Negotiating the Treaty of Romeon the Establishment of an International Criminal Court

Cornell International Law Journal

Volumn 32, Issue 3, 1998, Pages 443-468

  Bassiouni, M Cherif ^a,b,c,d  

^a DEPAUL UNIVERSITY   (United States)

^b International Association of Penal Law   (France)

^c Intl Inst Higher Studs Crim Sci

^d Preparatory Comm Estab Intl C ^*

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0346308891     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (135)

1. See United Nations General Assembly Resolution on the Establishment of an International Criminal Court, G.A. Res. 51/207, U.N. Doc. A/51/627 (1996) [hereinafter G.A. Res. 51/207], reprinted in THE INTERNATIONAL CRIMINAL COURT: OBSERVATIONS AND ISSUES BEFORE THE 1997-98 PREPARATORY COMMITTEE; AND ADMINISTRATIVE AND FINANCIAL IMPLICATIONS 1, 13 Novelles Études Pénales (M. Cherif Bassiouni ed., 1997) [hereinafter 13 NEP]. The resolution recalls the General Assembly's decision to establish a preparatory committee "to discuss further the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission, and taking in account the different views expressed during the meetings, to draft texts, with a view to preparing a widely acceptable consolidated text. . . ." Id. at 1 (emphasis added).
2. See United Nations General Assembly Resolution on the Establishment of an International Criminal Court, G.A. Res. 51/207, U.N. Doc. A/51/627 (1996) [hereinafter G.A. Res. 51/207], reprinted in THE INTERNATIONAL CRIMINAL COURT: OBSERVATIONS AND ISSUES BEFORE THE 1997-98 PREPARATORY COMMITTEE; AND ADMINISTRATIVE AND FINANCIAL IMPLICATIONS 1, 13 Novelles Études Pénales (M. Cherif Bassiouni ed., 1997) [hereinafter 13 NEP]. The resolution recalls the General Assembly's decision to establish a preparatory committee "to discuss further the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission, and taking in account the different views expressed during the meetings, to draft texts, with a view to preparing a widely acceptable consolidated text. . . ." Id. at 1 (emphasis added).
3. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter Rome Statute]. Both committees worked at the United Nations headquarters in New York. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), reprinted in THE STATUTE OF THE INTERNATIONAL COURT: A DOCUMENTARY HISTORY (M. Cherif Bassiouni ed., 1999) [hereinafter THE STATUTE OF THE INTERNATIONAL COURT]; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, G.A., 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra. This compilation also contains the April 1998 draft statute prepared by the PrepCom, the final text of the Statute, and a historical background. For a commentary on the work of the PrepCom, see 13 NEP, supra note 1; OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE, 13bis NOUVELLES ÉTUDES PÉNALES (Leila Sadat Wexler, special ed., M. Cherif Bassiouni, general ed., 1998) [hereinafter 13bis NEP].
4. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter Rome Statute]. Both committees worked at the United Nations headquarters in New York. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), reprinted in THE STATUTE OF THE INTERNATIONAL COURT: A DOCUMENTARY HISTORY (M. Cherif Bassiouni ed., 1999) [hereinafter THE STATUTE OF THE INTERNATIONAL COURT]; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, G.A., 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra. This compilation also contains the April 1998 draft statute prepared by the PrepCom, the final text of the Statute, and a historical background. For a commentary on the work of the PrepCom, see 13 NEP, supra note 1; OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE, 13bis NOUVELLES ÉTUDES PÉNALES (Leila Sadat Wexler, special ed., M. Cherif Bassiouni, general ed., 1998) [hereinafter 13bis NEP].
5. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter Rome Statute]. Both committees worked at the United Nations headquarters in New York. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), reprinted in THE STATUTE OF THE INTERNATIONAL COURT: A DOCUMENTARY HISTORY (M. Cherif Bassiouni ed., 1999) [hereinafter THE STATUTE OF THE INTERNATIONAL COURT]; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, G.A., 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra. This compilation also contains the April 1998 draft statute prepared by the PrepCom, the final text of the Statute, and a historical background. For a commentary on the work of the PrepCom, see 13 NEP, supra note 1; OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE, 13bis NOUVELLES ÉTUDES PÉNALES (Leila Sadat Wexler, special ed., M. Cherif Bassiouni, general ed., 1998) [hereinafter 13bis NEP].
6. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter Rome Statute]. Both committees worked at the United Nations headquarters in New York. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), reprinted in THE STATUTE OF THE INTERNATIONAL COURT: A DOCUMENTARY HISTORY (M. Cherif Bassiouni ed., 1999) [hereinafter THE STATUTE OF THE INTERNATIONAL COURT]; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, G.A., 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra. This compilation also contains the April 1998 draft statute prepared by the PrepCom, the final text of the Statute, and a historical background. For a commentary on the work of the PrepCom, see 13 NEP, supra note 1; OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE, 13bis NOUVELLES ÉTUDES PÉNALES (Leila Sadat Wexler, special ed., M. Cherif Bassiouni, general ed., 1998) [hereinafter 13bis NEP].
7. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter Rome Statute]. Both committees worked at the United Nations headquarters in New York. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), reprinted in THE STATUTE OF THE INTERNATIONAL COURT: A DOCUMENTARY HISTORY (M. Cherif Bassiouni ed., 1999) [hereinafter THE STATUTE OF THE INTERNATIONAL COURT]; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, G.A., 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra. This compilation also contains the April 1998 draft statute prepared by the PrepCom, the final text of the Statute, and a historical background. For a commentary on the work of the PrepCom, see 13 NEP, supra note 1; OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE, 13bis NOUVELLES ÉTUDES PÉNALES (Leila Sadat Wexler, special ed., M. Cherif Bassiouni, general ed., 1998) [hereinafter 13bis NEP].
8. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter Rome Statute]. Both committees worked at the United Nations headquarters in New York. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), reprinted in THE STATUTE OF THE INTERNATIONAL COURT: A DOCUMENTARY HISTORY (M. Cherif Bassiouni ed., 1999) [hereinafter THE STATUTE OF THE INTERNATIONAL COURT]; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, G.A., 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra. This compilation also contains the April 1998 draft statute prepared by the PrepCom, the final text of the Statute, and a historical background. For a commentary on the work of the PrepCom, see 13 NEP, supra note 1; OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE, 13bis NOUVELLES ÉTUDES PÉNALES (Leila Sadat Wexler, special ed., M. Cherif Bassiouni, general ed., 1998) [hereinafter 13bis NEP].
9. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter Rome Statute]. Both committees worked at the United Nations headquarters in New York. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), reprinted in THE STATUTE OF THE INTERNATIONAL COURT: A DOCUMENTARY HISTORY (M. Cherif Bassiouni ed., 1999) [hereinafter THE STATUTE OF THE INTERNATIONAL COURT]; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, G.A., 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra. This compilation also contains the April 1998 draft statute prepared by the PrepCom, the final text of the Statute, and a historical background. For a commentary on the work of the PrepCom, see 13 NEP, supra note 1; OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE, 13bis NOUVELLES ÉTUDES PÉNALES (Leila Sadat Wexler, special ed., M. Cherif Bassiouni, general ed., 1998) [hereinafter 13bis NEP].
10. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 39 I.L.M. 999 (1998) [hereinafter Rome Statute]. Both committees worked at the United Nations headquarters in New York. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), reprinted in THE STATUTE OF THE INTERNATIONAL COURT: A DOCUMENTARY HISTORY (M. Cherif Bassiouni ed., 1999) [hereinafter THE STATUTE OF THE INTERNATIONAL COURT]; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vols. I & II, G.A., 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra. This compilation also contains the April 1998 draft statute prepared by the PrepCom, the final text of the Statute, and a historical background. For a commentary on the work of the PrepCom, see 13 NEP, supra note 1; OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE, 13bis NOUVELLES ÉTUDES PÉNALES (Leila Sadat Wexler, special ed., M. Cherif Bassiouni, general ed., 1998) [hereinafter 13bis NEP].
11. See supra note 1, at 1.
12. G.A. Res. 50/46, U.N. GAOR, U.N. Doc. A/RES/50/46 (1995).
13. See M. Cherif Bassiouni, Observations Concerning the 1997-98 Preparatory Committee's Work, in 13 NEP, supra note 2, at 5-36.
14. The PrepCom's mandate from the General Assembly ended on April 3, 1998. See supra note 4.
15. Many delegates jokingly referred to this compilation of proposals as the "telephone book."
16. The Bureau consisted of the Chairman, Vice-Chairperson, and the Rapporteur.
17. The Chairman appointed a number of delegates to be "coordinators" or informal chairs of working groups which met formally and informally to draft text for the different parts of the Statute, e.g., Procedure, Jurisdictional Mechanisms, Crimes, Criminal Responsibility, Cooperation and Enforcement, etc. In the end, the Statute adopted in Rome contained 12 Parts.
18. The official languages are Arabic, Chinese, French, English, Russian, and Spanish.
19. In Rome, many justice ministries' representatives complained that their foreign affairs ministries had not communicated with them on the ICC until the last minute, so that they did not have sufficient time to prepare for the Conference. Also, many Member States only involved their foreign affairs ministries and did not include justice or defense ministries.
20. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act, U.N. Doc. A/Conf.183/2/Add.1 (1998), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra note 2, at 119-210.
21. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act, U.N. Doc. A/Conf.183/2/Add.1 (1998), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra note 2, at 119-210.
22. One hundred twenty states voted in support of the Conference's Final Act. See UN Diplomatic Conference Concludes in Rome with Decision to Establish Permanent International Criminal Court, U.N. Press Release L/ROM/22 (17 July 1998). As of October 20, 1999, 89 states had signed the Rome Treaty and four have ratified it: Albania, Andorra, Angola, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Benin, Bolivia, Burkina Faso, Burundi, Bulgaria, Cameroon, Canada, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, the Czech Republic, Denmark, Djibouti, Ecuador, Eritrea, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Haiti, Honduras, Hungary, Iceland, Ireland, Italy (ratified), Jordan, Kenya, Kyrgyzstan, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malta, Mauritius, Monaco, Namibia, the Netherlands, New Zealand, Niger, Norway, Panama, Paraguay, Poland, Portugal, Romania, Samoa, San Marino (ratified), Saint Lucia, Senegal (ratified), Sierra Leone, Slovakia, Slovenia, the Solomon Islands, South Africa, Spain, Sweden, Switzerland, Tajikistan, Trinidad and Tobago (ratified), Uganda, the former Yugoslav Republic of Macedonia, the United Kingdom, Venezuela, Zambia, and Zimbabwe. See Rome Statute of the International Criminal Court, Ratification Status (last modified Oct. 20, 1999) 〈http:// www.un.org/law/icc/statute/status.htm〉.
23. One hundred twenty states voted in support of the Conference's Final Act. See UN Diplomatic Conference Concludes in Rome with Decision to Establish Permanent International Criminal Court, U.N. Press Release L/ROM/22 (17 July 1998). As of October 20, 1999, 89 states had signed the Rome Treaty and four have ratified it: Albania, Andorra, Angola, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Benin, Bolivia, Burkina Faso, Burundi, Bulgaria, Cameroon, Canada, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, the Czech Republic, Denmark, Djibouti, Ecuador, Eritrea, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Haiti, Honduras, Hungary, Iceland, Ireland, Italy (ratified), Jordan, Kenya, Kyrgyzstan, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malta, Mauritius, Monaco, Namibia, the Netherlands, New Zealand, Niger, Norway, Panama, Paraguay, Poland, Portugal, Romania, Samoa, San Marino (ratified), Saint Lucia, Senegal (ratified), Sierra Leone, Slovakia, Slovenia, the Solomon Islands, South Africa, Spain, Sweden, Switzerland, Tajikistan, Trinidad and Tobago (ratified), Uganda, the former Yugoslav Republic of Macedonia, the United Kingdom, Venezuela, Zambia, and Zimbabwe. See Rome Statute of the International Criminal Court, Ratification Status (last modified Oct. 20, 1999) 〈http:// www.un.org/law/icc/statute/status.htm〉.
