia and Rwanda. These elements made it relatively easy to bring together a single objective for civil society, United Nations officials, and many governments. However, this solidarity still might have not been enough to overcome thoughtful, wellinformed, well-organized, and international support by the United States to its delegation. For example, if the instructions from Washington finally sent to its delegation on 8 July 1998 had instead been provided in 1996 and backed up by an effectively coordinated global campaign in the capitals of participating states, a version of this position could have been accepted in the negotiations and included in the Rome Statute.  The success of the U.S. delegation at the ICC Review Conference is further evidence for that likelihood. The meeting held in Kampala, Uganda, in 2010, was explicitly provided in the Rome Statute to consider adding an amendment to include the crime of aggression to the pre-existing list of crimes. The United States, not having ratified the Statute, was only an observer at this meeting without the right to vote or make motions. Nonetheless, a large delegation, no less able than the one in Rome, with a carefully designed strategy and alert support from Washington, was able to achieve what had previously brought down vehement and fatal opposition to the United States in 1998. This was the requirement that, unless it had already been waived, ICC jurisdiction over the crime would depend on the consent of the governments concerned. This success was also possible because governments, civil society, and UN officials were divided over the issue of the crime of aggression. Many within each of these bodies were strongly and emotionally in support of it and ready to pay a painful price to get it.  The Rome Diplomatic Conference may have taught that the necessary elements to prevail over the United States in future negotiations on treaties required unity within and solidarity among governments, civil society, and the United Nations, together with simultaneous inattention and disarray in Washington.

Once the uproar finally calmed, the endgame in the Red Room went quickly. The Holy See declared that, while it agreed with the Indian proposals, since there was no majority support for them, it had supported the Bureau proposal. Libya had voted for the Indian proposal because it agreed

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that the use of nuclear weapons should be a war crime and disagreed with the Statute’s provisions on actions by the Security Council. Algeria had decided to heed the Chairman’s appeal not to reopen the debate on the proposals of India and the United States, although it largely agreed with them. The Committee of the Whole, without a vote and on the understanding that its Arabic version would be corrected to match the English text, adopted the Bureau’s draft statute. The final act in the life of the Committee of the Whole was consensus agreement on a report to the plenary of the Conference describing the Committee’s work and on forwarding the agreed text of the Statute. The Committee adjourned permanently at 9:20 pm. This final session, which seemed to its participants to have gone on for an eternity, had in fact lasted just over two hours. The proceedings of the Conference moved at 10:35 pm from the Red Room to a final plenary session in FAO’s main formal meeting hall to consider the report from the Committee of the Whole and the adopted draft statute it conveyed. The FAO used this room for ceremonial occasions and also for meetings of its governing body. It had an unusual shape: very wide, but only a few rows of seats deep. The electronic scoreboards Roy Lee had insisted on had been installed at each end of the hall. Just before Friday, 17 July became Saturday morning, the United States again asked for a vote, this time on the Statute as a whole. It reiterated much of what it had said earlier in the Red Room.26 The delegates could vote electronically at their desks, and the boards would display the results. The final tally counted 120 votes cast in favor of the Statute, 7 against, and 21 abstentions.27 As exhausted delegates roused themselves for another twenty minutes of exultation, the U.S. delegation found itself, according to the records of most observers, dissenting in the company of the delegations of China, Iraq, Israel, Libya, Qatar, and Yemen. The session ended with more speeches, too many for the hour, by governments explaining their votes. The United States made a short and gracious statement of regret and good will.28 The United States had been unable to accommodate itself to the shift— from the actions of states to the accountability of individuals—which had been carried into the Rome Diplomatic Conference by the momentum of the Preparatory Committee. Moreover, it had been out-maneuvered in the 26 Official Records, Vol. II, 121, paras. 8–9; 123, paras. 28–31. 27 Official Records, Vol. II, 121, para. 10. 28 Official Records, Vol. II, 126, para. 126.



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politics and operations there by the Like-Minded Group, which in turn had been working alongside the CICC, the determined new Chairman, and the UN Secretariat, to achieve a workable statute and a viable international criminal court. The conclusion of the Rome Diplomatic Conference brought its participants overwhelming satisfaction at the fulfilling sense of a sudden acceleration in the development of international law and the joy that five years of intense work, following forty years of preparation, had finally achieved the envisioned International Criminal Court to counteract the world’s great atrocities.

CHAPTER SIX

MAJOR RESULTS OF THE NEGOTIATIONS AND THE EVOLUTION OF INTERNATIONAL CRIMINAL LAW The Statute was the result of five years of negotiations, where state interests and legal heritages confronted each other and where NGOs were able to influence some of the most critical outcomes. As expected, some provisions were particularly difficult to negotiate either for reasons of their political implications or because certain delegations used them as bargaining chips. These provisions not only determined the jurisdiction of the ICC but also defined new standards of international criminal law that would influence its development and that states parties should incorporate when implementing the legislation. Here are some of the main issues of the debate, particularly those which generated the most controversy and led to the most innovative provisions, and the varied responses made to them at the Rome Diplomatic Conference. I. Definitions of Crimes The definition of crimes under Articles 5 to 8 of the Rome Statute was particularly challenging. These provisions contained new codification of crimes that extended the protection of victims. The Elements of Crimes or the jurisprudence of the Court would have to address the uncertainties left in some provisions. 1. Genocide and Crimes against Humanity Article 6 of the Rome Statute, on the crime of genocide, was among the first to be sent to the Drafting Committee; this article repeatedly referred to the 1948 Convention of the Crime and Punishment of Genocide as establishing customary norms of international law. Article 7 (1) of the Rome Statute defines crimes against humanity as those “committed as part of a widespread or systematic attack directed  against any civilian population, with knowledge of the attack”.

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This provision had proven to be very contentious during the negotiations around three qualifying conditions in particular: the link to an armed conflict, discrimination as a reason for the attack, and whether the attack needed to be widespread and/or systematic. A second attempted qualification of crimes against humanity, requiring that they be committed with the intention to discriminate against a defined group, was also abandoned by its proponents in order to preserve the package. The link to armed conflict was especially problematic during the debate. Many delegations from Asia, including China, and from the Middle East and Africa defended the requirement of a connection with armed conflicts, as included in the Nuremberg Charter and the ICTY Statute. Some Arab delegations, headed by Syria, stated that the commission of crimes against humanity required a connection to international armed conflict. The majority of states, strongly supported by NGOs, advocated that this link was not consistent with international customary law. The need for a connection to international armed conflict was finally rejected, ultimately giving a wider jurisdiction to the Court. Finally, the issue whether the threshold should be ‘widespread or systematic’ (defended by the Like-Minded Group) or ‘widespread and systematic’ (defended by some permanent members of the Security Council, and Arab and Asian states) was hardly discussed. The ‘and’ would require a pattern (systematic) and a quantitative (widespread) element that would restrict the jurisdiction. Furthermore, many states were concerned that if the threshold were too low, common crimes such as mass murders could fall within the jurisdiction of the Court. This debate was finally resolved through a compromise, proposed by Canada, to include ‘or’ and to add that the attack be “pursuant to or in furtherance of a State or an organizational policy”.1 Article 7 of the Rome Statute further refined the definition of crimes incorporating existing international standards and case law and added new categories of crimes, such as crimes against humanity. Article 7 lists the inhumane acts of: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, 1 Rome Statute, Article 7(1), (2)(a).



the evolution of international criminal law147 cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The Rome Statute also provided two new definitions of crimes against humanity. First, it defined the crime of enforced disappearances as: the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of a state or organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate, whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

Critics dislike the last part of this definition for two reasons. First, it requires the perpetrator to have intended to remove the victim from the protection of the law. Second, it requires the perpetrator to have intended to remove the victim from such protection “for a prolonged period of time”. India in particular defended this new criterion. International law defines enforced disappearance as a complex crime that cannot be characterized on the basis of either intention. Neither requirement is found in the internationally accepted definition of enforced disappearance in relevant international case law or within the International Declaration on the Protection of All Persons from Enforced Disappearance. Their interpretation in the Elements of Crimes or the jurisprudence of the Court may severely curtail the ICC protection over victims of such crimes. Second, the Rome Statute incorporates the crime of apartheid in the list of crimes against humanity and its existing definition in international customary law. The Rome Statute also included the crime of persecution committed on discriminatory grounds. However, after long discussions, the consensus included it as a crime, but only when committed in connection with other crimes against humanity already listed. The list of grounds existing in international law was also extended to include national, ethnic,  and gender grounds, though these were applicably limited to “other groups that are universally recognized as impermissible under international law”.2

2 Rome Statute, Article 7 (a)(h), 7(2)(g).

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2. War Crimes With regard to war crimes, most of the negotiations focused on whether to include internal armed conflict within the jurisdiction of the Court. The consensus to include internal conflict and avoid punishing isolated acts, as foreseen by the French and U.S. delegations, was achieved by defining a higher threshold in the introductory paragraph, stating that the crimes should be committed in particular as a part of a plan or policy or as part of a large-scale commission of such crimes. The Statute also includes a new qualification of war crimes defined as “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate in hostilities”. This definition was intensely debated and became the object of informal sessions during the fourth week of the Conference. For the U.S. delegation, it was more of a human rights norm than a criminal provision and was not considered to be part of customary international law. Delegations proposed to raise the age to eighteen. In Rome, the terms “conscripting or enlisting” replaced the word ‘recruiting’ for a more passive connotation, and this answered the U.S. concerns. Furthermore, to address the concerns of some Arab states that young Palestinians taking part in Intifada would be considered, the words “into the national armed forces” replaced the phrase ‘into armed forces’. II. Crimes of Sexual Violence and Gender Balance 1. Crimes of Sexual Violence Recognized today as one of the greatest achievements of the Rome Statute, the incorporation of crimes of sexual violence was particularly complex. Although rape was already defined in the ICTY and ICTR Statutes, other crimes of sexual violence qualified in the jurisprudence of these tribunals were never codified. The 1996 ILC draft referred to rape as an outrage upon personal dignity in the list of war crimes but did not take it to be a grave breach of humanitarian law. At the February 1997 session of the Preparatory Committee, Roger Clark from the Samoa delegation along with New Zealand and Switzerland (acting on the basis of a draft prepared by the International Committee of the Red Cross) had introduced a proposal to define rape as a war crime under the description of being a grave breach. The Preparatory Committee, however, rejected this proposal when it decided to incorporate the 1949 Geneva Convention’s exact definition of grave breaches.



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“Following that session, it was clear that this issue in particular would need to be pushed by women’s organizations in the ICC negotiations,” said Women’s Caucus leader Rhonda Copelon.3 Under her leadership, the women’s groups organized themselves to participate as the Women’s Caucus at the next session of the Preparatory Committee. But not only did they, at the beginning, have to lobby hard on the subject, they were also seen as a key partner. As Copelon later described the situation: Among some governments, NGOs and the UN, there were people who would never talk to the women’s caucus or women’s organizations and to whom they had no access. We had to demonstrate through our actions and our statements the essential nature of our role. We had to prove that we have had a place in the negotiations and that our issues required attention.4

The Women’s Caucus worked closely with national organizations in an intense nation-by-nation advocacy campaign to incorporate and define rape and gender crimes in the Statute in accordance with international law. As a result, at the December 1997 session of the Preparatory Committee, the plenary discussed this definition in a more comprehensive way. Many delegations advocated a separate and more inclusive definition. The crimes committed in former Yugoslavia and the vivid description presented by Bosnia-Heregovina’s delegation had an important impact on this debate as well. As a result, a draft provision of war crimes proposed to disconnect rape from outrage upon personal dignity and instead include an option incorporating the following definition: rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a grave breach of the Geneva Conventions.

Since there had been consensus on the article on war crimes and crimes against humanity among the delegations to the Preparatory Committee already, the article had not been bracketed as disagreed in the draft statute submitted to the Rome Diplomatic Conference by the April 1998 Preparatory Committee. However, on the final day of the April session, the Holy See took the floor to express its concerns regarding the definition of ‘forced pregnancy’ and proposed to replace it with ‘forcible impregnation’. This latter phrasing, referring to making a woman pregnant, was much more limited than the term ‘forced pregnancy’, which referred to keeping a woman pregnant. 3 Interview with Rhonda Copelon. 4 Ibid.

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This proposed revision sparked passionate disagreements in Rome. The Australian delegation’s Cate Steains, an expert on gender crimes, explained: The inclusion within the Court’s jurisdiction of ‘forced pregnancy’ emerged as the most contentious of all the gender provisions and one of the most emotionally charged issues in the Rome Conference.5

The first three weeks of the Rome Diplomatic Conference were dedicated to informal, bilateral, and corridor meetings between the delegations opposed to any reference to forced pregnancy (the Holy See and the group of Arab states in particular) and the delegation in favor of this definition (Australia, Bosnia-Herzegovina, Canada, and New Zealand especially). The first group, following pro-life arguments, advocated that this wording could be interpreted as imposing an obligation to provide access to abortion to pregnant women. Through all of the diplomatic conference negotiations, the Women’s Caucus’s advocacy with delegations, UN officials, and NGOs was so intense that at some points the Holy See stopped talking to its representatives altogether. The Bureau appointed Steains to coordinate a solution and convene a meeting of interested states. The Holy See, the Arab states, some Latin American states, and Ireland represented one position, while Australia, Bosnia-Herzegovina, Canada, Finland, and the United States represented the other. This meeting, followed by numerous bilateral meetings and intense informal discussions, contributed to the final compromise, which added a provision (Article 7.2.f) to the crime of forced pregnancy to reassure the Holy See and others that this definition would not impact national legislation on abortion. It stated that ‘forced pregnancy’ meant: the unlawful confinement of a woman forcibly made pregnant with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.6

This definition would not be interpreted as affecting national laws relating to pregnancy. The Rome Statute, furthermore, codified the following new list of crimes of sexual violence listed as crimes against humanity and war crimes: “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable 5 Cate Steains, “Gender Issues,” in Roy Lee, ed., The Making of the Rome Statute (The Hague; Boston: Kluwer Law International, 1999), 366. 6 Rome Statute, Article 7 (2)(f).



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gravity”, or also constituting a grave breach of the Geneva Conventions, in the case of war crimes.7 2. Gender Balance and Expertise in the Court The Women’s Caucus also furthered the Statute’s historic innovation in its concern with gender by fighting for provisions to ensure that a fair number of judges would be women and for a requirement of expertise on gender and sexual violence in the selection of judges. During the negotiations, the most contentious selection criterion for judges involved gender balance. China and some Arab states were very much opposed to any type of gender balance, as they feared in particular that it would mean parity in the Court’s composition. During the debates, an Arab delegate indicated that gender balance was unacceptable to his delegation as it could be considered synonymous to ‘equality’. Many Arab (and other) delegates had been convinced by anti-choice lobbyists that ‘gender’ would require states parties to adopt laws permitting same-sex marriages, so they were vehemently opposed to gender balance on two counts; they believed it would require the equal treatment of women and also recognition of the rights of homosexuals. A compromise was finally proposed by Australia, Canada, and New Zealand specifying “fair representation of female and male judges”.8 When the Syrian representative was asked if he could live with that solution, he replied he would “not commit suicide.” Certain delegations also felt strongly that judges should have a specific expertise on sexual violence to adequately prosecute such criminals and interview victims and witnesses. Most Arab delegates and several African delegates expressed the view that judges trained in criminal law were capable of handling trials of sexual violence and violence against children because they were, by their position, impartial professionals. They refused to give any credibility to research demonstrating the need for such expertise in cases of crimes of sexual violence. However, the delegate from Burundi explained in detail that, in Rwanda, informative answers could only be obtained from children when experts were interviewing them. The need for judges with relevant expertise was also evidenced by mentioning examples of the insensitive conduct of some ICTR judges toward raped women. The Like-Minded Group of states and the Women’s Caucus once 7 Rome Statute, Articles 7 (1)(g); 8 (2)(b) (xxii); 8 (2)(e) (vi). 8 This compromise was adopted in the final Rome Statute as Article 36, (8)(a)(iii).