24. While it may appear that five weeks is a long time, officially there were only 24 working days of six hours a day. Within that period the delegates had to discuss and draft 116 articles, which entailed compromising on the definitions of crimes, on the scope of the ICC's jurisdiction and triggering mechanisms, on the role of the Security Council and the Prosecutor, and on other unresolved political issues. The participation of 161 delegations with an estimated 2000 delegates (out of the 5000 registered ones) compounded the difficulty of achieving consensus in such a limited period of time.
25. The Bureau members were Adriaan Bos, Chairman; M. Cherif Bassiouni, Sylvia Fernandez de Gurmendi, and Marek Madej, who resigned and was replaced by Peter Tomka, Vice-Chairpersons; and Juan Yoshida, Rapporteur, who resigned and was replaced by Masataka Okano. See THE STATUTE OF THE INTERNATIONAL COURT, supra note 2, at 115.
26. See G.A. Res. 51/207, supra note 1.
27. See M. Cherif Bassiouni, International Institute of Higher Studies in Criminal Sciences, in THE CONTRIBUTIONS OF SPECIALIZED INSTITUTES AND NON-GOVERNMENTAL ORGANI ZATIONS TO THE UNITED NATIONS CRIMINAL JUSTICE PROGRAM: IN HONOR OF ADOLFO BERIA DI ARGENTINE 209 (M. Cherif Bassiouni ed., 1995) [hereinafter CONTRIBUTIONS OF SPECIALIZED INSTITUTES]. The ISISC had already hosted several informal meetings of the PrepCom's working groups in Siracusa.
28. See THE STATUTE OF THE INTERNATIONAL COURT, supra note 2, at 24.
29. See Ernesto Ugo Savona, International Scientific and Advisory Professional Council, in CONTRIBUTIONS OF SPECIALIZED INSTITUTES, supra note 17, at 249.
30. The Conference chair nominees were Professor Giovanni Conso of Italy, Ambassador Adriaan Bos of the Netherlands, and Professor M. Cherif Bassiouni of Egypt. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Rules of Procedure, U.N. Doc. A/Conf.183/2/Add.2 (1998), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra note 2, at 211-19.
31. The Conference chair nominees were Professor Giovanni Conso of Italy, Ambassador Adriaan Bos of the Netherlands, and Professor M. Cherif Bassiouni of Egypt. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Rules of Procedure, U.N. Doc. A/Conf.183/2/Add.2 (1998), reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra note 2, at 211-19.
32. Mr. Roy Lee, Director, Codification Division, Office of Legal Affairs.
33. The duties of these bodies are set forth in the PrepCom's Draft Organization of Work, U.N. Doc. A/AC.249/1998/CRP.21 (1998), which provides as follows: 1. As mandated by the General Assembly in its resolution 52/160, of 15 December 1997, the task of the Conference is to finalize and adopt a convention on the establishment of an international criminal court. The Conference should move promptly to the consideration of substantive matters after a short session on organizational matters.
34. After the opening of the Conference by the Secretary-General of the United Nations, the Conference will meet to elect the President, adopt the agenda and the rules of procedure and elect other officers.
35. The General Committee will meet immediately following the election of its members. Its work will include, inter alia, assisting the President in the general conduct of business and making recommendations with respect to the election of members of the Drafting Committee.
36. The plenary, on the recommendations of the General Committee will then elect the members of the Drafting Committee and adopt the programme of work of the Conference.
37. The plenary will then proceed to hear statements from States in accordance with an established list of speakers prepared on a first-come-first-served basis. The Conference will also hear statements from a limited number of intergovernmental organizations and non-governmental organizations. The list of speakers will be opened for inscription on 15 April 1998.
38. With a view to the efficient and expeditious discharge of the work of the plenary, a time limit may be established for statements by States on the one hand (e.g., 10 minutes) and intergovernmental organizations and non-governmental organizations on the other. In principle, States should be given more time than intergovernmental organizations and non-governmental organizations. A total of eight meetings may be allotted for this purpose.
39. The Committee of the Whole should concentrate on the substantive work and should begin its work on 16 June. It may hold up to four meetings (with hill interpretation) per day throughout the Conference, i.e., two bodies may meet concurrently, both morning and afternoon. The Committee of the Whole will report to the plenary upon the completion of its work.
40. A working group of the Committee of the Whole will begin its work on the afternoon of 17 June.
41. The Drafting Committee may begin its work on 19 June; two meetings (with full interpretation) per day may be allotted to it throughout the Conference. The Drafting Committee will receive its work from the Committee of the Whole and report to it. Time constraints might make it necessary to allow the Drafting Committee to report on the last portion of its work directly to the plenary.
42. The Credentials Committee will meet sometime during the second or third week of the Conference. One meeting has been allotted for that purpose.
43. The last day of the Conference is reserved for the signature of the Final Act and of the Statute of the Court and for the closure of the Conference.
44. To maximize limited time, delegation heads were each given five to seven minutes for their opening remarks; IGOs (and some NGOs) were given three to five minutes.
45. Giovanni Conso of Italy and M. Cherif Bassiouni of Egypt. See supra note 19.
46. See Fanny Benedetti & John L. Washburn, Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterward on the Rome Diplomatic Conference, 5 GLOBAL GOVERNANCE 1, 16 (Jan.-Mar. 1999) (noting that the remaining delegates consisted of career U.N. diplomats, senior civil servants, public and private experts, and politicians).
47. The Arab States formed one of the most active informal groups; they met frequently and adopted common positions that were not necessarily supportive of the ICC, although some states (such as Egypt and Jordan) were part of the "like-minded states." The "like-minded states" met most frequently and were the driving force for completing the Draft Statute and for establishing the ICC.
48. See infra notes 45-48, 61-64 and accompanying text.
49. Delegations with 10 or more members could adequately cover all of the proceedings, but smaller delegations could not. The pressure on the Secretariat, however, was even more intense. For example, as more informal meetings were held over the course of the Conference, the understaffed Secretariat became desperate for assistance and began using its law student interns to staff the informal discussions.
50. Personnel constraints, logistics, and costs prohibited simultaneous interpretation into the six official languages. This placed delegates from non-English-speaking countries at a disadvantage and barred those delegations with limited English language ability from effective participation.
51. For example, participants were often confused as to the location and time of their meetings since the monitor placed in the main lobby of the building did not reflect updates or changes in meeting times and places. Also, a general shortage of computers available to conference delegates encumbered the distribution of proposals. Moreover, the Secretariat quickly became overwhelmed with the volume of documents that required translation and distribution among the delegates. Many other difficulties were compounded by the inadequate facilities for communicating to individuals outside of the conference. The hundreds of conference attendees waited in long lines for the six phones and two fax machines available for general use.
52. The Malaysia Room, named for the Government that had donated its furnishings, was in Building C on the second floor. It was far removed from the first floor rooms of the Committee of the Whole and the NGO quarters (the Sudan Room), which were in Building A. Thus, most delegates and NGOs did not even know where the Drafting Committee met, let alone what it accomplished. This gave the Drafting Committee an aura of mystery and remoteness, but it also meant that its efforts were not as appreciated as they should have been. Nevertheless, this anonymity allowed the Drafting Committee to work effectively and in complete confidentiality, particularly since the media was oblivious to its existence and thus to its work. Even the daily NGO bulletin, Terra Viva, referred to the Drafting Committee only once in five weeks.
53. Finding U.N. staff offices was another difficult endeavor. Further, air conditioning existed in only a few of the rooms, with the balance of the building and the corridors subject to one of Rome's hottest and more humid summers.
54. Twenty-five elected delegations formed the Drafting Committee: Cameroon, China, the Dominican Republic, Egypt, France, Germany, Ghana, India, Jamaica, Lebanon, Mexico, Morocco, the Philippines, Poland, the Republic of Korea, the Russian Federation, Slovenia, South Africa, Spain, Sudan, Switzerland, the Syrian Arab Republic, the United Kingdom, the United States, and Venezuela. The members of these delegations were not always the same throughout the five weeks. Since there was no official roster of delegates representing these delegations, the following names are those that the author recorded, though other delegates also occasionally participated. Thus, the following list is incomplete: Cameroon: Maurice Kamto, Victor Tchatchouwo; China: Xu Hong; the Dominican Republic: Christina Aguiar; Egypt: M. Cherif Bassiouni; France: François Alabrune, Pierre-André Lageze; Germany: Hans-Joerg Behrens; Ghana: Immanuel Akwei Addo; India: S. Rama Rao; the Republic of Korea: Sung-Kyu Lee; Lebanon: Hicham Hamdan; Jamaica: Wayne McCook, Cheryl Thompson-Barrow; Mexico: Socorro Rovirosa, Jorge Palacios Treviño, Luis Fernández Doblado; Morocco: Amal Belcaid, Fakhr Eddine Essaaidi; the Philippines: Antonio Morales, Jose Tomas Syquia; Poland: Maria D. Frankowska, Kirill G. Gevorgyan; the Russian Federation: Alexei Dronov; Slovenia: Mirjam Skrk; South Africa: Sabelo Sivuyile Maqungo; Spain: Juan Antonio Yañez-Barnuevo, Julio Montesino Ramos; Sudan: Awad El-Hassan El-Noor, Abdalla Ahmed Mahdi; Switzerland: Lucius Caflisch, Jürg Lindenmann; the Syrian Arab Republic: Mohammad Said Al-Bounni; the United Kingdom: Susan Dickson, Franklin Berman; the United States: Clifton Johnson, Michele Klein Solomon, Jamison S. Borek; and Venezuela: Victor Rodriguez Cedeno, Milagros C. Betancourt, Norman L. Monagas.
55. The working groups submitted draft provisions directly to the Committee of the Whole for its pro forma approval. After the Committee of the Whole considered each new provision, it labeled the additions "rolling text" and placed them aside pending receipt of the remainder of articles in which they belonged. Once the Committee had received a given article in full, the Secretariat would prepare a separate document and assign it a conference symbol number; the text would then be translated and distributed to the Drafting Committee for review. Once the Drafting Committee had the opportunity to discuss the portions of each article, it labeled the article "text adopted on first reading." The Drafting Committee would then await the remaining parts of the Draft Statute to determine whether the language for an individual article was consistent with the rest of the parts. Once that was accomplished, the Drafting Committee would label the article "text adopted on second reading." The Drafting Committee reported to the Committee of the Whole when it completed an entire part of the Draft Statute.
56. The Committee of the Whole began transmitting articles to the Drafting Committee on June 19, 1998, and continued to transmit articles until July 15, 1998. During this four week period, the Drafting Committee received 35 articles in two to nine different parts. The specifics are as follows: Article 3 (in 3 parts); Article 4 (in 3 parts); Article 24 (in 2 parts); Article 29 (in 3 parts); Article 31 (in 9 parts); Article 35 (in 4 parts); Article 37 (in 9 parts); Article 39 (in 4 parts); Article 40 (in 3 parts); Article 43 (in 9 parts); Article 45 (in 4 parts); Article 49 (in 6 parts); Article 52 (in 3 parts); Article 54 (in 9 parts); Article 58 (in 6 parts); Article 61 (in 9 parts); Article 67 (in 2 parts); Article 68 (in 7 parts); Article 69 (in 8 parts); Article 71 (in 2 parts); Article 72 (in 2 parts); Article 74 (in 3 parts); Article 75 (in 2 parts); Article 77 (in 3 parts); Article 80 (in 5 parts); Article 81 (in 3 parts); Article 82 (in 5 parts); Article 83 (in 4 parts); Article 86 (in 7 parts); Article 87 (in 3 parts); Article 90 (in 9 parts); Article 91 (in 5 parts); Article 94 (in 2 parts); Article 99 (in 3 parts); and Article 102 (in 2 parts).
57. Cross-referencing was almost an impossible task as article numbers changed daily with the addition of new paragraphs.