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again managed to have a compromise accepted that would: “include judges with legal expertise on specific issues, including, but not limited to, violence against women or minors.” III. Victims’ Rights Another historic achievement of the negotiations was the new status and rights afforded to victims in international criminal law. A major innovation of the ICC Statute was, in particular, the definition of victims’ rights before the Court, including the right to participation and reparation. The rights of victims to protection strengthened the rules and practice inherited from the ad hoc tribunals. This accomplishment directly resulted from the particular dynamics of the negotiations and from the unique role of NGOs and their close cooperation with state delegates. 1. The Right to Participation The ILC draft statute did not include any rights to participation for victims. The insertion of these rights in the article on protection came later in the discussion. NGO representatives, in particular David Donat-Cattin from the European Law Student Association, first put forward proposals that were later submitted by New Zealand in August 1997.9 Article 43.4 stated that: The Court [shall] [may] permit the views and concerns of the victims to be presented and considered at appropriate stage of the proceedings where their personal interests are affected in a manner which is consistent with the rights of the accused and a fair and impartial trial.

France proposed a second paragraph in relation to the draft provision on reparation, which its delegation pushed forward: Legal representatives of the victims of crimes have the right to participate in the proceedings with a view to presenting additional evidence needed to establish to basis of criminal responsibility as the foundation of their right to pursue civil compensation.10

In Rome, the article on participation was not discussed until late in the fourth week, when Canada chaired informal consultations during which 9 This article would eventually become Article 68.3 of the final Rome Statute. 10 Report of the Preparatory Committee, August 1997, A/AC.249/L8/Rev.1.



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some delegations, especially Australia, the United Kingdom, and the United States tried to reduce the possibility for victims to present their views and concerns to the Court. The United States wanted the Prosecutor to be the sole voice for victims. A large group of civil law delegations headed by France resisted this, stating that the limitation of victims’ rights would be a ‘breaking point’ for both the French delegation and some common law delegations, especially those from the SADC region.11 In this regard, the role of Latin American countries, such as Argentina and Colombia, was significant, as they insisted that, for them, the role of victims in the proceedings was crucial. Indeed, for those delegations, victims would be victimized again by the criminal proceedings if they would have to follow those proceedings without any possibility to express their views and concerns; victims, therefore, needed to be in a position to influence the outcome of the criminal proceedings before the Court. Certain delegations in the debate among working groups expressed concern that a disproportionately high number of representatives of victims were participating in the debate itself. Argentina proposed a compromise in which the Rules of Procedure and Evidence to be adopted at a later stage would define that there could be one representative for all victims. Some delegations opposed any reference to the UN 1985 Declaration on Principles of Justice. This declaration considered victims’ participation, protection, and reparation in criminal proceedings, though some delegations felt that permitting these considerations before an international jurisdiction was simply too progressive; others found the judicial standards established by the declaration to be too rigid and complex to transpose before an international court.12 Adding another level of friction to the discussion, the group of Arab states rejected any mention of gender. After a long and intense series of debates in which cultural and legal differences were in full play, the Rome Diplomatic Conference ultimately adopted Article 68. The preparatory work made clear that delegations generally accepted that victims’ participation could begin at the pre-trial stage, and victims were now permitted to participate, independently from other parties, at every stage of the proceedings. Section 3 of Article 68 reads: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner 11 Interview with Gilbert Bitti. 12 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES/40/34, 29 November 1985, (online): www.un.org/documents/ga/res/40/a40r034.htm.

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Despite opposition by certain delegations, the 1985 UN Declaration on Principles of Justice was included in a footnote of the article. Article 68, along with Articles 15 and 19 (on the opening of an investigation) in particular, are exemplary of the broadened inclusion of victims’ rights and interests in the Rome Statute and, taken all together, constitute a major step forward in international criminal law. 2. The Right to Reparation The International Law Commission, divided on whether to include the right to compensation for victims in its draft definition, excluded it in favor of providing a trust fund for victims to receive a portion of proceeds collected through fines.13 However, there were no further provisions about the use of these fines or the functioning of the trust fund, and by the time of the Ad Hoc Committee, a majority of delegations had found fault with this portion of the draft, considering it inappropriate to impose only a fine for such serious crimes.14 During the negotiations, the French and UK delegations, despite the differences in their respective legal systems concerning victims’ right to reparation, formed a powerful alliance on the issue. Alongside these states, the involvement of nongovernmental organizations, REDRESS in particular, succeeded in overcoming some delegations’ 13 UN General Assembly Resolution 44/39 (4 December 1989). Reparation is first limited to restitution, defined as a penalty, to be distributed by the tribunal to an humanitarian organization, A/46/10, article Z, note 296 (1991). In 1992, the rapporteur proposed that any state or international organization may act as civil party to obtain reparation, in A/CN.4/442, §67–75 (1992), and the ILC suggested the creation of a commission in charge of compensation within the Court, A/47/10, §90. But the debates within the Sixth Committee of the General Assembly have shown the difficulty to integrate the right to reparation into international criminal law. Some delegations rejected that notion of a criminal institution with civil claim actions, while others insisted not to exclude reparation, “as repression only cannot make justice when damages caused by the crime is not repaired.” See A/CN.4/446, §104–105 (25 January 1993). In 1993, Article 53.3 defines the jurisdiction of the Court for the restitution of illicitly acquired properties by the convicted person, in connection with the crime and the income derived from them, and the United Kingdom suggested the payment of fines or confiscated property to victims, directly or through their state: A/49/10, p.135, §3 and A/CN.4/458/1-8. 14 Article 47.3, A/49/10. See also Amnesty International, Establishing a Just, Fair and Independent International Criminal Court, IOR 40/05/94, October 1994, 21–22; See also Report of the Ad Hoc Committee, Supplement No. 22, A/50/22, §187–190.



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strong objections to the jurisdiction of the Court over reparation to ensure a victim’s right to full reparation.15 There were several main arguments against the insertion of a right to reparation for victims in the ICC Statute. There were concerns that defining reparation to victims would distract the Court from its main objective of prosecuting and sanctioning the crimes under its jurisdiction. Others felt that addressing and defining reparations would be too complex for a criminal court with members from such different legal traditions and that implementation would be particularly problematic in states that do not have reparation proceedings in their domestic legislation. A number of delegations referred to this provision as a ‘stalking horse’ for awards of reparation against states.16 Fundamentally, the concept of reparation to victims was problematic because it was unknown to many legal systems, whose states did not consider a criminal court as an appropriate place for determining compensation to victims. However, since the Rome Statute negotiations repeatedly took into account the experience of the tribunals of the former Yugoslavia and Rwanda, to some delegations it was obvious that justice before the ICC could not be only retributive as it had been in the tribunals. Indeed the ICTY and ICTR could only decide on restitution as a penalty, and victims could only later implement the judgment in national courts. However, due to the complexity and frequent inadequacy of national proceedings, victims did not use them, leaving them once again frustrated.17 The ICC negotiations addressed this situation. On the basis of Article 106 of the Rules of Procedure of the ad hoc tribunals for former Yugoslavia and Rwanda, the Preparatory Committee provided for a right to restitution and compensation for victims in 1996. In August 1997, when the discussions effectively started, France proposed that the Court have

15 See in particular REDRESS, Article 66: Reparation for Victims, (15 March 1998); Reparation for Victims in the International Criminal Court, Principles, Commentary and Recommendations for the Rome Diplomatic Conference, (June 1998); Amnesty International, The International Criminal Court: Making the Rights Choices, Part II, (1997), 31–33, Part V, (1998), 66–68; Human Right Watch, Commentary for the 1997 Prepcom, 69–72, and the 1998 Prepcom, 30–32; Justice in the Balance, Recommendations for an Independent and Effective International Criminal Court, June 1998; International Society for Traumatic Stress Studies, Suggestions Regarding the Victim’s Role in the ICC, August 1997; Women’s Caucus for Gender Justice, Recommendations for the March 1998 Prepcom: Reparations, 1–9. 16 Christopher Muttukumaru, “Reparation to Victims” in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute (1999), 264. 17 See Karine Bonneau, Le Droit à Réparation des Victimes, (Sarrebrucke: Editions Universitaires Européennes, 2011), 248–249.

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jurisdiction to define for itself the principles of compensation, so as to guarantee effective implementation.18 In advance of this session, REDRESS had organized an expert consultation meeting in Geneva in March 1997, and subsequently refined a comprehensive set of materials on ICC and reparation issues, including precise textual amendments to the draft statute. In the report, REDRESS recommended referring to the broader term of ‘reparation’ rather than the narrower ‘compensation’, in accordance with the Draft Basic Principles and Guidelines on the Right to Reparation for Victims of Violations of Human Rights and International Humanitarian Law (commonly known as the Van Boven Draft Principles);19 the group’s intense advocacy was increasingly met with the support of other NGO representatives.20 The French delegation endorsed REDRESS’s proposal and submitted a new definition of reparation, as including “restitution, compensation, and rehabilitation”. Taking into account the principle of complementarity governing the ICC, it further introduced the possibility for the Court to directly proceed with the implementation of the reparation award when national authorities were unable to do so.21 18 Draft Articles 45G and 45D, Annex VIII, Preparatory Commission Supplement No. 22, A/51/22, Vol. II, 223–224. The trial Chamber will “determine the scope and extent of the victimization and establish principles relating to compensation for damages caused to the victims and to restitution of property unlawfully acquired by the persons convicted, in order to allow victims to rely on that judgment for the pursuit of civil remedies, including compensation, either in national courts or through their governments, in accordance with national law.” 19 The study on the right to restitution, compensation, and rehabilitation for the victims  of grave violations of human rights and fundamental liberties was undertaken by the  UN Sub-Commission for Human Rights, Resolution 1989/13 (31 August 1989). Van Boven  was appointed as a special rapporteur in charge of this study and the development of its basic principles. In 1998, Cherif Bassiouni, an independent expert, finalized the draft principles, Resolution 1998/43 (17 April 1998). The UN General Assembly adopted these principles on 16 December 2005. The Basic Principles and Guidelines on the Right to  a Remedy and Reparation (online): www.ohchr.org/EN/ProfessionalInterest/Pages/ RemedyAndReparation.aspx. 20 See REDRESS, Promoting the Right to Reparation for Survivors of Torture : What Role for an International Criminal Court? (June 1997), 43–44. 21 Proposal of the French delegation of Article 45D in December 1997 following draft Article 45bis, proposed in the August session, in Zutphen Report A/AC.249/1998/L.13, 123–126, A/AC.249/1997/WG.4/DP.3, Annex VIII. “To determine the scope and extent of the victimization and establish principles relating to compensation for damages caused to the victims and to restitution of property unlawfully acquired by the persons convicted, in order to allow victims to rely on that judgment for the pursuit of appropriate forms of reparation, such as restitution, compensation and rehabilitation, either in national courts or through their governments, in accordance with national law. If the competent national authorities are no longer able, due to their total or partial collapse or unavailability, to proceed upon the judgment, the Court shall do so directly”.



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During the December session, the UK delegation submitted another proposal on reparation. Doubting the feasibility of rehabilitation for a convicted person, the UK excluded rehabilitation from the concept of reparation, though it did include punitive awards. It also provided for more complete proceedings, including measures related to enforcement and protection.22 At the request of the coordinator, a joint French and British proposal was submitted at the following session from March to April 1998.23 The French delegation insisted that “the forms of reparation such as restitution, compensation and rehabilitation,” must be interpreted in light of the Van Boven Draft Principles. At the request of Roger Clark, from the Samoa delegation, a footnote was inserted expressly referring to the Van Boven Draft Principles and the 1985 UN Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, for the objectives of defining reparation. A joint proposal by the UK and France and many interventions mentioned the Van Boven Draft Principles and the 1985 UN Declaration of Principles of Justice, echoing REDRESS and other NGOs proposals. In January 1998, REDRESS liaised closely with France and the UK to develop a merged text. It also sent letters to international organizations encouraging them to engage with the unique negotiations process, promoting the right to reparation. The drafters submitted a new article, renumbered 73, to the Rome Diplomatic Conference, but the entirety of the text was bracketed as ‘not agreed’ at the request of Japan;24 France had inserted a provision in the draft referring to Principle 11 of the 1985 UN Declaration of Principles of Justice, but Japan considered this provision to violate state sovereignty and contradict the principle of individual criminal responsibility governing the ICC Statute.25 22 Proposal of United Kingdom, A/AC.249/1997/WG.4/DP.13, (12 December 1997), Annex VIII. The UK delegation believes that the rehabilitation is beyond the competence of an individual, in particular the convicted person. It is in this sense joined by the United States that proposed in the last PrepCom to replace ‘reparation’ with “restitution and compensation” and to consider the rehabilitation only in term of “compensation for rehabilitation”. Japan submitted such a proposal at the Conference (A/CONF.183/C.1/WGPM/L.30, 28 June 1998). Both delegations finally yield on this important point, convinced that the Court will not turn into “welfare agency”: the definition of principles by the Court does not require that implementation by the latter, and especially since the Trust Fund for Victims should establish procedures and specific means of rehabilitation. 23 Joint proposal of France and the UK, A/AC.249/1998/WG.4/DP.19 (10 February 1998). 24 PrepCom Report A/CONF.183/2/Add.1, note 22, p. 116. 25 Principle 11 states: “Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive

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The U.S. delegation also presented itself as major opposition to key elements of the draft, in particular to the definition of rehabilitation, stating that the Court could not be a “social service agency”. It insisted on the phrasing “compensation for the purposes of rehabilitation”, limiting the scope of reparation. During the Rome Diplomatic Conference, REDRESS organized a meeting with the U.S. delegates more likely to be sympathetic to victims’ issues, together with American members of the Victims’ Rights Working Group, including Professor Naomi Roht-Arriaza, who had worked with victims in the U.S. criminal justice system. As a result of the meeting, REDRESS was reassured that the U.S. would no longer insist on limiting the scope of reparation. Working groups on 8 and 10 July discussed the text again, especially footnotes the United States had added to paragraph 1. The United States had proposed an entirely new procedural footnote aimed at preventing the Court from dealing with reparations requests and regarding each victim separately in cases where there were many victims. The UK and France responded by introducing amendments excluding the U.S. proposal and supported by the majority. Discussion ensued regarding the international documents to be mentioned in the footnote for the purpose of defining ‘victim’ and ‘reparation’ in a way that would conform to international law standards. A footnote to paragraph 1 was finally added, stating that: appropriate reparation [shall] be granted not only to victims but also to others such as the victim’s families and successors. For the purposes of interpretation of the terms ‘victims’ and ‘reparations’, definitions are contained in the text of Article 44.4 of the Statute, Article 68.1 and its accompanying footnote, the Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power (GA Res 40/34, of 29 November 1985) and the examples in paragraphs 12 to 15 of the revised draft basic principles and guidelines on the right to reparation for victims of gross violations of international human right law and international humanitarian law (E/CN.4/Sub.2/1996/17).26

This reference to the UN Declaration, in particular to paragraphs 12 to 15 of the Van Boven Draft Principles, also refers to measures of satisfaction and guarantees of non-repetition, meaning collective and symbolic measures

restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.” Online: www.un.org/documents/ga/res/40/a40r034.htm. 26 A/CONF.183/C.1/WGPM/L.63/Rev.1, (11 July 1998), n. 1.