58. Rule 49 of the Conference, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Rules of Procedure, supra note 19, provided that the Drafting Committee would not deal with substantive issues. However, the rule was relaxed during the third and fourth weeks when the working groups, eager to move on at a faster pace, became more reliant on the Drafting Committee to undertake more substantive drafting. However, this meant that the Drafting Committee needed more time to consult with the working groups' coordinators to clarify the intent of the draft articles on which they were working. To assist the Drafting Committee, the Committee of the Whole referred various articles with notes representing its understanding of the transmitted articles. The notes also alerted the Drafting Committee to particular textual issues, such as term selection or identified terms that should not be changed.
59. Even though drafting is a rigorous process that requires much concentration, the Drafting Committee frequently worked 10 to 14 hours a day. The U.N. Secretariat worked almost around the clock for the last three days of the Conference.
60. This approach brought together delegates whose national positions were diverse and helped focus their attention on the text, while diminishing the psychological implications of adhering only to nationalistic positions.
61. We usually started by clarifying the meaning of a certain concept or term in English and then determining its equivalent or counterpart in the major legal systems represented within the Committee. At times, we were unable to reconcile different legal concepts because they were worded in carefully chosen diplomatic terms. Nevertheless, whenever we encountered a troublesome provision, we alerted the relevant working-group coordinator and tried to clarify the ambiguities. On several occasions we success fully reconciled conflicts, but where the working group had selected the terms deliberately (i.e., as a result of lengthy negotiations), we could not alter the provision.
62. Because of the volume of the texts and time constraints, the translations contained some errors. The United Nations released a set of corrections on November 10, 1998, and on July 12, 1999.
63. The no-objection procedure, which requires unanimity, is based on Article 79 of the 1969 Vienna Convention on the Law of Treaties. Several multi-lateral conventions have resorted to no-objection procedures, which are essentially designed to correct non-substantive errors such as typographic punctuation and cross-referencing errors. The U.N. Secretariat communicates suggested corrections to the Member States; if the States make no objections, then the corrections are deemed accepted.
64. The Secretariat released a set of corrections based on the no-objection procedure in October 1998. See U.N. Doc. C.N./577.1998 Treaties-8 (1998).
65. Part 2, which contains Articles 5-21, addresses the ICCs jurisdictional authority and the applicable law to be applied in defining the elements of crimes. See also infra notes 45-48 and accompanying text.
66. The Chairman of the Committee of the Whole presented several of the Final Clauses to that Committee on behalf of the Bureau on the last day of the Conference. See infra notes 61-62 and accompanying text; see also Philippe Kirsch & John T. Holmes, The Rome Diplomatic Conference on an International Criminal Court: The Negotiating Process, 93 AM. J. INT'L L. 2 (1999). Surprisingly, an article by Mahnoush H. Arsanjani, the Secretary of the Committee of the Whole, makes no reference to the Drafting Committee. See Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 AM. J. INT'L L. 22 (1999).
67. The Chairman of the Committee of the Whole presented several of the Final Clauses to that Committee on behalf of the Bureau on the last day of the Conference. See infra notes 61-62 and accompanying text; see also Philippe Kirsch & John T. Holmes, The Rome Diplomatic Conference on an International Criminal Court: The Negotiating Process, 93 AM. J. INT'L L. 2 (1999). Surprisingly, an article by Mahnoush H. Arsanjani, the Secretary of the Committee of the Whole, makes no reference to the Drafting Committee. See Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 AM. J. INT'L L. 22 (1999).
68. See supra note 19. Several delegations questioned the procedural validity of submitting a text on a take it or leave it basis when only some delegations had participated in its preparation.
69. Article 12(3) provides: If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. Rome Statute, supra note 2, art. 12(3) (emphasis added).
70. Article 13 (emphasis added): The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. Id. art. 5 (emphasis added).
71. While Articles 20 and 21 were included in Part 2 as a result of political considerations, the location of Article 66 in Part 6 reflects an insufficient appreciation of traditional legal methods of criminal law.
72. See supra notes 1-7 and accompanying text.
73. See supra notes 8-12 and accompanying text.
74. The "like-minded states" at the Conference included: Australia, Austria, Argentina, Belgium, Canada, Chile, Croatia, Denmark, Egypt, Finland, Germany, Greece, Guatemala, Hungary, Ireland, Italy, Lesotho, the Netherlands, New Zealand, Norway, Portugal, Samoa, Slovakia, South Africa, Sweden, Switzerland, Trinidad and Tobago (representing 12 Caricom states), Uruguay, and Venezuela. See THE STATUTE OF THE INTERNATIONAL COURT, supra note 2, at 25. This group of states has continued to grow since 1998.
75. These organizations included the American Bar Association, Amnesty International, the Association International de Droit Pénal, the Carter Center, the European Law Students Association, Human Rights Watch, the International Commission of Jurists, the International Human Rights Law Institute, the International Institute for the Higher Studies in Criminal Sciences, the Lawyers Committee of Human Rights, No Peace Without Justice, Parliamentarians for Global Action, the Women's Caucus, the World Federalist Association, and the Washington Working Group on an International Criminal Court.
76. See supra notes 32-48 and accompanying text.
77. Furthermore, "certain delegations were in special or unique circumstances . . . . Italy was to be the host of the Rome conference; the Netherlands was the undisputed candidate to be the host country for the International Criminal Court." See Benedetti & Washburn, supra note 24, at 17.
78. See supra notes 45-48 and accompanying text.
79. See supra notes 34-35 and accompanying text.
80. The author was able to see the unfolding picture and keep the Drafting Committee updated by entering changes in an electronic version of the Draft Statute. Since the Drafting Committee was dealing with several hundreds of pages of different documents, this tracking system was accompanied by a parallel chart of the document symbols for each provision or paragraph. Without this approach, the Drafting Committee would have drowned in paper.
81. On July 8, "Kirsch opened the Committee of the Whole for a point-by-point discussion of the . . . paper . . . . [H]e requested at the opening of the session that states answer a set of precise questions," rather than make general comments. The format "limited the scope of and length of the answers and forced delegations to be specific," which, in turn allowed Kirsch to take a "virtual vote." See Benedetti & Washburn, supra note 24, at 31.