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of reparation.27 Moreover, victims would specify “their request for restitution, compensation, rehabilitation or reparation in other forms” and its broad definition of reparation.28 The text was finally adopted on 13 July. Former Article 73, which became Article 75, provided for the first time in the history of international criminal justice that: 1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. 2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in Article 79.29

Article 75 also allowed the Court to seek comments from victims and adopt measures of reparation; required states to cooperate with its demands; and finally, declared an intent to not “prejudice the rights of victims under national or international law”. A major element of the reparation regime established in Rome was the creation of the Trust Fund for Victims. Its foundation was seen in the ILC statute. But during the negotiations, it was defined as an institution independent from the Court though still part of the Rome system and able to receive voluntary contributions, money, and other property collected through fines and forfeiture ordered by the Court. Victims were defined in a broad sense to include victims of the crimes under the jurisdiction of the Court and their families, and this general mandate was later clarified by the Assembly of States Parties as indicated in Article 79. Articles 75 and 79 are part of the recognition of the new legal status of victims. This status has been the object of very difficult negotiation, as it did not exist in many legal systems. But it resulted from the Statute that it is an inherent element of a more complete justice system and also a way 27 Ibid. 28 These forms of reparations may be implemented through the Trust Fund for Victims, which receives voluntary contributions, the proceeds of fines, and confiscated property (Article 79 of the Statute) and Rules PCNICC/2002/2, (24 July 2002), Annex XIII, 28–29. 29 Article 73, which became Article 75 of the Rome Statute.

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to achieve a more sustainable peace. Reflecting later on the debate and its outcome, Christopher Muttukumaru from the UK delegation observed: As the negotiations proceeded, the national positions were adjusted. A court whose purpose is exclusively criminal would not have the size necessary to deliver justice in a broad sense…. It was therefore agreed that further reparations may contribute to the reconciliation process. This process could create conditions to reduce the risk of further violations.30

IV. The Debate on Penalties and the Death Penalty The debate on penalties turned out to be more complex and problematic  than expected. Some delegations wanted the death penalty to be included on the list of penalties the Court could pronounce. These prodeath penalty states (such as Egypt, Iran, Kuwait, Oman, Sudan, Syria, and Trinidad and Tobago) feared in particular that the exclusion could affect their internal policy and legal systems. Other delegations used the subject as a bargaining chip to negotiate unrelated matters. Although it was clear that the majority of states would not sign the Statute if it included the death penalty, this issue remained open until the very end of the Conference. Rolf Fife from Norway, Chairman of the Working Group on Penalties, waited for other debates to finish first, leaving the debate on the death penalty for the end of the group’s sessions. This choice, dictated by his high diplomatic skills, was not flawless, as some delegations were waiting to see if the death penalty would be included before agreeing on other issues. At the official final meeting of the working group, the discussion was reopened and followed by many bilateral, informal and formal meetings, without achieving any agreement. The delegation of Trinidad and Tobago finally proposed a compromise that would not include the death penalty if the chairman provided a statement declaring that the Statute would not affect national penalties. This proposal, however, was short-lived as Trinidad and Tobago, in concert with Barbados, the Dominican Republic, Jamaica, and Singapore, later reversed course to insist again on the inclusion of the death penalty. The group of Arab states and Iran introduced a proposal that provided for the imposition of the penalty in force in the state where the crime was 30 Christopher Muttukumaru, “Reparation to Victims,” in Roy Lee, ed., The International Criminal Court: The Making of the Rome Statute (1999), 264.



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committed. The United States declared that pursuant to the principle of complementarity, states themselves should have the primary responsibility for trying and punishing the perpetrators. Of course, domestic courts would apply the punishment called for in their national laws. This point underscored an argument that the Chairman had insisted on from the beginning. The delegation of Trinidad and Tobago withdrew when their Attorney General arrived at the Conference and was convinced that the inclusion of the death penalty was impossible. The presence of the Ambassador of the United States, the Minister of Justice from Sudan, and the Attorney General from Trinidad and Tobago highlighted the importance of the issue to these states. A modified version of the original Trinidad and Tobago compromise was eventually adopted. The new Article 80 in the Rome Statute concerned “non-prejudice to national application of penalties and national laws”, stating: nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of the States which do not provide for penalties prescribed in this.

It further included the agreement upon a statement that the working group asked the Chairman of the Conference to read at the final plenary session. Singapore, Sudan, Trinidad and Tobago, Ethiopia, Egypt, Barbados, Jamaica, and the Dominican Republic reiterated their attachment to the death penalty at the end of the Working Group session. Jamaica, Singapore, Ethiopia, and Sudan repeated their commitment the following day in the Committee of the Whole, with Rwanda and Saudi Arabia chiming in as well. At the request of the Working Group on Penalties, the President of the Conference, Giovanni Conso, declared at the final plenary session: The debate at this Conference on the issue of which penalties should be applied by the Court has shown that there is no international consensus on the inclusion or non inclusion of the death penalty. However, in accordance with the principle of complementarity between the Court and national jurisdictions, national justice systems have the primary responsibility for investigating, prosecuting and punishing individuals, in accordance with their national laws, for crimes falling under the jurisdiction of the International Criminal Court. In this regard, the Court would clearly not be able to affect national policies in this field. It should be noted that not including the death penalty in the Statute would not in any way have a legal bearing on national legislations and practices with regard to death penalty. Nor shall it be considered as influencing, in the development of customary

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V. ICC Jurisdiction Negotiating the jurisdiction of the ICC proved to be one of the most controversial issues at the Rome Diplomatic Conference. Philippe Kirsch and John Holmes, a Canadian delegate and adviser to Kirsch, described it as “the most complex and most sensitive” of the issues.32 State sovereignty, the Court’s relationship with the United Nations Security Council, the risks of political interference, and the effective independence of the ICC were at the center of this debate. 1. States’ Consent and Trigger Mechanisms Until the adoption of the package deal presented by Philippe Kirsch in the very last days of the Rome Diplomatic Conference, all options remained open, from universal jurisdiction to a jurisdiction triggered by the cumulative agreement of various states parties to the Statute. The International Law Commission’s draft statute envisaged inherent jurisdiction of the ICC over the crime of genocide if a state party presented a complaint (the state party would in turn also become a state party to the Genocide Convention). The Court could exercise its jurisdiction over other crimes once the state with custody of the suspect and the state on whose territory the crimes were committed accepted the jurisdiction through ratification and specific declaration. During the last session of the Preparatory Committee in March-April 1998, the United Kingdom submitted a paper aiming to clarify the various options.33 At the opening of the Rome Diplomatic Conference, the Republic of Korea put forward a new proposal providing for “automatic jurisdiction” in which the Court could exercise its jurisdiction when any of four possible states involved (the territorial state, the states of nationality of the accused and the victims, or the custodial state) had consented to ICC jurisdiction over the case by ratification or acceptance on an ad hoc basis.34 31 Press Release, UN Diplomatic Conference Concludes in Rome with Decision to Establish a Permanent International Criminal Court, 17 July 1998, L/ROM/22, 5. 32 Philippe Kirsch and John Holmes, “The Rome Conference on the International Criminal Court: The Negotiating Process,” American Journal of International Law 93 (1999), 2. 33 Proposal of the United Kingdom, A/AC.249/1998/WG.3/DP.1. 34 Proposal of the Republic of Korea, A/AC.



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The Bureau finally presented new proposals on 6 July.35 The Committee of the Whole debated the discussion paper, but delegations stood on their respective positions. African states and like-minded states supported the automatic jurisdiction of the Korean proposal. China and the Arab states defended an opt-in regime, while the United States and the Russian Federation agreed on an opt-in regime for crimes against humanity and war crimes. France defended the opt-in option only for the state of nationality of the party accused of war crimes. A new Bureau paper, with all remaining alternative options, was discussed on 13 July by the Committee of the Whole.36 Like-minded delegations and delegations supporting the German proposal agreed on the Korean proposal as an alternative. France would accept a transitional provision in the case of war crimes. The United States and others wanted, as a matter of principle, the consent of the territorial state as well as that of the state of nationality and considered consent of the latter as a minimum; with these ends in mind, the United States tabled a specific proposal on 14 July 1998.37 On 16 July 1998, on the eve of the end of the Conference, two proposals were presented by the United States and other permanent members of the Security Council. The first one promoted the principle of ‘official act’ whereby a non-state party should consent to the Court’s jurisdiction over a person accused of war crimes or crimes against humanity if the accused is a national of that state and if the state considers this act to be official; furthermore, states parties could adopt an optional protocol to opt out of the Court’s jurisdiction over crimes against humanity and war crimes for ten years, and this position would be renewable. The Like-Minded Group of States strongly opposed the idea of ‘official act’. The second proposal established an optional protocol allowing states parties to opt out of the Court’s jurisdiction on war crimes for three years, and this position was not renewable.38 The final package to come out on the night of 16 July included an optout declaration for states parties for war crimes for seven years after the entry into force of the Statute for that state.39 The French delegation directly negotiated this provision and happily accepted the proposed 35 Bureau Proposal, A/CONF.183/C.1/L.53. 36 Bureau Proposal, A/CONF.183/C.1/L.59. 37 Proposal of the United States, A/CONF.183/C.1/L.70. 38 Elizabeth Wilmshurst, “Jurisdiction of the Court”, Roy Lee, ed., The International Criminal Court, The Making of the Rome Statute (1999), 137. 39 Article 124.

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seven-year time frame. This provision, described by some NGOs as “a license to kill” for states, as they would escape ICC jurisdiction, has been one of the most criticized of the Statute.40 In a compromise between the Korean and the U.S. proposals, the package deal also retained two preconditions to the Court’s jurisdiction: first, the Court would have automatic jurisdiction following ratification by states parties or a positive declaration by non–states parties, and second, the Court could exercise its jurisdiction if either the territorial state or the state of nationality of the accused were party to the Statute or accepted the jurisdiction.41 2. An Independent Prosecutor The ILC draft statute did not envisage that a Prosecutor would initiate an investigation on his or her own initiative. It gives that role only to states parties or the Security Council. Many delegations, however, as in the first sessions of the Ad Hoc Committee in 1995, defended “on behalf of the international community” an independent Prosecutor’s prerogative right to investigate crimes in proprio motu.42 This provision became one of the basic principles of the Like-Minded Group and was strongly defended by civil society as a major safeguard for the independence of the Court.43 Opponents defending the sole legitimacy of the Security Council to act on behalf of the international community or to qualify serious crimes feared the risks of politicization. During the 1996 session of the Preparatory Committee, Argentina raised the idea of judicial control (a judicial overview of the Prosecutor’s decision to open an investigation), but the suggestion was not included in the report of the session.44 This judicial check nevertheless proved to be the basis for an agreement. During the March/April 1998 session, Argentina and Germany introduced a compromise proposal requiring the Pre-trial Chamber to authorize an investigation at the Prosecutor’s request when the Chamber found there to be a reasonable basis to proceed. 40 Pierre Sané, Secretary-General of Amnesty International, in “International Criminal Court: ‘Crippled At Birth?’”, 20 July 1998, (online): www.bu.edu/globalbeat/pubs/ amnesty072098.html. 41 Articles 12 and 13. 42 Morten Bergsmo and Jelena Pejic, “Article 15”, in Triffterer, ed., Commentary of the ICC Statute (Baden-Baden, Nomos, 1999), 360. 43 See for example Amnesty International, The Quest for International Justice, IOR 40/006/1997, London. 44 UN Doc A/AC.249/CRP.5.



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When introducing this proposal, the Argentine delegation insisted on “the need for victims to have a voice” and considered it “essential to give the victims an opportunity to make representations to the Prosecutor”.45 In Rome, the majority of the delegations accepted this draft provision. Sixty of them spoke strongly in favor of it. Others, including the United States, China, Cuba, India, and Russia, remained strongly opposed to such power for the Prosecutor. Article 15 finally provided for the Prosecutor to initiate investigations in proprio motu on the basis of information received from sources including NGOs and victims, subject to authorization of the Pre-Trial Chamber. Furthermore, the possibility of frivolous initiatives was limited by a framework of procedural safeguards, such as the rules on admissibility, the right of states to challenge the jurisdiction of the Court, and the complementarity regime. As unanimously acknowledged by all negotiators, the role of NGOs was central to the adoption of an independent Prosecutor. Their steadfast advocacy work for an independent Court made a huge difference, not only in garnering support for the LMG position and the position of a few other delegations but also by maintaining a consistent pressure on achieving this aim. 3. The Role of the Security Council In addition to the Prosecutor and the ICC itself, the Security Council is the third mechanism for triggering a Court case; the ILC draft statute further defined the Council’s major roles. The views regarding the nature of the relationship between the Security Council and the ICC were strong and often opposed. The ILC draft statute entitled the Council to refer to the Court matters concerning threats to peace and security according to Chapter VII of the UN Charter. The Security Council also had to qualify an act as a crime of aggression before the Court could take jurisdiction over it. Finally, the Court could not prosecute cases dealt with by the Security Council in accordance with Chapter VII, unless the Security Council granted permission. The preparatory negotiations focused merely on whether the Security Council could refer a ‘case’ or more broadly a ‘matter’ to the Court. The 45 Silvia Fernández de Gurmendi, “The Role of the International Prosecutor”, in Roy Lee, ed., The International Criminal Court: The Making of the Rome Statute (1999), 184.

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Preparatory Committee ultimately decided to exclude the referral of cases in order to preserve the ability and independence of the Court to decide on prosecutions. The draft article discussed in the Rome Diplomatic Conference left open two more options for the referral of a matter or situation: the referral of a matter giving more direction on the prosecutions and the referral of a situation leaving the Court entirely free to decide upon which investigations to open.46 The other part of the Security Council’s mandate, the power to veto an investigation or prosecution, raised a particularly high degree of controversy. In August 1997, the Singapore proposal provided a basis for compromise. The proposal stated that, on the basis of Chapter VII, the ICC could act unless the Security Council expressly decided otherwise.47 The delegation of Canada proposed that the Security Council be permitted to defer a decision for a period of twelve months. This type of ‘veto’ would be, in practice, much more difficult to achieve as the investigation or prosecution would already be ongoing. As member of the Like-Minded Group, the UK was the first P5 member to accept the compromise and specify a new draft to be discussed at the Rome Diplomatic Conference. States were still divided in Rome between those in favor of the ILC draft statute (mainly the remaining P4) and those supporting the Singapore proposal, as well as the delegations opposing any role whatsoever for the UN Security Council. The Bureau Paper proposed different versions of the Singapore-UK proposal whose principle widely received state support, particularly from the Like-Minded Group of States.48 A strong minority comprising the United States and France garnered this support. At the end of the Conference, Article 16, as part of the package deal, was finally adopted. It states: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

NGOs strongly supported the Singapore compromise. Their unwavering campaign for the Court to be free of strong interference from the Security Council was finally successful. Amnesty’s Christopher Hall commented that “increasing effectiveness of the coordinated lobbying of the 46 A/CONF.183/2/Add.1, draft article 10. 47 Singapore Proposal, A/AC.249/WP.51. 48 A/CONF.183/C.1/L.53.



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316 members of the NGO Coalition for an ICC…was marked”.49 The role of the Security Council in relation to crimes of aggression remained unresolved, as this type of crime could not be defined at the end of the Rome Diplomatic Conference. VI. The Key Role of States The multilateral treaty negotiated by states, creating a new institution and jurisdiction outside of the UN system, has enhanced the definition of state prerogatives and obligations. States have a predominant role to play in the system of the International Criminal Court. The ICC is complementary to national jurisdiction, as the Court will have jurisdiction only when states are unable or unwilling to duly investigate and prosecute. Thus, within the Rome system, states keep the primary obligation to prosecute those responsible for the gravest crimes. This is contrary to the primacy of tribunals in the former Yugoslavia and Rwanda over national jurisdictions. This principle of complementarity was referred to in the preamble of the ILC draft statute, under which the Court would have jurisdiction when national criminal procedures were unavailable or ineffective. First discussed at the August 1996 session, the provision on complementarity was criticized by many delegations as being too vague, incomplete or intrusive. Debated again at the August 1997 session, a good draft compromise was achieved, although a minority of states still resisted. It appeared that these states were unwilling to prosecute and also feared that the provision infringed upon state sovereignty. As to avoid reopening a text already supported by a huge majority of states, the coordinator in Rome did not hold informal meetings. Instead, he held many bilateral meetings specifically with the few opposed delegations in order to better answer their concerns. At the very end of the Conference, following a Mexican proposal, two modifications were made. To qualify the unwillingness, there must be an “unjustified” instead of an ‘undue’ delay, and to characterize the unavailability, the national judicial system must suffer a “total or substantial collapse” rather than ‘total or partial collapse’.50

49 Michael Struett, The Politics of Constructing the International Criminal Court (New York: Palgrave Macmillan, 2008) 104. 50 Article 17 (2): In order to determine unwillingness in a particular case, the Court shall consider, (…) whether (…): (b) There has been an unjustified delay in the proceedings

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While incorporating the Rome Statute into their own national legislation, many states used this provision, together with the Preamble’s “recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” to include the universal jurisdiction to try genocide, crimes against humanity, and genocide before domestic courts. States parties also had a duty to cooperate with the Court. In Rome, the coordinator on cooperation issues had to negotiate each of the eleven grounds for exception proposed by only a few states. Finally, a strong and clear duty to cooperate was adopted. The protection of sensitive national security information (Article 71) was the only means by which this obligation could be weakened in a proceeding. Furthermore, states parties also had the obligation to enforce the judgments of the Court. Lastly, the Rome Statute established an Assembly of States Parties, created by a proposal of the French and U.S. delegations. This Assembly may adopt further statutory documents (such as the Rules of Procedure and Evidence and the Elements of Crimes of the Court), consider and adopt the budget, examine and take action on any questions relating to noncooperation, and elect the judges and the Prosecutor. The great achievements of the Rome Statute are many. It created an entirely new model of justice: an international court with an independent prosecutor. It codified new crimes, in particular those of sexual violence, granted new rights to victims, and acknowledged the need for gender balance. But these innovations were not limited solely to the new Court. They would carry further into states parties, and to some extent, non-states parties as well. As states parties have the obligation to implement the Rome Statute into their legislation, little by little, innovative norms of fighting impunity for the worst crimes will be reproduced at the national level. It is, nonetheless, up to the states to render this justice effective. Their involvement will determine the development, growth, or weakening of these important achievements throughout the Court’s life.

which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (3): In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obstain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

AFTERWORD I. The Rapid Entry into Force of the Statute Following its adoption very late at night on 17 July at the headquarters of the FAO, the Rome Statute was opened for signature by all states present in Rome. Ten delegations immediately signed it. The following day, twentysix more states signed at an official ceremony, held under the auspices of the Italian government and in the presence of the UN Secretary-General Kofi Annan and the main negotiators at the Palazzo dei Conservatori at the Campidoglio. Twenty-six states signed the Statute this same day. In his speech Kofi Annan declared: Until now, when powerful men committed crimes against humanity, they knew that as long as they remained powerful no earthly court could judge them. Even when they were judged—as happily some of the worst criminals were in 1945—they could claim that this is happening only because others have proved more powerful, and so are able to sit in judgment over them. Verdicts intended to uphold the rights of the weak and helpless can be impugned as ‘victors’ justice’.  Such accusations can also be made, however unjustly, when courts are set up only ad hoc, like the Tribunals in The Hague and in Arusha, to deal with crimes committed in specific conflicts or by specific regimes. Such procedures seem to imply that the same crimes, committed by different people, or at different times and places, will go unpunished.  Now at last, thanks to the hard work of the States that participated in the United Nations Conference over the last five weeks—and indeed for many more months before that—we shall have a permanent court to judge the most serious crimes of concern to the international community as a whole: genocide, crimes against humanity, and war crimes. Other crimes, wherever and whenever they may be committed, may be included in the future. The crime of aggression is already mentioned in the Statute.  For the United Nations, this decision has special significance. We never forget that our Organization has its origins in a global struggle against regimes which were guilty of mass murder on a horrendous scale. And unhappily, we have had to deal all too recently, in Rwanda and the former Yugoslavia, with new crimes of the same appalling nature, if not quite of the same magnitude.  By adopting this Statute, participants in the Conference have overcome many legal and political problems, which kept this question on the United Nations agenda almost throughout the Organization’s history.

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afterword  No doubt, many of us would have liked a Court vested with even more far-reaching powers, but that should not lead us to minimize the breakthrough you have achieved. The establishment of the Court is still a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law. It is an achievement which, only a few years ago, nobody would have thought possible.

Following the official ceremony, the Statute remained open for signatures at the UN office in New York. The new global system of justice established by the Statute made many observers think that its ratification would take many years, but after the celerity of its adoption, the celerity of its ratification surprised everyone. On 11 March 2002, during the ninth session of the Preparatory Commission, ten states simultaneously filed their instruments of ratification. The Statute thus reached the total number of sixty ratifications necessary for its entry into force on 1 July 2002, as provided for in the Statute itself. II. The Work of the Preparatory Commission The Statute charged a preparatory commission to draft critical documents that would determine how the Court would function in addition to the Rules of Procedure and Evidence and the Elements of Crimes. The Preparatory Commission held five sessions of fourteen weeks in 1999 and 2000 at the UN Headquarters in New York. Philippe Kirsch chaired the meetings, which were attended by many of the delegates who very often had participated in the negotiation process of the Statute itself. The dynamic of the Commission, negotiating these two basic documents detailing the definitions of crimes and the proceedings as set up in the Statute, was therefore very similar to the procedures of the committees and the Conference that adopted the Statute. The same participants facilitated this second phase of this huge legislative process. The French government organized an international seminar on victims’ access to the International Criminal Court hosted in Paris from 27 to 29 April 1999. Governments’ delegates, experts, and NGOs representatives agreed on detailed draft rules on victims’ rights that were later the basis of the negotiations. The International Institute of Higher Studies in Criminal Sciences also hosted two intersessional meetings in Syracuse, Italy, in June 1999 and from January to February in 2000. To facilitate the final adoption of the Rules of Procedure and Evidence, the Canadian government hosted an intersessional meeting of the coordinators and sub-coordinators in

afterword171 Mont-Tremblant from 30 April to 5 May in 2000. The Preparatory Commission to the ICC concluded its work on 6 June 2000. III. The CICC Evolution The Coalition for the International Criminal Court’s Steering Committee met in October in New York and decided that the CICC should continue its mandate to support a fair, effective, and independent international criminal court. In particular, the CICC focused on organizing a global signature and ratification campaign in addition to monitoring and contributing to the work of the Preparatory Commission. The CICC Steering Committee expanded to include more regional representation. The CICC directly contributed to the establishment of national and regional coalitions to directly engage with their respective regional authorities. All NGOs working on the ICC focused their own efforts on achieving the sixtieth ratification as quickly as possible for the Rome Statute’s entry into force on the earliest possible date. International human rights organizations and national organizations alike, and in particular those from developing countries, were involved in the process. A number of the NGO representatives continued to meet with state representatives during the Preparatory Commission sessions, allowing for further discussion of issues and development of common strategies. This helped the NGO representatives acquire technical expertise during these sessions, which in turn helped explain and encourage support for the Statute. Officials directly involved in organized conferences around the world further advocated the uniqueness and importance of the treaty. Civil society’s expansive activity to garner support for the ICC as well as for individual political leaders in governments and parliament was a decisive factor in convincing enough states to sign and ratify the ICC Rome Statute. The dissemination of the CICC’s newsletter, The Monitor, covering the efforts and achievement of the ratification campaign and the advances of the Preparatory Commission negotiations, greatly contributed to raise further awareness and maintain critical momentum. The CICC now has 2,500 NGOs as members, including regional and national coalitions in 150 countries, and continues to support ratification efforts and the adoption and implementation of legislation. Its secretariat has opened various offices in the world, including one in The Hague to liaise daily about the work of the Court, and meetings are also held at the Court between ICC officials and diplomats with members of the

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coalitions. The CICC is also organized into a dozen thematic groups to focus on specific issues of particular importance for NGOs and the Court.1 The key part of NGOs during the negotiations enabled NGOs to continue to play a unique role at the Court after the adoption of the Statute. The Assembly of States Parties recognized the special status of the CICC, the contributions it made to the establishment of the Court, and the CICC’s coordinating and facilitating role.2 The CICC facilitates the presence of NGOs during all sessions of the Assembly of States Parties and during all other formal meetings with states or the ICC itself. Every six months, through the coalition, the ICC and NGOS hold bilateral strategy meetings. Individual NGOs have also developed their own working relationships with the Court and are direct interlocutors for certain members of the ICC Office of the Prosecutor, Registry, or in some cases, for both. The critical perspective of NGOs continues to be an important source of support for the Court to ensure that it indeed be fair, independent, and effective. IV. The United States : From Aggressive Opposition toward Cooperation Although it opposed the adoption of the Rome Statute, the U.S. actively participated in the work of the Preparatory Commission along with every other state present in Rome. On 31 December 2000, the Clinton Administration signed the Statute. On 6 May 2002, however, the Bush administration decided to nullify the signature and thereafter launch an aggressive campaign to undermine the Court. On 2 August 2002, the American Servicemembers’ Protection Act (ASPA), also known as the Hague Invasion Act, came into force to: protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party.

ASPA authorizes the President to use: all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.

1 See CICC website: www.iccnow.org/?mod=teams. 2 Recognition of the Coordinating and Facilitating Role of the NGO Coalition for the International Criminal Court, Resolution ICC-ASP/2/Res.8, 4th plenary meeting,

afterword173 ASPA blocks assistance to the Court from any level of federal or state government as well as from all courts. Also, in its characteristic combination of sweeping prohibitions followed by numerous exceptions to them, it purports to prohibit military aid to states parties to the Statute, except for major allies, NATO countries, and Taiwan. It also allows the U.S. President waivers to continue providing military assistance to other countries if he considers this in the national interest. The position of the United States has gradually evolved into one of principled engagement with the ICC. The U.S. supported the Security Council’s referral of the situation in Darfur in 2005 and Libya in 2010 to the ICC Prosecutor. The U.S. policy changed more radically following Obama’s election. Since 2009, the United States has sent observer delegations to the the annual sessions of the Assembly of States Parties to the ICC Statute, including a very large delegation to the Review Conference of the Rome Statute in 2010. The United States has also provided important cooperation to the ICC and the Office of the Prosecutor, in particular for the protection of witnesses. In 2013, complying with the Prosecutor’s request, the United States transferred an individual under an ICC arrest warrant to The Hague from the U.S. Embassy in Kigali, where the individual had been seeking safety. V. As of Today The Rome Statute has been ratified by 122 states from all world regions, though Asian and Middle Eastern states are presently less represented than others. At the end of its first decade, the Court had a number of cases at various stages of the judicial process. The defendants represented varying levels of responsibility, including heads of state. Initially, all of the cases came from Africa. In accordance with the Statute, a Review Conference occurred in Kampala from May to June 2010. At this Conference, Article 124, which allowed states to exclude the prosecution of war crimes, committed either on their own territory or by their own nationals, for a seven-year period after ratification, was held under review. France and Colombia were the only two states that had, prior to the Review Conference, adopted the 11 September 2003, (online): www.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP -ASP2-Res-08-ENG.pdf.

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opt-out declaration provided in this Article. During the review, some delegations debated that the retention of Article 124 would facilitate the adherence of other states to the Rome Statute and thus contribute to its universality. Other delegations supported the deletion of Article 124 based on its categorized temporary nature as a ‘transitional provision’; they also added that the low number of states parties that had made declarations under it evidenced its lack of utility in general. In the end, Article 124 was maintained even though no states chose to use it. France had withdrawn its declaration in 2008, and Colombia did not renew its own declaration, which had expired on 1 November 2009. In Kampala, the crime of aggression was also finally defined; the proceedings adopted for the ICC’s jurisdiction for such crimes were also determined. These, however, would not enter into force until 2017. Amendments to Article 8 of the Statute have enabled the Court to expand its jurisdiction over these newly inserted definitions of war crimes. Stocktaking exercises of International Criminal Justice also took place during the Review Conference in Kampala. These included discussions on the views and designs for future strategies concerning four significant aspects of the Court: the impact of the Rome Statute system on victims and affected communities, peace and justice, complementarity, and cooperation.3 The Court operates during ongoing conflicts and volatile situations. In order to strengthen its impact in concerned countries, the Court must be known and fully utilized by the communities affected by conflict. However, heavy practical and legal obstacles still affect victims’ access to the Court. Trying massive crimes, ensuring effective victims’ partici­pation in the ICC proceedings, and organizing appropriate legal representation for these victims have still to be adequately addressed in a way that strengthens the effectiveness of the Court. Furthermore, at the time of this book’s publication, Africa remains the sole continent where the Court operates, and in order for it to become more universal, the Court needs to expand its continental reach and open investigations in countries that do not or cannot prosecute crimes under their own jurisdiction. The fifteenth anniversary of the adoption of the Rome Statute takes place in a context of a severe global financial crisis from which the Court itself is not immune. States parties have refused to increase the Court’s budget. This directly affects the Court’s universality, effectiveness, and 3 See ICC website: review%20conference.aspxs.

www.icc-cpi.int/en_menus/asp/reviewconference/Pages/

afterword175 ability to carry out both new investigations and the rules of due process, through reform of legal aid granted to the accused and to victims. Aside from the direct impact of a restricted budget on the activities of the ICC, it must be remembered that the role of the states in their cooperation with the Court is the central issue. States have the ability to support, enforce, and execute arrest warrants; the place that states intend to grant the ICC and, more broadly, international criminal justice, will be a deciding factor in determining the peaceful settlement of conflicts and the establishment of lasting peace on an international scale.

CONCLUDING REMARKS: TOWARD A NEW MULTILATERAL DIPLOMACY The Rome Statute is a formal legal document deliberately created in officially authorized negotiations and debates following prescribed procedure and techniques and ending in a vote. All of this took place within a standing political body, the United Nations. Moreover, many provisions of the Statute have the effect of law for the judges, staff and officials of the Court, and for the countries that have ratified the Statute. Other parts of the Statute have a constitutional character since they establish and prescribe the organization and functions of a new entity with a legal personality. Thus, in achieving the Rome Statute, the government officials and diplomats in the negotiations appear in many ways to have been acting like legislators. In fact, some international law specialists have acknowledged this and claimed that it is not a legitimate role for the representatives of governments at an international organization.1 Others concede that this was an appropriate way to get a charter for an international organization like the Court, but are concerned that it sets a negative precedent for the creation of other kinds of international law. These persons have the traditional belief that diplomats should not legislate international law, which should derive from the practice of nations. That may be a legitimate concern, but it is difficult to see how such an effective and detailed document as the Rome Statute could have been created in any other way. The establishment of a complete new international organization not part of the United Nations system is very rare. The best and most complete comparison is probably with the negotiations for the United Nations Charter. A larger question is whether the negotiations for the Statute show us a new or substantially further developed kind of multilateral diplomacy. Certainly, the negotiation of multilateral treaties is not new. Hundreds of them have been created since the start of the United Nations and many of these are about a complicated subject. However, some of the features of the Rome Statute negotiations are relatively new and have appeared only

1 For a general discussion of the negotiation of the Rome Statute, see Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law (Ardsley, NY: Transnational Publishers, 2002), 13, 108–109.