82. However, the U.S. position was not always clear, probably because of the uncertainty with which the U.S. Administration approached the entire endeavor. This situation made productive negotiations more difficult than expected. For an insightful description of the Administration's ambivalent stance, see Ruth Wedgwood, Fiddling in Rome: America and the International Criminal Court, 6 FOREIGN AFF. 20 (1998).
83. Several other delegations had problems with the proposed compromise package, and in that respect the United States was not alone. For example, India also rejected the compromise package, albeit for different reasons that the United States (e.g., India wanted to prohibit the use of nuclear weapons, while the United States fought hard against most states to keep nuclear weapons permissible). However, the importance of securing U.S. support guaranteed that its positions would command great attention.
84. As some veteran negotiators later said, if the Conference had another week, these issues would still have been debated on the last week and not before.
85. See supra note 45.
86. For reasons stated above, Part 2 (Articles 5 to 21) was not referred to the Drafting Committee like other parts of the Draft Statute.
87. India, for example, wanted to limit the role of the Security Council (a change most delegations opposed), and include nuclear weapons among prohibited weapons (a change most developing countries supported). The United States primarily wanted jurisdiction to be subject to the consent of the state of nationality of the prospective defendant but that was opposed by most states. India and the United States also wanted to limit the scope of Article 12 affecting non-State Parties. See supra note 46 and accompanying text.
88. See Draft Statute for the International Criminal Court, U.N. Doc. A/Conf.183/C.I/ L.76; A/Conf.183/C.I/L.76/Add.1-Add.14 (1998).
89. Some observers interpreted the elation of the delegates as anti-American, but that is exaggerated. The delegates were genuinely happy to have completed this historic task which, coupled with the release of tensions after a long and arduous process, produced a sense of euphoria. To be sure, there was also a sense of "enough is enough" with what was perceived as U.S. evasiveness or intransigence. But on the whole the atmosphere was celebratory, not anti-American. After all, the United States had won many significant concessions during the negotiations. The concessions the United States failed to achieve would have severely hampered the ICC's ultimate purpose; moreover, these requests were perceived as motivated by domestic U.S. politics and thus garnered little sympathy from the other delegations. The United States, however, had valid concerns such as the problem with Article 12(3), see supra note 46. It also had a valid concern with another non-State Party issue contained in Article 121, which gave acceding Parties the right to not accept the Court's jurisdiction for additional crimes adopted by the Assembly of State Parties. See Article 121(5) ("Any amendment to article 5 of this Statute shall enter into force for those State Parties which have accepted the amendment one year after the deposit of their instruments or ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory."). Lastly, the United States had valid concerns with the absence of a road-map and legal standards for complementarity and for the Prosecutor's proprio motu actions. See Article 15(1) (explaining that the Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court). These concerns could have been addressed in Rome with more time, and with clearer U.S. positions on these issues.
90. This was an unrecorded vote, presumably designed to encourage some States to vote against the Statute.
91. See Rome Statute, supra note 2. As a result of the limited time available between the adoption of the Statute and the Treaty's opening for signature ceremony, the Statute's text required a few corrections. Substantive corrections were made to Article 8, paragraph 4; Article 121, paragraph 5; and Article 124. For non-substantive errors, the Department of Legal Affairs instituted a no objectionprocedure. See supra note 41.
92. Regrettably, the United States, China and India did not join in the vote for the establishment of the ICC, and because of the importance of these states, it is hoped that they will see fit to join at a later date. The preparatory commission established by the General Assembly (based on the Conference's resolution contained in Annex I, F of the Final Act) may be the vehicle through which these major governments and others could explore possibilities of finding solutions to their concerns. For other states voting against the Statute, see Benedetti & Washburn, supra note 24, at 27 (noting that "the U.S. delegation found itself, according to the records of most observers, dissenting in the company of the delegations of Israel, China, Iraq, Yemen, Libya, and Qatar.").
93. Complex national legislation is frequently prepared by legislative experts who also benefit from the advice and expertise of consultants outside of the legislative process. Bar Associations and professional groups also frequently provide their input. These processes often take a long time, thus giving an opportunity for reflection and deliberation. In contrast, the history of ICC reveals how few experts work on even a complex statute, how little time is available at a diplomatic conference, and how haphazard that process can be.
94. The Secretariat also contributed significantly to the negotiating process, although its role is not widely known beyond those few insiders who helped assemble the text. The members of the Secretariat worked efficiendy and indefatigably. During the last week of the Conference, many of them slept only a few hours a day, with some working almost around the clock in the final three days. Their extraordinary contribution should not be overlooked by posterity. They are: Hans Corell, Under-Secretary-General and Legal Counsel; Roy Lee, Director of the Codification Division of the Office of Legal Affairs and the Conference's Executive Secretary; Manuel Rama-Montaldo, Secretary, Drafting Committee; Mahnoush Arsanjani, Secretary, Committee of the Whole; Mpazi Sinjela, Secretary, Credentials Committee; and Christiane Bourloyarnnis-Vrailas, Virginia Morris, Vladimir Rudnitsky and Renan Villacis, Assistant Secretaries of the Conference.
95. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/Conf.183/2/Add.1, July 17, 1998, reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra note 2, at 119-210.
96. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/Conf.183/2/Add.1, July 17, 1998, reprinted in THE STATUTE OF THE INTERNATIONAL COURT, supra note 2, at 119-210.
97. See supra note 43 for other Part 2 topics.
98. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 8, 1948, 78 U.N.T.S. 277, reprinted in 45 AM. J. INT'L L. 7 (1951) (Supp.).
99. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 8, 1948, 78 U.N.T.S. 277, reprinted in 45 AM. J. INT'L L. 7 (1951) (Supp.).
100. Article 2 of Genocide Convention refers only to "national, ethnic or religious" groups. It does not include social or political ones. The delegates chose to not expand the Genocide Convention's definition since doing so might have required states to revise their laws implementing that Convention. Despite the strong urging of this writer, the delegates unfortunately lost a historic opportunity to fill these unjustified gaps.