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a few times such as those for the Mine Ban Treaty for the prohibition of land mines, which was adopted just before the ICC negotiations began. These features included a large and powerful presence of organized civil society using coalitions that bring together nongovernmental organizations with diverse interests, but commitment to a single goal or outcome that will serve those interests. There have been like-minded groups of governments in international negotiations for a long time, but these groups are now much more formally organized as compared to the informal caucuses of the past. These groups are taking their place in influence and impact alongside the more traditional groups at the UN such as regional caucuses or the Non-Aligned Movement. As in domestic lawmaking, the legislative activity that produced the Rome Statute was an almost infinitely complex interaction of factions, external events, multiple actors, and individual personalities. Although this activity lacked the discipline provided in some national parliaments by parties, the caucuses and committed groupings among governments and within civil society helped to define positions and garner support for them. These groups reduced the overall number of individual positions, helped to define common ground, and made compromises easier. Many aspects of the ICC negotiations seem to show that new forms and techniques of multilateral diplomacy were in fact at work. These include the complex interplay between the main actors in the negotiations including the United Nations and civil society, the advanced development of intersessional meetings to support and speed up the formal sessions, and a sense among many participants that what they were creating was especially important because of its responsiveness and service to the lives of individuals. This feeling was behind the eventual determination to insist and not concede on the fundamental elements of the court that would make it free, fair and independent and the willingness, in the end, to take a vote that would secure this kind of court.

A NOTE ON SOURCES AND RESEARCH METHODS For this book and in our research for it, we used almost entirely primary sources: personal interviews with participants, and their writings and personal materials. We interviewed participants from all the main actors in the negotiations.1 We, of course, wanted their information about all aspects of the negotiations, especially to help us understand the complicated simultaneous interconnections between events and influences and actions. They have been generous with us, especially in sharing their own notes, journals, and internal documents and memoranda. Individual people were the ultimate actors who participated in, conducted and shaped the negotiations, regardless of their group or national affiliations. Accordingly, this record is about them and what they did. Our sources therefore combine interviews with our own personal notes, experiences and recollections, especially from the diplomatic conference in Rome. For the three of us, the negotiations were an important and profound personal experience. In our interviews it was clear that many other participants felt the same way. The perspectives of many different actors also helped us to triangulate not only what happened in a particular event or sequence of actions, but also how those developments appeared to those engaged in them. Very few participants and the groups and governments and institutions that they represented understood everything that was happening at any one time. This element of limited comprehension and its consequences was one of the most pronounced aspects of the negotiations. At the same time, it is a standard and inevitable part of any kind of complex legislative action. Persons experienced in such actions, whether in parliaments or in diplomacy, realize this feature and take steps to counteract it. From considering realities such as these, we realized that the story of the negotiations contains variables, nuanced influences and interactions, which make its description a difficult and a stimulating task. We also saw that an important part of the drama of the last days of the Rome Diplomatic Conference was that suddenly and finally, all parties and players came together in a single set of actions that all could understand and respond to both politically and psychologically. 1 See List of Interviewees, supra.

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There is a huge and explosively growing literature on the negotiations. Although some of this describes memories and events and has been enormously helpful for us, most of it consists of technical explanation of specific issues in the negotiations and their outcomes. We have mined this major part of the literature for bits and nuggets of information about the conduct of participants and the events that went into shaping these issues as they now appear in the Rome Statute. These have been particularly helpful in understanding how compromises were achieved and the status at any one moment of the constantly shifting dynamics of groups, individuals, governments, and organizations. Just as we have emphasized participants in our interview research, in reviewing the literature we have given most of our attention to the writings of firsthand participants and observers. As we acknowledge in our bibliography, some of these writings were absolutely indispensable sources for firsthand accounts from those responsible for the negotiations. In both the interviews and our use of literature we have tried to go well beyond North America and Western Europe. There were important groups and leadership from both Latin America and Africa, and the historical experience of countries in both continents was centrally significant in the psychological and emotional momentum of the negotiations, and in the bonding among so many of the participants. The United Nations has, of course, been a rich source of official documents, press releases and internal materials. It has also been one of the few places to find very ephemeral documents such as conference room papers, non-papers, and momentary Bureau proposals. These have been indispensable ways to authoritatively establish dates, events, and official relationships within the United Nations Secretariat. Documents from the General Assembly and its Sixth Committee have been essential in understanding reactions elsewhere in the United Nations, and the larger community of governments and organizations surrounding it, to the work of the sessions of the Preparatory Committee and to the advent of the Rome Diplomatic Conference. Unfortunately, and as many researchers have observed ruefully, the documents of the meetings in the negotiations have verbatim records only of plenary sessions. Although a full account of what went on in any meeting of a working group or committee can largely be pieced together from its reports to plenary sessions and to the General Assembly together with the texts of speeches and interventions and temporary conference room documents that are available, there are still gaps in the raw material of legislative history. We hope this book will fill some of those gaps in information about specific legislative events and processes.



a note on sources and research methods181

Through these United Nations materials we have been able to follow the growing support in the UN as an institution, as a community, and in its organs for the development of the Rome Statute and the differences and consistencies among representatives of the same government speaking in different parts of the United Nations. In them we also saw the severe logistical challenges United Nations officials serving the Preparatory Committee and the Rome Diplomatic Conference faced and largely overcame. The UN documents brought out starkly the poverty of the United Nations, and have helped us describe the consequences of it for the UN’s support of negotiations, especially in the backwardness of its conference technology. The struggle of the UN staff with these limitations and defects is an important sub-story in itself, with major significance for future negotiations. Nongovernmental organizations and particularly the CICC have afforded us a vast body of materials. There are publications, papers on specific issues, reports, internal materials of both individual NGOs and the Coalition, memoranda, and, especially at the Rome Diplomatic Conference, newsletters and broadsheets produced primarily to inform participants in a meeting. The issue and position papers that NGOs presented, either in advance of a meeting or in response to requests during it, are especially significant because they demonstrate the expertise and objectivity on which many delegations came to rely. These expressed the roles of NGOs as both sources of reliable expertise and advocacy. They carried out the early understanding of NGOs that to be heard as advocates, they must be trusted as experts. These materials therefore told us a great deal about the functions and development of the roles of NGOs and offered yet one more window into the state of the negotiations at any stage. In them we also saw the confounding variety and number of issues, interests, and technicalities before the negotiations which no one delegation, however large, could entirely master. Our research has given us a sharp sense of the sweep, complexity, and breadth of the negotiations for the Rome Statute during a particular time with its own special circumstances, trends, and happenings. In these characteristics and current events lie the importance of this international phenomenon as an adventure and an achievement for future creations of international law and its institutions.

Photo 1. Opening plenary meeting of the Rome Diplomatic Conference, 15 June 1998. Credit: CICC.

Photo 2. NGO representatives at a press conference in Rome, June 1998: Pierre Sané (Amnesty International), William R. Pace (CICC), Jelena Pejic (LCHR), and Gustavo Gallón (Colombian Commission of Jurists). Credit: CICC.

Photo 3. Director of the UN Codification Division, Roy Lee, and Philippe Kirsch, Chairman of the Committee of the Whole, at Rome, July 1998. Credit: CICC.

Photo 4. David Scheffer, head of the U.S. delegation, at a press conference in Rome, July 1998. Credit: CICC.

Photo 5. NGO representatives applauding at the final session of the Committee of the Whole at Rome, 17 July 1998. Credit: CICC.

Photo 6. NGO representatives applauding at the final session of the Committee of the Whole at Rome, 17 July 1998. Credit: CICC.

Photo 7. ICC advocate Emma Bonino hugging a delegate at the final Committee of the Whole at Rome, 17 July 1998. Credit: CICC.

Photo 8. Adriaan Bos signs the Rome Statute on behalf of the Netherlands. Credit: CICC.

APPENDIX A

TABLES Table I. Drafting the International Criminal Court Treaty 1991 9 December

General Assembly adopts the International Law Commission’s Code of Crimes against the Peace and Security of Mankind and urges to revive consideration for an International Criminal Court. 1994

24 January

Negotiations begin with the 49th United Nations General Assembly session of 1994. ILC proposes a final draft version of the Statute and recommends that the UN General Assembly convey an international conference for adopting the Statute.

November

ILC project arrives at the French Ministry of Justice’s Department of International and European Affairs. 1995

January

First interministerial meeting on the ILC project.

10 February

Formation of the Coalition for an International Criminal Court (CICC) in New York.

March

UN Secretariat informally discusses ILC draft issues with certain UN member states.

3–13 April

1995 Ad Hoc Committee on the Establishment of an International Criminal Court convenes for the first time. Adrian Bos is elected chairman, the major issues of the ILC’s draft statute are discussed, and the dates of 15 June–17 July 1998 are decided upon for the Rome Diplomatic Conference.

August

The U.S. Ministry Department of Defense learns of the negotiations and voices its opposition.

14–25 August

Ad Hoc Committee on the Establishment of an International Criminal Court convenes for the second time. The Ad Hoc Committee prepares a report to present to the General Assembly.

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14–20 October

NGOs convene a meeting in Colombia for the Non-Aligned Movement to discuss the Ad Hoc Committee’s report.

30 October

The Ad Hoc Committee introduces its report to the General Assembly’s Sixth Committee. The Assembly debates whether to maintain the Ad Hoc Committee or immediately create a Preparatory Committee instead.

17 November

The General Assembly Sixth Committee meets informally for the third time to discuss the creation of a Preparatory Committee to draft a consolidated text of a statute for submission to a conference of plenipotentiaries.

29 November

The Sixth Committee adopts by consensus the Ad Hoc Committee’s proposed draft resolution after the inclusion of minor revisions.

11 December

The General Assembly adopts the Resolution on the Establishment of an International Criminal Court by consensus and without further discussion. 1996

25 March–12 April The Preparatory Committee convenes its first session on the Establishment of an International Criminal Court. Adriaan Bos is elected chairman of the Preparatory Committee. 10–14 July

Informal intersessional meeting convenes in Syracuse, Italy, to discuss general principles of criminal law, rules of evidence and procedure, and states’ cooperation with the International Criminal Court. Delegations simplify the compilation of proposals for the draft statute.

12–30 August

The Preparatory Committee convenes its second session. The Preparatory Committee compiles more than three hundred amendments and revisions to the ILC draft text.

17 December

The UN General Assembly adopts a resolution setting forth the dates for third, fourth, fifth, sixth, and seventh Preparatory Committee sessions and welcomes Italy’s offer to host the Rome Diplomatic Conference in 1998. 1997

11–21 February

The Preparatory Committee convenes its third session.

tables193 On the basis of a draft text prepared by the International Committee of the Red Cross, a proposal is introduced to define rape as a war crime under the description of being a grave beach. 4–15 August

The Preparatory Committee convenes its fourth session.

14 September

The fourteen nations of the Southern African Development Community set out ten basic principles as benchmarks for an independent and effective international criminal court.

21 October

The South African ambassador to the United Nations reads the ten principles adopted at the SADC meeting to the Sixth Committee of the 52nd UN General Assembly.

1–12 December

The Preparatory Committee convenes its fifth session. 1998

19–30 January

An intersessional meeting in Zutphen, the Netherlands, convenes. The meeting compiles a Zutphen Report, which consolidates the various draft texts produced during the two years of Preparatory Committee meetings.

5–6 February

Representatives of twenty-five African governments convene in Dakar, Senegal, to discuss the establishment of an international criminal court. The meeting adopts the Dakar Declaration, which calls for an effective, independent court.

16 March–3 April

The Preparatory Committee convenes its sixth and final session. Definitions of crimes are approved, and there is consensus on a complete section regarding the creation of the ICC, including full agreement that the Court should be established by treaty. The rights of victims in trials are secured in addition to the provisions of the Singapore proposal, which place limited obligation on the Court to accept Security Council requests for the deferral of action on a case. Issues on the provision of security information to the Court and on jurisdiction over war crimes remain contentious.

1 May

U.S. Undersecretary of Defense for Policy, Walter B. Slocombe, demands a guarantee that no U.S. service member

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appendix a will ever appear before the International Criminal Court and declares this to be a fixed position of the United States.

4–8 May

Intersessional meeting of the Preparatory Committee bureau and the newly nominated Bureau of the Diplomatic Conference convene in Courmayeur, Italy, to prepare for the Rome Diplomatic Conference.

1 June

The United Nations advance team begins setting up offices and equipment in the The Food and Agriculture Organization building, where the Rome Diplomatic Conference will convene.

8 June–15 June

Government delegations, NGO representatives, and the members of the Bureau begin to arrive for the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (the Rome Diplomatic Conference) in Rome, Italy, which will convene from 15 June–17 July 1998.

15 June

The General Committee convenes its first session. Kofi Annan opens the session and presides over the election of Professor Giovanni Conso as the permanent president of the Conference, whom the Preparatory Committee had nominated. Conso leads the General Committee in adopting a provisional agenda and rules of procedure. The General Committee elects the vice presidents and chairmen of the Committee of the Whole and the Drafting Committee; the General Committee appoints twenty-four members for the Drafting Committee and also appoints a Credentials Committee. The General Committee hears 167 speeches from governments, 22 from intergovernmental organizations, and 5 from NGOs. All speakers agree that genocide, war crimes, and crimes against humanity should be the core crimes that the Court will try.

16 June

The Committee of the Whole, chaired by Philippe Kirsch, convenes its first meeting. The Committee of the Whole decides that Part 1 of the Statute, on the establishment of the Court, should go to the Drafting Committee without further negotiation.

tables195 The Committee of the Whole decides that a few articles of Part 3, on general principles of criminal law, are ready for the Drafting Committee while others require further discussion. Working groups and their chairs are established to deal with specific topics and parts of the draft text. 18 June

The General Committee recesses.

Table II. Selective UN Authorizations and Resolutions 11 December 1946 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, UNGAOR, 55th Session, UN Doc. A/RES/95 (I) (1946)

The UN General Assembly affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal (“the Nuremberg Principles”).

21 November 1947 Formulation of the Principles Recognized in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal, UNGAOR, 76th Session, UN Doc. A/RES/177 (II) (1947)

The UN General Assembly directs the International Law Commission (ILC) to formulate “the Nuremberg principles” and to prepare a code of offences against the peace and security of mankind.

9 December 1948 Prevention and Punishment of the The UN General Assembly passes Crime of Genocide, UNGAOR, 67th resolution on same day as its adoption Session, UN Doc. A/RES/260 (III) (1948) of the Genocide Convention, which calls on the International Law Commission to prepare a statute for the international criminal court anticipated by Article VI of the Convention. 10 December 1948 International Bill of Human Rights, UNGAOR, 68th Session, UN Doc. A/RES/217 (III) (1948)

The UN General Assembly proclaims Universal Declaration of Human Rights in Paris, setting out fundamental human rights to be universally protected.

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appendix a 12 December 1950

Formulation of the Nuremberg Principles, UNGAOR, 75th Session, UN Doc. A/RES/488 (V) (1950) International Criminal Jurisdiction, UNGAOR, 80th Session, UN Doc. A/RES/489 (V) (1950)

The ILC presents its text of the Nuremberg Principles to the UN General Assembly, which adopts them. The UN General Assembly establishes a committee in charge of drafting a statute for the International Criminal Court.

31 August 1951 Draft Statute for an International Criminal Court, UNGAOR, 7th Session, Supplement No. 11, UN Doc. A/2136 (1952)

The UN General Assembly Committee on International Criminal Jurisdiction submits report and draft statute for an international criminal court.

20 August 1953 Report of the Committee on International Criminal Jurisdiction, UNGAOR, 9th Session, Supplement No. 12, UN Doc. A/2645 (1954)

A new General Assembly Committee reports on the draft statute reviewed in light of member state comments.

4 December 1954 Draft Code of Offences Against the Peace and Security of Mankind, UNGAOR, 34th Session, UN Doc. A/RES/897 (IX) (1954)

ILC reports a proposal for the Code of Crimes to the UN General Assembly.

14 December 1954 International Criminal Jurisdiction, UNGAOR, 66th Session, UN Doc. A/RES/898 (IX) (1954)

UN General Assembly suspends ILC mandates both on draft statute for an international criminal court and on the code of crimes until the crime of aggression is defined.

10 December 1981 Draft Code of Offences Against the Peace and Security of Mankind, UNGAOR, 108th Session, UN Doc. A/RES/36/106 (1981)

UN General Assembly asks the ILC to resume on the draft code of crimes.

tables197 29 November 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UNGAOR, 24th Session, UN Doc. A/RES/40/34 (1985)

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power is adopted by the UN General Assembly.

4 December 1989 Draft Code of Crimes Against the Peace and Security of Mankind, UNGAOR, 46th Session, UN Doc. A/RES/44/32 (1989)

UN General Assembly Resolution 44/32, sponsored by Trinidad and Tobago, asks the ILC to consider an international criminal court as part of its work on the code of crimes.

25 November 1992 Report of the International Law Commission on the Work of its 44th Session, UNGAOR, 67th Session, UN Doc. A/RES/47/33 (1992)

UN General Assembly calls on the ILC to elaborate a draft statute for an international criminal court.

9 December 1993 Report of the International Law Commission on the Work of its 45th Session, UNGAOR, 55th Session, UN Doc. A/RES/48/31 (1993)

The ILC reports a draft statute to the UN General Aseembly. The General Assembly encourages the ILC to continue its work.

25 May 1993 Statute of the International Tribunal for The UN Security Council establishes the Former Yugoslavia, SC Res. 827, UN the International Criminal Tribunal SCOR, 48th Session, 3217th meeting, for the former Yugoslavia. UN Doc. S/RES/827 (1993) October 1994 Report of the International Law Commission on the work of its 46th Session, 2 May–22 July 1994, UNGAOR, 49th Session, Supplement No. 10, UN Doc. A/49/10 (1994)

In Sixth Committee meetings, ILC submits its final version of a statute in a report to the UN General Assembly. It covers institutional and procedural matters, but not definitions of crimes. The report also recommends convening a diplomatic conference to study the draft statute and to conclude a convention on the establishment of an international criminal court.

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appendix a 8 November 1994

Statute of the International Tribunal for Rwanda, SC Res. 955, UN SCOR, 49th Session, 3453rd meeting, UN Doc. S/RES/955 (1994)

The UN Security Council establishes the International Criminal Tribunal for Rwanda.

9 December 1995 Establishment of an International UN General Assembly Resolution Criminal Court, UNGAOR, 95th Session, 49/53 convenes the UN Ad Hoc Committee on the Establishment of UN Doc. A/RES/49/53 (1995) an International Criminal Court to meet 3–13 April and 14–25 August 1995. It is to review major substantive and administrative issues in the last ILC draft statute and to consider, based on that review, arrangements for convening a diplomatic conference. 11 December 1995 Establishment of an International The Sixth Committee resolves to Criminal Court, UNGAOR, 96th Session, establish a Preparatory Committee in UN Doc. A/RES/50/46 (1995) 1996.

Table III. Last Two Weeks of the Rome Diplomatic Conference Friday, 3 July The Bureau decides that a discussion paper including all major positions thus far on Part 2 of the Statute’s draft text should be circulated early next week as a focus for debate. Sunday, 5 July The Bureau convenes a small meeting of 28 of the 150 government delegations at the Canadian Embassy for a discussion on the paper to be issued on 6 July. The invited group is intended to be representative of all of the major groups and broadly held positions at the Rome Diplomatic Conference. Kirsch puts an informal ‘package deal’ paper on the table. There is no change in the failure of delegations to compromise with each other or the fundamental jurisdictional questions in Part 2. Kirsch considerably modifies the text in order to reflect some U.S. positions.

tables199 Monday, 6 July The Bureau issues its discussion paper covering only Part 2: jurisdiction, admissibility, and applicable law. Tuesday, 7 July The United States threatens to oppose the discussion paper unless major changes are made. Wednesday, 8 July Chairman Kirsch opens the Committee of the Whole for a point-by-point discussion of his ‘package deal’ paper from the July 5 meeting, now presented as a document of the Bureau. Kirsch divides the outstanding issues of the negotiations into two sets of questions and announces that the first set will be about the exact categories of crimes the Court will try. Scheffer receives fresh instructions from Washington approved by President Clinton. The U.S. statement strongly opposes giving the Court universal jurisdiction. Thursday, 9 July The Bureau circulates its own proposed set of draft articles on Part 2, based on comments received and further negotiations on the discussion paper. Chairman Kirsch announces the second set of questions, which concerned: whether jurisdiction should be automatic for a state when it ratifies the Statute, partial, or taken under case-by-case consent; whether the Court should exercise jurisdiction only over states that have ratified the Statute; whether states that have not ratified the Statute could voluntarily accept jurisdiction; whether the Prosecutor could start a case in proprio motu, and if so, what safeguards should there be; and what the role of Security Council should be on issues other than the crime of aggression. Friday, 10 July The CICC’s publication, the ICC Monitor, reports the trends and positions taken in the Committee of the Whole debate on the discussion paper. A compendium of draft articles, excluding Part 2, is adopted by the Committee of the Whole. Both agreed articles and those still in debate, excluding those relating to Part 2, are included in the compendium. Saturday, 11 July UN Secretary-General Kofi Annan sends a letter to the President of the United States and the leaders of ten other countries asking them not to undercut the jurisdiction of the Court and to establish the Court at the Rome Diplomatic Conference.

200

appendix a Sunday, 12 July

Ambassador Owada of Japan convenes with Kirsch to try to find a way to attract U.S. support for the final outcome of the Conference. Monday, 13 July Owada holds another meeting, which primarily focuses on discussion of the scope of automatic jurisdiction. Tuesday, 14 July The Committee of the Whole discusses the Bureau proposal paper on Part 2. The debate largely complies with a request from the chairman that delegations respond briefly to a set of questions asking their positions on key issues raised by the paper. Ambassador Owada, on behalf of the Bureau, consults with the delegations of the P5 on the possibility of obtaining a compromise proposal that would both address their concerns and be deemed acceptable to the majority of other delegations. Wednesday, 15 July The ICC Monitor reports the positions of each country participating in the debate on the Bureau proposal as a ‘virtual vote’. Rumors spread among the delegates regarding U.S. Defense Secretary William S. Cohen threatening to remove U.S. troops from Europe if Germany does not change its positions at the Conference. Russia convenes a meeting of the P5 with the goal of finding a common position. Scheffer is informed from Washington that the joint chiefs of staff have approved the P5 proposal. Thursday, 16 July Ambassador Owada’s consultations end. The resulting compromise proposal from the P5 is unacceptable to the great majority of other delegations. Committee of the Whole adopts the text of the Preamble to the Statute. UN Secretary-General Kofi Annan rejects the appeal from the United States for an extension. Chairman Kirsch convenes a group of states from the Bureau and ‘the extended Bureau’. They complete the Bureau proposal, informally known as ‘the package’, a final draft of the Rome Statute, which combined all of the provisions agreed in the PrepCom and in the early weeks of the Rome Diplomatic Conference. The Bureau circulates their draft on the night of 16 July, and it is seen by many states in the early hours of 17 July.

tables201 Friday, 17 July The Committee of the Whole assembles for the last time in the Red Room in the FAO building, and Chairman Kirsch opens the meeting at 7:15pm. Chairman Kirsch’s no-action motion on the proposed U.S. amendment passes. The Committee of the Whole approves the text of the Rome Statute and submits it to the General Committee for adoption. The text is adopted late in the night on July 17 and in the early hours of July 18. Signing of the Statute begins.

APPENDIX B

SADC PRINCIPLES Statement by H.E. Ambassador Khiphusizi J. Jele, Permanent Representative of South Africa, on behalf of Member States of the Southern African Development Community before the Sixth Committee of the 52nd General Assembly, regarding Agenda Item 150: Establishment of an International Criminal Court. The last such meeting of SADC States was held in Pretoria from 11 to 14 September 1997 and culminated in the adoption of ten basic principles of consensus. The principles agreed upon were: 1. Support for the early establishment of an international criminal court; 2. The ICC should be effective, independent and impartial and should operate within the highest standards of international justice; 3. The court should be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective.   Moreover, States should not attempt to shield the accused from justice; 4. The ICC should be responsible, sensitive and give special consideration to victims, particularly women and children; 5. The ICC should be unfettered by the veto of the Security Council; 6. The independence of the prosecutor must be guaranteed by the Statute and should have the necessary powers to initiate investigations and prosecute ex-officials; 7. The ICC must enjoy the maximum co-operation of all States, including non State Parties where possible; 8. The court should have inherent jurisdiction over the crimes of genocide, crimes against humanity and serious violations of the laws and principles applicable in armed conflict. In addition, aggression should also be included within the jurisdiction of the court if consensus can be so reached; 9. The opt-in mechanism ought to apply in respect of treaty based crimes; and finally 10. Human rights must be fully respected in all aspects of the ICC Statute, particularly those relating to the rights of the accused and the right to a fair trial. New York, 21 October 1997

APPENDIX C

DAKAR DECLARATION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT IN 1998 We, the participants of the African Conference in Dakar, Considering: That, since World War II over 250 conflicts, have resulted in more than 170 million victims and entire populations have gross violations of international law such as genocide, crimes against humanity and war crimes; That, in general, national legal systems have failed to hold perpetrators accountable for these offences, thus engendering impunity and preventing all dissuasion and prevention action of conflicts and the crimes which follow; That the United Nations General Assembly, recognising the need for the creation of an international jurisdiction which may sanction the most heinous crimes, has called for a Diplomatic Conference for the adoption of the Statute of the International Criminal Court, which will take place in Rome, from 15 June to 17 July 1998; Affirming: We affirm our commitment to the establishment of the International Criminal Court and underline the importance that the accomplishment of this Court implies for Africa and the world community as a whole. That even though the principle of establishing the International Criminal Court has been widely accepted, it is essential that the Convention and the Statute of the Court be adopted at the Diplomatic Conference in Rome; That the Court shall be independent, permanent, impartial, just and effective; That a complementarity exists between the International Criminal Court and national and regional tribunals, when these are ineffective and where political will is manifestly absent; That the role of national tribunals in the prosecution of these crimes is primordial, nevertheless allowing the International Criminal Court the possibility of determining with respect to genocide, crimes against humanity and

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appendix c war crimes whether these national tribunals are unwilling or unable to carry out legal actions, creating the risk of allowing these crimes to go unpunished; That the International Criminal Court shall be the judge of its own jurisdiction. That the International Criminal Court shall operate without being prejudiced by actions of the Security Council, That the independence of the Prosecutor and his functions must be guaranteed; That the cooperation of all States is crucial in order to ensure the effectiveness of the International Criminal Court; That the Statute of the Court must ensure respect for Human Rights in all phases of the procedure, namely the rights of the suspects, the accused, the victims and the witnesses, and consequently that the Preparatory Committee should intensify its efforts to establish a consensus on the question of victim compensation. That the effectiveness of the International Criminal Court requires on a regular and permanent basis, financial, human and technical resources for its functioning. That the independence and impartiality of the International Criminal Court must not be affected by the method of financing.

Thanks: The President of the Republic of Senegal, His Excellency Mr. Abdou Diouf and his Government, as well as No Peace Without Justice, for having taken the initiative of organising an African Conference in favour of the establishment of the International Criminal Court; Salutes the commitment of the Italian government which has offered to hold the Diplomatic Conference. Encourages the action taken by all those, starting with the representatives of civil society, in particular NGOs, who have worked to ensure the success of the Diplomatic Conference. Dakar, 6 February 1998

APPENDIX D

NGO BASIC PRINCIPLES FOR AN INDEPENDENT, EFFECTIVE, AND FAIR INTERNATIONAL CRIMINAL COURT For more than half a century, the world has debated the establishment of a permanent International Criminal Court (ICC) that would be empowered to try individuals suspected of the most serious crimes under international law. As we near the end of the most violent century in human history, fifty years after the Nuremberg and Tokyo trials, the international community is finally poised to create such a court. The United Nations Plenipotentiary Conference on the Establishment of an International Criminal Court will be held in Rome between June 15 and July 17, 1998 to adopt a convention creating the new international court. The critical issue at the Rome conference will be the kind of court that is created. The NGO Coalition for an International Criminal Court (CICC) is committed to the establishment of an independent, effective and fair permanent International Criminal Court. An International Criminal Court is intended to act as a complement to national criminal justice systems when they fail to perform their primary obligation of bringing to justice the perpetrators of heinous international crimes. Its establishment would help end impunity for egregious violations under international law and ensure that the often repeated promise of “never again” is heeded. The court would also contribute to the deterrence of future atrocities, serve as a standard setting mechanism for international criminal justice, and provide redress to victims of international crimes. At the Rome ICC Treaty Conference, the international community will be in a unique position to ensure the creation of a court that can fulfill these tasks. In order to punish and prevent crimes and to serve as a model, an ICC must be independent, effective and fair. The following principles are considered fundamental by the undersigned organizations, which are members of the NGO Coalition Steering Committee. Their listing is in no way intended to limit espousal or advocacy of other specific principles as determined by the mandate of each member organization: 1. The International Criminal Court should have the broadest possible jurisdiction over the most serious crimes under international law such as genocide, war crimes and crimes against humanity. Its jurisdiction must include crimes committed in non-international armed conflict and crimes against humanity committed in peacetime;

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appendix d

2. The International Criminal Court should have automatic (“inherent”) jurisdiction over genocide, war crimes and crimes against humanity. This means that a state accepts the court’s jurisdiction over these crimes by ratifying the ICC treaty. 3. The International Criminal Court should be able to exercise universal jurisdiction over genocide, war crimes and crimes against humanity in keeping with established rules of international law. No state consent should be required as a condition for the exercise of this jurisdiction. 4. The International Criminal Court should complement national criminal justice systems. The ICC should be able to exercise jurisdiction when it determines that national criminal justice systems fail to carry out their primary responsibility for bringing to justice individuals who commit crimes within the court’s jurisdiction. 5. The International Criminal Court should have an independent Prosecutor empowered to initiate proceedings of his or her own motion. The Prosecutor should be able to initiate proceedings based on information from any source, with appropriate safeguards. 6. The International Criminal Court should be able to perform its tasks free from the interference of any political body, including the UN Security Council and states. While the Security Council should be able to refer situations to the ICC, it should not be able to delay or stop ICC investigations or prosecutions. 7. All states parties, including their courts and officials, should be obliged to comply without delay to orders and requests of the ICC at all stages of the proceedings. 8. The International Criminal Court should ensure suspects and accused the highest international standards of fair trial and due process in all stages of the proceedings. The court should scrupulously adhere to international fair trial standards if justice is to be done and to be seen to be done. 9. The International Criminal Court should ensure justice for the victims of international crimes, including women and children, and should ensure that all aspects of its work take gender concerns into account. 10. No reservations should be permitted to the ICC treaty. 11. The ICC should have long-term and secure funding. Signed By: AMNESTY INTERNATIONAL EUROPEAN LAW STUDENTS’ ASSOCIATION FEDERATION INTERNATIONALE DES LIGUES DES DROITS DE L’HOMME HUMAN RIGHTS WATCH INTERNATIONAL COMMISSION OF JURISTS LAWYERS COMMITTEE FOR HUMAN RIGHTS1 1 Now known as Human Rights First.



ngo basic principles209 NO PEACE WITHOUT JUSTICE PARLIAMENTARIANS FOR GLOBAL ACTION WOMEN’S CAUCUS FOR GENDER JUSTICE IN THE ICC WORLD FEDERALIST MOVEMENT Adopted by the CICC Steering Committee on 14 June 1998