101. See Agreement for the Prosecution and Punishment of London Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 299, E.A.S. 742. See also M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW (2d rev. ed. 1999) [hereinafter BASSIOUNI, CRIMES AGAINST HUMANITY].
102. See Agreement for the Prosecution and Punishment of London Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 299, E.A.S. 742. See also M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW (2d rev. ed. 1999) [hereinafter BASSIOUNI, CRIMES AGAINST HUMANITY].
103. See Agreement for the Prosecution and Punishment of London Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 299, E.A.S. 742. See also M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW (2d rev. ed. 1999) [hereinafter BASSIOUNI, CRIMES AGAINST HUMANITY].
104. See International Criminal Tribunal for the Former Yugoslavia (ICTY), S.C. Res. 808, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/808 (1993). See also M. CHERIF BASSIOUNI (in collaboration with PETER MANIKAS), THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1996).
105. See International Criminal Tribunal for Rwanda (ICTR), S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994). See also VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (1997).
106. The drafters were under pressure from different sources to include certain prohibited acts in the Statute, but they did not draft specific elements which would have required lengthy and complicated sub-paragraphs. There was no time to engage in such detailed technical legal drafting.
107. The required element of policy (i.e., state action) distinguishes crimes against humanity from other mass human rights violations and establishes its status as a category of international crimes. See BASSIOUNI, CRIMES AGAINST HUMANITY, supra note 76, at 246-49. The element of policy also applies to non-State actors, which is not clear in Article 7(1) and 7(2). Id.
108. Id.
109. Id. 83. For example, Article 8(b) reflects the provisions of Common Article 3 of the 1949 Geneva Conventions and some provisions of Protocol (II) Additional to Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Conflicts, opened for signature, Dec. 12, 1977, U.N. Doc. A/32/144/Annex II (1977), reprinted in 16 I.L.M. 1391, both of which apply to international conflicts. Some provisions of Protocol (I) Additional to Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Conflicts, opened for signature, Dec. 12, 1977, U.N. Doc. A/32/144/Annex I (1977), reprinted in 16 I.L.M. 1391, also apply to international conflicts.
110. See M. Cherif Bassiouni, Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities, 8 TRANSNAT'L L. & CONTEMP. PROBS. 199 (1998). Interpretation problems arising from the overlap have already surfaced in connection with the ICTR's Akayesu case, The Prosecutor vs. Jean-Paul Akayesu, Case No. ICTR-96-4-T. In the French legal system and other Civilist/Romanist legal systems, this problem is referred to as concours idèal d'infractions (the ideal concurrence of crimes). When several crimes have overlapping legal elements, the judge has difficulty establishing which crime was committed. Presumably, the Preparatory Commission established under Resolution F of the Final Act pursuant to Article 9 will resolve some of these issues.
111. This writer faced this problem when developing a "general part" of international criminal law. See M. CHERIF BASSIOUNI, A DRAFT INTERNATIONAL CRIMINAL CODE AND A DRAFT STATUTE FOR AN INTERNATIONAL CRIMINAL TRIBUNAL (1987) [hereinafter DRAFT INTERNATIONAL CRIMINAL CODE]. For additional information on Part 3, see William A. Schabas, General Principles of Criminal Law in the International Criminal Court Statute (Part III), 6 EUR. J. CRIME, CRIM. L. & CRIM. JUST. 84-112 (1998).
112. This writer faced this problem when developing a "general part" of international criminal law. See M. CHERIF BASSIOUNI, A DRAFT INTERNATIONAL CRIMINAL CODE AND A DRAFT STATUTE FOR AN INTERNATIONAL CRIMINAL TRIBUNAL (1987) [hereinafter DRAFT INTERNATIONAL CRIMINAL CODE]. For additional information on Part 3, see William A. Schabas, General Principles of Criminal Law in the International Criminal Court Statute (Part III), 6 EUR. J. CRIME, CRIM. L. & CRIM. JUST. 84-112 (1998).
113. See various audiors in 67 REVUE INTERNATIONAL DE DROIT PéNAL (1996), commenting on DRAFT INTERNATIONAL CRIMINAL CODE, supra note 84.
114. See BASSIOUNI, CRIMES AGAINST HUMANITY, supra note 76.
115. See Res. F of the Final Act at paragraph 5(b) ("The Commission shall prepare proposals for practical arrangements for the establishment and coming into operation of the Court, including the draft texts of . . . Elements of Crimes.").
116. Article 21 of the Statute permits recourse to alternative legal sources of international law. That very norm, however, may pose problems in light of Article 22, which clearly states the applicability of the principle nullum crimen sine lege. 90. However, as illustrated by the work of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), this approach may not necessarily benefit the accused in connection with gathering evidence. See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 49th Sess., Annex, U.N. Doc. S/1994/674 (1994); Annexes to the Final Report, U.N. SCOR, 49th Sess., U.N. Doc. S/1994/674/Add.2 (1994); M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 CRIM. L.F. 279 (1994). Representatives of the ICTY repeatedly pointed out the practical problems they faced when they appeared before the PrepCom, but their concerns about effectiveness and operational questions were not sufficiently heeded.
117. Article 21 of the Statute permits recourse to alternative legal sources of international law. That very norm, however, may pose problems in light of Article 22, which clearly states the applicability of the principle nullum crimen sine lege. 90. However, as illustrated by the work of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), this approach may not necessarily benefit the accused in connection with gathering evidence. See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 49th Sess., Annex, U.N. Doc. S/1994/674 (1994); Annexes to the Final Report, U.N. SCOR, 49th Sess., U.N. Doc. S/1994/674/Add.2 (1994); M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 CRIM. L.F. 279 (1994). Representatives of the ICTY repeatedly pointed out the practical problems they faced when they appeared before the PrepCom, but their concerns about effectiveness and operational questions were not sufficiently heeded.
118. For example, the French delegation repeatedly sought to introduce an alternate approach but ultimately acquiesced to the U.S. and U.K. position.