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INDEX African Group  27 Aggression definition of crime  174 draft statute, whether included in  97, 126 Algeria, multilateral treaty, not supporting  30 Annan, Kofi  62–64, 87, 92, 140, 169 Antigua and Barbuda multilateral treaty, support for  30 permanent court, in favor of  29–30 Arab States crimes of sexual violence, position on  150 gender balance and expertise in ICC, position on  151 jurisdiction, position on  163 Rome Diplomatic Conference, objections, proposal and amendments  104 political groupings  103–104 Argentina close relationship of ICC with United Nations, agreeing  30 delegation  95 independent prosecutor, position on  164–165 multilateral treaty, support for  30 permanent court, in favor of  29–30 reference of cases by Security Council, support for  30–31 Rome Diplomatic Conference, coordinators at  99–100 officials at  99 victims’ right to participation, position on  153 war crime and crimes against humanity, support for automatic jurisdiction of court  30 Asian Group  27 Atrocity crimes customary international law, definitions under  59 genocide as  8 impunity, ending  17, 62 International Criminal Court, to be tried by  19 response to  17

Australia consent of interested nations to jurisdiction, support for  31 crimes of sexual violence, position on  150 gender balance and expertise in ICC, position on  151 International Criminal Court, lacking priority for  91 need for court, endorsement of  37 permanent court, in favor of  29–30 proposed revisions to ILC text, resolution for  67 reference of cases by Security Council, support for  30–31 Security Council preventing cases from going to ICC, comment on  31 victims’ right to participation, position on  153 Austria close relationship of ICC with United Nations, agreeing  30 multilateral treaty, support for  30 permanent court, in favor of  29–30 Axworthy, Lloyd  80, 84, 112–113 Barbados pro-death penalty, being  160–161 Bassiouni, Cherif  27, 101–103 Bonino, Emma  71, 188 Bonnafont, Jérôme  110 Bos, Adriaan  18–19, 27, 35, 46, 84–85, 136, 189 Bosnia-Herzegovina crimes of sexual violence, position on  150 Bourdon, William, ICC Statute negotiations, role in  69 Brazil Ad Hoc Committee, delegation to  27 delegation  95 multilateral treaty, support for  30 permanent court, in favor of  29–30 Burundi gender balance and expertise in ICC, position on  151

242

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Cameroon Rome Diplomatic Conference, delegation  132 Canada close relationship of ICC with United Nations, agreeing  30 consent of interested nations to jurisdiction, support for  31 crimes of sexual violence, position on  150 delegation  79–80, 91 gender balance and expertise in ICC, position on  151 group of states to take ownership of creation of court, meeting for  79 Like-Minded Group, leading  113 Mine Ban Treaty, adoption of  75 multilateral treaty, support for  30 need for court, endorsement of  37 Ottawa Process  74–75 permanent court, in favor of  29–30 post-Cold War foreign policy  112 proposed revisions to ILC text, resolution for  67 reference of cases by Security Council, support for  30–31 Rome Diplomatic Conference, coordinators at  99 delegation  112–114 Security Council preventing cases from going to ICC, comment on  31 victims’ right to participation, position on  153 Chile Rome Diplomatic Conference, no-action motion  138 specific definitions of crimes, support for  30 war crime and crimes against humanity, support for automatic jurisdiction of court  30 China Ad Hoc Committee, delegation to  27 basic issues, view on discussion of  37 connection of crimes against humanity to armed conflict, position on  146 draft resolution for permanent court, opposition to  38 independent prosecutor, position on  165 jurisdiction, position on  163

multilateral treaty, support for  30 non-state parties, views on jurisdiction over  139 permanent court, in favor of  29–30 Rome Diplomatic Conference, dissenting vote  142 final stages, compromise in  130 specific definitions of crimes, support for  30 Civil society  68–75 emergence as collective force  74 Like-Minded Principles  85 Ottawa Process  74–75 Clark, Roger  70, 80, 130, 157 Clinton, President  48, 125 Coalition for the International Criminal Court foundation of  75–76 intellectual leaders  77 members  77, 171 newsletter  171 ownership of creation of court, need for group of states to take  79 Preparatory Committee meetings, access for members to  77–78 press information, preparation and distribution of  78 research materials from  181 secretariat, offices of  171 Steering Committee  171 world at large, informing of negotiations  78 Cohen, William  105, 132 Colombia victims’ right to participation, position on  153 Conso, Giovanni  93, 161 Cook, Robin  79 Copelon, Rhoda  149 Corell, Hans  59, 61–62, 87–88, 116, 140 Crimes definition of  40 Crimes against humanity armed conflict, link to  146 draft convention  59 enforced disappearance  147 existing international standards, incorporating  146 ICC Statute, consolidated text  43–44 definition in  145–147 international humanitarian law, modification of  58

index243 jurisprudence of Rome Statute, relationship with current international law  53 list of  146 non-military violence, as part of  97 persecution committed on discriminatory grounds  147 sources for  44 Criminal courts familiarity with  8 Cuba draft resolution for permanent court, opposition to  38 independent prosecutor, position on  165 Czech Republic war crime and crimes against humanity, support for automatic jurisdiction of court  30 Dakar Conference  82 Denmark consent of interested nations to jurisdiction, support for  31 multilateral treaty, support for  30 permanent court, in favor of  29–30 reference of cases by Security Council, support for  30–31 Rome Diplomatic Conference, no-action motion  139 war crime and crimes against humanity, support for automatic jurisdiction of court  30 Dicker, Richard  69, 75, 79, 82 Dominican Republic pro-death penalty, being  160–161 Donat-Cattin, David  73 Draft Code of Offences against the Peace and Security of Mankind International Law Commission, production by  16 Drug trafficking Draft Statute, whether included in  97, 126 Economic Community of West African States (ECOWAS)  66 Egypt multilateral treaty, support for  30 pro-death penalty, being  160–161 Ethiopia pro-death penalty, being  161 European Union

international relations, influence in  3–4 Preparatory Committee, strong endorsement of  37 Extraordinary Chambers in the Courts of Cambodia establishment of  3 Fernández de Gurmendi, Silvia A.  27, 78, 85, 99 Fife, Rolf Einar  99, 104, 136–139, 160 Figà-Talamanca, Niccolò  71–72 Finland crimes of sexual violence, position on  150 multilateral treaty, support for  30 permanent court, in favor of  29–30 reference of cases by Security Council, support for  30–31 Rome Diplomatic Conference, coordinators at  99 Security Council preventing cases from going to ICC, comment on  31 war crime and crimes against humanity, support for automatic jurisdiction of court  30 Food and Agriculture Organization building  87–88 France Ad Hoc Committee, delegation to  27 civil law, support for  41 delegations  95, 109–112 internal armed conflict, position on inclusion in jurisdiction  148 international criminal court statute, production of  42 jurisdiction, position on  163 Like-Minded Group, not in  104 Preparatory Committee, strong endorsement of  37 reparation, proposal on  157 role of Security Council, position on  166 Rome Diplomatic Conference, delegation  109–112 final stages, compromise in  130 political groupings  103 P5 proposal  134 specific definitions of crimes, support for  30 victims’ rights, proposal  152 victims’ right to participation, position on  153

244

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Gabonese Republic multilateral treaty, support for  30 reference of cases by Security Council, support for  30–31 Security Council preventing cases from going to ICC, comment on  31 war crime and crimes against humanity, support for automatic jurisdiction of court  30 Gallón, Gustavo  183 Gender-related crimes consideration of  12–13 Genocide atrocity crimes, special status among  8 Convention, human rights standards, implementation of  8 international court, provision for  8–9 ICC jurisdiction over  162 ICC Statute, consolidated text  43 definition in  43, 145 international humanitarian law, modification of  58 jurisprudence of Rome Statute, relationship with current international law  53 Rwanda, in  63 Germany delegation  95 independent prosecutor, position on  164 jurisdiction, position on  163 Preparatory Committee, strong endorsement of  37 proposed revisions to ILC text, resolution for  67 Greece specific definitions of crimes, support for  30 Group of  77 government delegations, grouping of  66 Guigou, Elisabeth  110 Hafner, Gerhard  28 Hall, Christopher Keith  68, 75, 166 Helms, Jesse  139 Holy See crimes of sexual violence, position on  150 Rome Diplomatic Conference, delegation at  141

Human rights violations aftermath of  3 grave  8 reactions to  3–4 Hungary multilateral treaty, support for  30 permanent court, in favor of  29–30 India Ad Hoc Committee, delegation to  27 delegation  95 draft resolution for permanent court, opposition to  38 independent prosecutor, position on  165 multilateral treaty, support for  30 permanent international criminal court, objections to  37 Rome Diplomatic Conference, coordinators at  99–100 no-action motion  138, 141 political groupings  103 ICC Statute adoption of  142 all persons, application to  44 Arabic version, correction of  142 Assembly of States Parties  168 Bureau proposal  135–136 civil law influence  42 constitution, as  6 constitutional character  177 controversy over creation of  24 creation, approach of Ad Hoc Committee  19–20 crimes against humanity, consolidated text  43–44 definition  145–147 crimes of sexual violence, incorporation of  148–151 definitions of crimes in  30, 145–148 development, time allocated to  5 draft, articles in  49 changes from  20 issues  27–28 major substantive and administrative issues  25–26 production of  2 translation  50 drafting, table of  191–195 entry into force  169–170 France, document produced by  41–42

index245 genocide, consolidated text  43 definition  145 international humanitarian law, modification of  58 international issues and concepts  58 issues resolved in creation of  1 jurisprudence, relationship with current state of international law  53 legislative activity producing  178 nature of  22–23 negotiations, civil society, role of  68–75 governments and delegations, role of  64–67 legislative nature of  23 literature on  180 main actors  57–86 multilateral diplomacy  177–178 national representatives  65 NGO actors  68–75. See also Non-governmental organisations sources and research methods  179–181 sub-regional groups, influence of  66 UN Secretariat, role of  57–64, 116–117. See also United Nations Secretariat United Nations Diplomatic Conference. See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court United Nations, role of  57 period of production  2–4 preamble  129–130 preparatory commission, work of  170 provisions having effect of law  177 ratifications  173 Review Conference  173–174 signature, open for  170 specific institution, creation of  5 structure and organisation, preparations for  44 U.S. positions, modification of text to reflect  122 victims’ rights, definition of  152–160. See also Victims war crimes, definition  148

International Campaign to Ban Landmines  74–75 International Criminal Court admissibility of cases  135 Africa, operation in  174 agreement as to fundamental nature of  32 atrocity crimes to be tried by  19 budget  174–175 categories of crimes to be tries  126–128 consensus, requirement of  35 Dakar Declaration for Establishment of  205–206 duty to cooperate with  168 establishment, means of  30 financing  98 gender balance and expertise in  151 Hague, invitation to host in  26 impunity, elimination of  8 investigations, initiation of  164–165 Iran, interests of  65 jurisdiction, automatic  162 scope of  30 complementarity, principle of  167 consent of interested nations, whether requiring  31, 54 consent of states to  98, 162–164 countries, over  98 critical and political questions of  135 genocide, over  162 Independent Prosecutor  164–165 negotiating  162 issues of  97–98 official act, principle of  163 partial  128 preconditions  164 scope of  128 Security Council, role of  53–55, 165–167 state not party to Statute, over nationals of  127, 131–136 trigger mechanism  162–164 universal, U.S. objecting to  127 Latin American countries, interests of  65 legitimacy  8 nature of crimes to be covered by  7 negotiations, Ad Hoc Committee. See Ad Hoc Committee

246

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characterization of  1 compromises and changes in attitude  5 emotional and psychological themes  7 gender-related crimes, consideration of  12–13 general Assembly, encouragement by  18 government delegations, education of  18 historic background  15–16 internal politics of  10–11 legislative nature of  23 methods  4–6 period of  2–4 place of  17 processes  4–6 Sixth Committee debates  18, 34–39. See also Sixth Committee special meaning and nature of  6 stages of  2–4 styles and strategies  18–20 techniques  4–6 United Nations, influence of  16–18 victims, place of  11–12 Netherlands, headquarters in  18–19 NGO Principles  207–209 penalties, capital punishment, issue of  137, 160–161 debate on  137, 160–161 imposed by  98 working group  137, 160 permanence of  8, 29 President Clinton, pledge by  48 proposed, nature of  7–10 reduction of independence  54 requirements, recognition of  26 revival of interest in  9 Rome Statute. See ICC Statute Security Council, authorization of consideration of case by  127 bringing or deferring case by  138, 165–166 deferring action, request for  55 jurisdiction, role as to  53–55, 165–167 Permanent Members, accommodation of  130 Permanent Members, role of  66

power to veto investigation or prosecution  166 referral of cases by  30 whether able to prevent cases going to  31 significance and nature of  2 South Africa, interest of  65 states, control by  9 key role of  167–168 Treaty, Preparatory Committee delegates wanting creation through  42 requirement to be set up by  17 true court, to be  23 U.S. service personnel before  172–173 United Nations, relationship with  30 International Criminal Tribunal for Rwanda common law basis  41 establishment of  3 raped women, insensitive conduct of judges to  151 retributive justice before  155 Security Council, creation by  17 sexual crimes, Statute ignoring  12–13 International Criminal Tribunal for the Former Yugoslavia common law basis  41 establishment of  3 retributive justice before  155 Security Council, creation by  17 sexual crimes, Statute ignoring  12–13 International Law Commission crimes against humanity, draft convention  59 Draft Code of Offences against the Peace and Security of Mankind  16 Draft Rome Statute, production of  2 international criminal court, drafting and analysis in relation to  58 international judicial institution, consideration of  16 United Nations Secretariat, support from  57 International Military Tribunal (Nuremberg Tribunal) Charter, recognition by international law  16 creation of  15

index247 International Military Tribunal for the Far East (Tokyo Tribunal) creation of  15 Iran pro-death penalty, being  160 Iraq Rome Diplomatic Conference, dissenting vote  142 Israel Rome Diplomatic Conference, dissenting vote  142 Italy consent of interested nations to jurisdiction, support for  31 delegation  95 group of states to take ownership of creation of court, meeting for  79 invitation for Rome Conference from  25–26 reference of cases by Security Council, support for  30–31 Security Council preventing cases from going to ICC, comment on  31 specific definitions of crimes, support for  30 war crime and crimes against humanity, support for automatic jurisdiction of court  30 Ivan, Constantin Virgil  99 Jamaica pro-death penalty, being  160–161 Janvier, Bernard  110 Japan Ad Hoc Committee, delegation to  27 basic issues, view on discussion of  37 delegation  95 multilateral treaty, support for  30 permanent court, in favor of  29–30 Rome Diplomatic Conference, delegation  130–131 officials at  99 specific definitions of crimes, support for  30 war criminals, trial of  15, 130–134 Jordan Rome Diplomatic Conference, coordinators at  99 Jospin, Lionel  110–111 Juppé, Alain  110 Kaba, Sidiki  69 Kaul, Hans-Peter  85, 91

Kenya draft resolution for permanent court, opposition to  38 Kirsch, Philippe  84–85, 90–91, 96–97, 103, 113–117, 119, 121–126, 130, 135–136, 138, 170, 184 Korea, Republic of automatic jurisdiction, proposal for  163–164 multilateral treaty, support for  30 permanent court, in favor of  29–30 Kourula, Erkki  99, 128 Kuwait pro-death penalty, being  160 Lamptey, George O.  67 Landmines Ottawa Process  74–75 Latin America democracy, transition to  3 Latin American and Caribbean Group  27 Law of the Sea negotiations  2 le Fraper du Hellen, Béatrice  111 Lebanon Rome Diplomatic Conference, objections, proposal and amendments  104 Lee, Roy  59–62, 77, 87–88, 116, 138, 184 Legal, Hubert  110 Lehmann, Tyge  34–35, 38 Lesotho Rome Diplomatic Conference, coordinators at  100 officials at  99 Libya Rome Diplomatic Conference, delegation at  141 dissenting vote  142 objections, proposal and amendments  104 Like-Minded Group civil society, relationship with  43 Cook joining  79 discreet group, as  79 European countries in  104 influence of  66–67 intersessional regional meetings  82–83 leadership  83–84 NGO contributions to  80 origin of  67 partnership with NGOs, common ground  84–86

248

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development of  80 intersessional regional meetings  82–83 leadership  83–84 origin of  79 regional groups and other units, members breaking away from  83 role of NGOs, positive attitude to  115 UN Diplomatic Conference, leadership role at  103 Malawi Rome Diplomatic Conference, no-action motion  138 Manongi, Tuvako  99 Maqungo, Sabelo Sivuyile  85 Matthis, David  80, 84 McKay, Fiona  72 Méndez, Juan  69 Mexico Ad Hoc Committee, delegation to  27 basic issues, view on discussion of  37 delegation  95 draft resolution for permanent court, opposition to  38 permanent court, in favor of  29–30 Mine Ban Treaty adoption of  75 civil society, role of  74 negotiations  2 Mochochoko, Phakiso  99–100 Morocco multilateral treaty, support for  30 permanent court, in favor of  29–30 Muttukumaru, Christopher  160 Nagamine, Yasumasa  99 Netherlands close relationship of ICC with United Nations, agreeing  30 consent of interested nations to jurisdiction, support for  31 multilateral treaty, support for  30 reference of cases by Security Council, support for  30–31 Rome Diplomatic Conference, coordinators at  99 Security Council preventing cases from going to ICC, comment on  31 specific definitions of crimes, support for  30

war crime and crimes against humanity, support for automatic jurisdiction of court  30 New Zealand crimes of sexual violence, position on  150 gender balance and expertise in ICC, position on  151 group of states to take ownership of creation of court, meeting for  79 need for court, endorsement of  37 proposed revisions to ILC text, resolution for  67 reference of cases by Security Council, support for  30–31 Security Council preventing cases from going to ICC, comment on  31 war crime and crimes against humanity, support for automatic jurisdiction of court  30 Non-Aligned Movement African states breaking out of  83 Colombia, meeting in  33 government delegations, grouping of  66 UN Diplomatic Conference, role at  104 Non-governmental organizations Amnesty International  68, 75 Canadian delegation, members of  80–81 Coalition for the International Criminal Court  75–78 daily publications  115–116 European Law Students’ Association  73, 75 government delegations, serving on  80 Human Rights Watch  69, 75, 81 ICC Statute negotiations, role in, Amnesty International  68 European Law Students’ Association  73 Human Rights Watch  69 International Federation for Human Rights  69 No Peace Without Justice  71 REDRESS  72 Victims’ Rights Working Group  72 Women’s Caucus for Gender Justice in the ICC  69–71 International Commission of Jurists  75

index249 International Federation for Human Rights  69 Lawyers Committee for Human Rights  75 legal analysis, provision of  80 Like-Minded Group, partnership with, common ground  84–86 development of  80 intersessional regional meetings  82–83 leadership  83–84 origin of  79 negotiations, key part in  172 No Peace Without Justice  71–72, 82 Preparatory Committee, supporting  81 Principles for an independent, effect and fair International Criminal Court  207–209 REDRESS  72, 156–157 research materials from  181 sixtieth ratification, concentrating on  171 technical advisers  81 UN Diplomatic Conference, delegation to  114–116 Victims’ Rights Working Group  72–73 Women’s Caucus for Gender Justice in the ICC  69–71 working relationships with Court  172 Norway proposed revisions to ILC text, resolution for  67 Rome Diplomatic Conference, coordinators at  99 no-action motion  138 officials at  99 specific definitions of crimes, support for  30 Nuremberg Principles international law, as part of  16 Nye, Joseph  112 O’Flaherty, Michael  72 Oman pro-death penalty, being  160 Oosterveld, Valerie  80 Open Society Initiative  81 Owada, Hisashi  130–133 Pace, William R.   75–77, 79, 81, 114, 183 Pakistan

permanent international criminal court, support for  37 Peacemaking accountability for crimes, and  10 Pejic, Jelena  75, 79, 183 Philippines delegation  94 Poland delegation  94 multilateral treaty, support for  30 permanent court, in favor of  29–30 Preparatory Committee on the Establishment of an International Criminal Court CICC members, access for  77–78 civil and criminal law approaches, competition between  41 December 1996, recommendation to convene in  39 Defense officials, lobbying by  47 delegations committed to  36–38 familiar process, as  36–37 Fifth Session, 1–12 December 1997  45–46 First Session, 25 March–12 April 1996  39–40 Fourth Session, 4–15 August 1997  43–45 funds for  39 general agreement, areas of  40 intersessional meeting, 19–30 January 19998  46 issues, jurisprudence  1 meeting halls  20–22 meetings 1996–1998  39 negotiations, influences  3 nongovernmental organisations, acceptance of  42 political environment of  11 psychological tipping point  44 recommendations and proposals, General Assembly accepting  43 Second Session, 12–30 August 1996  41–43 Sixth Session, 16 March–3 April 1998  47–49 closed meetings  48 progress made by  49 Third Session, 11–21 February 1997  43–45 Treaty, delegates wanting creation of court through  42 United States Department of Defense, hostile briefings by  47

250

index

unresolved issues  44 work programme for  38 Working Group on Penalties  137 working groups  41 Qatar non-state parties, views on jurisdiction over  139 Rome Diplomatic Conference, dissenting vote  142 Rao, S.R.  99–100 Rape outrage on personal dignity, as  148 Richard, Alain  110 Rishmawi, Mona  75 Robinson, Darryl  80, 99 Romania close relationship of ICC with United Nations, agreeing  30 multilateral treaty, support for  30 permanent court, in favor of  29–30 Rome Diplomatic Conference, officials at  99 specific definitions of crimes, support for  30 Rowe, Richard Anthony  91 Russia/Russian Federation Ad Hoc Committee, represented at  27 basic issues, view on discussion of  37 delegation  95 independent prosecutor, position on  165 jurisdiction, position on  163 multilateral treaty, support for  30 permanent court, in favor of  29–30 Rome Diplomatic Conference, P5 proposal  133–134 final stages, compromise in  130 Rwanda pro-death penalty, being  161 Rwelamira, Medard  99 Sadi, Waleed  99 Saeki, Kuniko  27 Saland, Per  99 Samoa delegation  79, 157 Rome Diplomatic Conference, coordinators at  99–100 Sané, Pierre  183 Saudi Arabia pro-death penalty, being  161

Scheffer, David  106–109, 125, 132–133, 135, 138, 185 Sexual violence, crimes of forced pregnancy  149–150 ICC Statute, incorporation in  148–151 list of  150 rape  148 Singapore delegation  54 pro-death penalty, being  160–161 role of Security Council, position on  166 Slade, Tuiloma Neroni  99–100, 130 Slocombe, Walter B.  105 Slovenia delegation  94 Soberón, Francisco  69 South Africa group of states to take ownership of creation of court, meeting for  79 multilateral treaty, support for  30 permanent court, in favor of  29–30 permanent international criminal court, support for  37 Rome Diplomatic Conference, coordinators at  99 South African Development Community, speaking for  95 specific definitions of crimes, support for  30 South Korea delegation  94 Southern African Development Community (SADC)  66, 82–83, 95 members of  82 Principles  203 Regional Conference on the Establishment of an International Criminal Court  82 Rome Diplomatic Conference, South Africa speaking at  95 Spain Preparatory Committee, strong endorsement of  37 Special Court for Sierra Leone establishment of  3 Steans, Cate  150 Sudan close relationship of ICC with United Nations, agreeing  30 multilateral treaty, support for  30 pro-death penalty, being  160 specific definitions of crimes, support for  30

index251 Sweden close relationship of ICC with United Nations, agreeing  30 multilateral treaty, support for  30 permanent court, in favor of  29–30 reference of cases by Security Council, support for  30–31 Rome Diplomatic Conference, coordinators at  99 no-action motion  139 officials at  99 Switzerland specific definitions of crimes, support for  30 Syria gender balance and expertise in ICC, position on  151 pro-death penalty, being  160 Rome Diplomatic Conference, objections, proposal and amendments  104 Tanzania Rome Diplomatic Conference, coordinators at  99 Terrorism Draft Statute, whether included in  97, 126 Thailand draft resolution for permanent court, opposition to  38 multilateral treaty, support for  30 Treaty making process of  23 Trinidad and Tobago permanent court, in favor of  29–30 pro-death penalty, being  160–161 Ukraine multilateral treaty, support for  30 permanent court, in favor of  29–30 specific definitions of crimes, support for  30 United Kingdom Ad Hoc Committee, delegation to  27 European Union, speaking for  95 Like-Minded Group, in  104 multilateral treaty, support for  30 permanent court, in favor of  29–30 Preparatory Committee, strong endorsement of  37 reparation, proposal on  157 role of Security Council, position on  166

Rome Diplomatic Conference, P5 proposal  134 specific definitions of crimes, support for  30 victims’ right to participation, position on  153 United Nations political environment of  10 negotiations for International Criminal Court, influence on  16–18 Authorizations and Resolutions, table of  195–198 conference wing  20–22 General Assembly. See United Nations General Assembly ICC negotiations, interests in  61 impartiality and universality, requirements for  61 institutional interests  61 Office of Legal Affairs  58–59 Office of the Legal Counsel  58–59 UN Charter, implementation of values of  60 International Criminal Court, relationship with  30 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court administration and management  88 adoption of Statute  142 budget  87 Canadian delegation  112–114 chairman  90–91 Committee of the Whole, disagreed language, resolving  100 first meeting  96 last assembly of  136, 186–188 substantive work by  89, 91–92, 96–100 vice-chairpersons  99 communality  51 compromises at  51–55 conclusion  143 coordinators  99 coordinators, work of  96 core issues, determining  50 Credentials Committee  93–94 delegations participating in  27 disagreed issues  50 draft statute, outstanding issues  97–98 Drafting Committee  93–94 assembly of text by  101 text sent to  100

252

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work of  100–101 work, ending  129 duration of  119 final breakthrough  121–136 final days  119–143 final draft, completion of  135 final plenary session  142 final preparations  87–89 final vote  136–143 first stage of negotiations  103–106 FAO building  87–88 French delegation  109–112 General Committee  92 India, amendment proposed by  138 influences  3 instructions, delegations receiving  128–129 interpreters, lack of  96 invitations to  89 issues, jurisprudence  1 jurisdiction of ICC, negotiating  97–98 knowledge of ICC, governments lacking  95 last two weeks, table of  198–201 Like-Minded Group, leadership of  103 main actors, roles and contributions of  51 marathon, as  120 methods of work and procedures, Memorandum  124 negotiation of Statute, strategy got  50 negotiations, rhythm of  120–121 NGOs, role of  114–116 no action, motions of  137–139 Non-Aligned Movement, role of  104 officers, election of  93–94 opening  93 opening plenary meeting  182 opening statements  94–96 organization of work, adoption of  94 challenge of  49 package approach, criticism of  123–124 paper from July 5 meeting, discussion of  125–126 categories of crimes to be tries  126–128 first set of questions  126–128 second set of questions  128–136

Permanent President, election of  92–93 political environment of  11 political groupings  103 procedures  91–94 Rapporteur  99 recess, prospect of  119–120 Rome, invitation to be held in  25–26 rules of procedure  89 selection of dates for  26 selective meeting of delegates  121–122 substantive issues  89 time as factor in  120 U.S. defeat in  139–141 UN lack of funds, effect of  116 unexpected progress, surprise at  51 U.S. delegation, views of  105–109 vice-presidents  93–94 virtual vote technique  128 vote at end of, resort to  124 voting machines  87 voting, rules for  50 working groups  98–100 role in achieving compromise  52–53 structure and interaction of  52 United Nations General Assembly Ad Hoc Committee chairman  18–19 creation of  18 creation of ICC Statutes, approach to  19–20 ephemeral documents generated by  25 First Session, 3–13 April 1995  24–29 agenda  26 division of work  28 government positions, trends in  29–31 interim reports  29 officers, list of  26 officials  27 plenary sessions  28 reports and press releases  29 seventy-five delegations in  27 Working Group  28 initial documents before  24–26 issues on draft statute, discussion of  27–28 major issues, progress on  38

index253 major substantive and administrative issues  25 meeting halls  20–22 meetings  2, 22 need for  67 NGO members  24 Rapporteur  27 Second Session, 14–25 April 1995  31–34 report to General Assembly  32–33 Sixth Committee, report to  35–36 UN Office of Legal Affairs, role of  33 unexpected progress  19 committees  92 ICC negotiations, authorization of  16 beginning  2, 4 encouragement of  18 need for ICC, agreement on  9 Nuremburg Principles, codification of  16 plenary body of Conference, as  92 Sixth Committee Ad Hoc Committee report, presentation of  35–36 chairman  34 consensus on ICC, requirement of  35 Court, participants having little understanding or information as to  36 debates  18 delegates in  34 draft resolution, adoption of  38 International Law Commission report, review of  67 Preparatory Committee, attitude towards  36–38 Preparatory Committee report, commitment to  36 UN Office of Legal Affairs, role of  33 United Nations Secretariat International Law Commission, support for  57 key actors  59–62 Rome Statute negotiations, role in  57–64, 116–117 United States Ad Hoc Committee, delegation to  27

American Servicemembers’ Protection Act  172–173 basic issues, view on discussion of  37 close relationship of ICC with United Nations, agreeing  30 consent of interested nations to jurisdiction, support for  54 crimes of sexual violence, position on  150 defeat at Rome Conference, implications of  140–141 delegation  95 exclusion from private meetings, suspicion of  113 hostile briefings by  47–48 ICC Review Conference, delegation at  141 independent prosecutor, position on  165 internal armed conflict, position on inclusion in jurisdiction  148 international criminal responsibility, not accepting idea of  105 jurisdiction, position on  163–164 Like-Minded positions, favoring  122 move from opposition to cooperation  172–173 multilateral treaty, support for  30 National Security Council  108, 125 Deputies Committee  108 penalties, position on  161 permanent court, accepting need for  37–38 role of Security Council, position on  166 Rome Diplomatic Conference, coordinators at  100 final stages, compromise in  130 officials at  99 political groupings  103 Statute as a whole, vote on  142 Somalia and former Yugoslavia, experiences in  4 trial of Americans in ICC, view as to  105–107, 138–141 UN Diplomatic Conference, delegation to  105–109 universal jurisdiction, objecting to  127 victims’ rights, position on  153, 158 United States Department of Defense hostile briefings by  47

254

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Uruguay close relationship of ICC with United Nations, agreeing  30 Van Boven Principles  157–158 Védrine, Hubert  110–111 Venezuela Preparatory Committee, strong endorsement of  37 Versailles Treaty prosecution of war crimes, envisaging  15 Victims access to ICC  170 debates, representatives participating in  153 international crime, of  11–12 new legal status of  159 redress to  12 REDRESS, expert consultative meeting organized by  156 rights, ICC Statute, definition in  152 participation, to  152–154 rehabilitation, compensation for purposes of  158 reparation, to  154–160 restitution and compensation, to  155 Trust Fund for  159 von Hebel, Herman  99

War crimes conscripting or enlisting children under fifteen  148 ICC Statute, definition in  148 jurisprudence of Rome Statute, relationship with current international law  53 nuclear, chemical and biological weapons, use of  138 opt-out declaration for states parties  163–164, 173–174 Warlow, Molly  99–100 Western European and Others Group  27 Williams, Jody  75 Women’s Caucus  149–151 Women’s rights conferences  2 Women’s Caucus for Gender Justice in the ICC  69–71 world conferences  70 Yee Woon Chin, Lionel  54–55 Yemen Rome Diplomatic Conference, dissenting vote  142 Zeid, Ra’ad Zeid Al Hussein  116