119. While many delegates questioned the necessity of such detail, that was one of the concessions granted to the U.S. delegation. In the future, however, such an approach will likely encumber the Court with procedural hurdles. Consequently, the effectiveness of ICC may suffer and its proceedings are likely to be lengthy and procedurally contentious.
120. See S.C. Res. 808, supra note 77.
121. See S.C. Res. 955, supra note 78, art. 14.
122. See supra note 89.
123. See S.C. Res. 827, U.N. SCOR, 48th Sess., U.N. Doc. S/RES 827 (1993).
124. See, e.g., Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. GAOR, 40th Sess., U.N. Doc. A/40/53 (1985); Study Concerning the Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report submitted by Mr. Theo Van Boven, Special Rapporteur, U.N. ESCOR, 45th Sess., U.N. Doc. E/CN.4/Sub.2/ 1993/8 (1993); Revised Set of Basic Principles and Guidelines on the Rights to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, prepared by Mr. Theo Van Boven pursuant to Sub-Commission decision 1995/117, U.N. Doc. E/CN.4/ Sub.2/1996/17 (1996); Question of the Human Rights of All Persons Subject to Any Form of Detention or Imprisonment, U.N. Doc. E/CN.4/1997/104; Report of the Independent Expert on the Right to Restitution, Compensation, and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, submitted by Mr. M. Cherif Bassiouni pursuant to Commission on Human Rights Resolution 1998/43, U.N. Doc. E/ CN.4/1999/65 (1999).
125. See, e.g., 2 INTERNATIONAL CRIMINAL LAW (M. Cherif Bassiouni ed., 2d ed. 1999).
126. See M. Cherif Bassiouni, Observations Concerning the 1997-98 Preparatory Committee's Work, in 13 NEP, supra note 2, at 12-13; M. Cherif Bassiouni, Observations on the Structure of the (Zutphen) Consolidated Text, in 13bis NEP, supra note 2, at 8-9, 11-16.
127. See M. Cherif Bassiouni, Observations Concerning the 1997-98 Preparatory Committee's Work, in 13 NEP, supra note 2, at 12-13; M. Cherif Bassiouni, Observations on the Structure of the (Zutphen) Consolidated Text, in 13bis NEP, supra note 2, at 8-9, 11-16.
128. It should be noted that Article 21, "Applicable Law," states: 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
129. The Court may apply principles and rules of law as interpreted in its previous decisions.
130. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any
131. The five-week period (with 24 working days) was negotiated between the U.N. Office of Legal Affairs and the Italian Government. Cost factors largely determined the period of time and the number of U.N. personnel at the Conference.
132. See supra notes 32-48 and accompanying text for a description of problems in the drafting process of the ICC Statute.
133. See supra note 13.
134. See Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/Conf.183/9 (1998), at Annex 1 (F). The Preparatory Commission's duties included the preparation of proposals for practical arrangements for the establishment and coming into operation of the Court, including the draft texts of: (a) Rules of Procedure and Evidence; (b) Elements of Crimes; (c) A relationship agreement between the Court and the United Nations; (d) Basic principles governing a headquarters agreement to be negotiated between the Court and the host country; (e) Financial regulations and rules; (f) An agreement on the privileges and immunities of the Court; (g) A budget for the first financial year; (h) The rules of procedure of the Assembly of States Parties. The Commission is also charged to prepare a draft provision for the crime of aggression.
135. M. Cherif Bassiouni, Speech at Rome Ceremony (July 18, 1998). In that speech I refer to the few to which so many owe their thanks. Among those who were delegates and who merit special recognition for their commitment, hard work and dedication to the success of this endeavor are: François Alabrune, France; Zeid Ra'ad Zeid Al-Hussein, Jordan; Hans-Joerg Behrens, Germany; Franklin Berman, United Kingdom; Trevor Chimimba, Malawi; Jamison S. Borek, United States; Adriaan Bos, The Netherlands; Lucius Caflisch, Switzerland; Delia Chatoor, Trinidad and Tobago; Roger Clark, Samoa; Harvey Dalton, United States; Phani Daskalopoulou-Livada, Greece; Susan J. Dickson, United Kingdom; Paula Escarameia, Portugal; Sylvia Alejandra Ferandez de Gurmendi, Argentina; Rolf Einar Fife, Norway; Charles Garraway, United Kingdom; Fabricio Guariglia, Argentina; Gerhard Hafner, Austria; John Holmes, Canada; Mark B. Jennings, Australia; Hans-Peter Kaul, Germany; Philippe Kirsch, Canada; Erkki Kourula, Finland; Sung-Kyu Lee, Korea; Beatrice Le Fraper du Hellen, France; Lamia Mekheimer, Egypt; Phakiso Mochochoko, Lesotho; Christopher Muttukumaru, United Kingdom; Yasumasa Nagamine, Japan; Hisashi Owada, Japan; Marc Perrin de Brichambaut, France, Donald Piragoff, Canada; Mauro Politi, Italy; Rama Rao, India; Medard R. Rwelamira, South Africa; Waleed Sadi, Jordan; Per Saland, Sweden; David Scheffer, United States; Joanna Scott, France; Cathrine Lisa Steans, Australia; Peter Tomka, Slovakia, Peter Vallance, United Kingdom; Hermann Von Hebel, The Netherlands; Mary Ellen Warlow, United States; Elizabeth Wilmhurst, United Kingdom; Felicity Wong, New Zealand; and Lionel Yee, Singapore. The responsibility for the Conference rested on the Italian Ministry of Foreign Affairs, and more particularly on Ambassador Umberto Vattani, Secretary-General of the Ministry; Professor Umberto Leanza, Director of Legal Affairs and his Deputy Counselor, Umberto Colesanti; and at the Italian Mission to the United Nations, Ambassador Francesco Paolo Fulci and Professor Mauro Politi. Last, but not least, is Professor Giovanni Conso, Former Minister of Justice and Honorary President of the Constitutional Court, who was the President of the Conference. Many academics have worked for the establishment of the ICC and their scholarly work made it possible for the idea to gain international recognition and national support. As with all such developments, it takes dedicated, knowledgeable and capable persons to transform ideals into reality. 32 CORNELL INT'L L.J. 471 (1999)