In July
1998, the Diplomatic Conference of Plenipotentiaries
(hereinafter as the Rome Conference) on the establishment of
the International Criminal Court, being held in Rome, Italy,
adopted by way of voting The Rome Statute on the
International Criminal Court (hereinafter as the Statute).
The Statute would come into force 60 days after the deposit
of the 60th instrument of ratification. Up to December 31,
2000 (the final day of its opening to signatures), 139
states signed the Statute. 27 states including
France, Germany and Canada ratified
it.
To ensure the smooth
operation of the court after its inception, the Rome
Conference decided to set up the Preparatory Committee
(hereinafter as “PrepCom”) for the International
Criminal Court, to complete the necessary preparations
before the formal establishment of the court. The
PrepCom consisted of all the states that had signed the
Final Act of the Rome Conference and states that had been
invited by the conference. Its primary task was to
draft the supplementary documents such as The Elements of
Crimes, Rules of Procedure and Evidence, the agreement on
the relations between the court and the UN, financial
ordinance and its detailed rules and regulations. Besides,
the PrepCom would also draft a text on the definition of the
crime of aggression and the conditions for the court to
exercise jurisdiction over it, which would be submitted to
the conference of the contracting states for its
examination.
Up to the present,
the PrepCom has held 6 sessions. In accordance with the
relevant resolution of the UN General Assembly, it held 3
sessions in 2000 at the UN Headquarters in New York to draft
The Elements of Crimes, The Rules of Procedure and Evidence
and other relevant documents. As one of the
signatories to the Final Act of the Rome Conference, China
actively participated in the work of the PrepCom in various
aspects with a serious, practical and constructive
attitude.
During its 5th
session held in June this year, the PrepCom completed the
drafting of The Elements of Crimes and The Rules of
Procedure and Evidence within the deadline set by the Final
Act of the Rome Conference. The two documents would be
applicable laws for the court. Their drafting commanded
great attention of the states. After 5 heated
consultations of the PrepCom and in-depth discussions in
several informal meetings between sessions, the states
eventually reached consensus on the contents of the two
documents. During the 55th General
Assembly’s discussion of the item on the International
Criminal Court, the states welcomed the adoption of the two
documents and gave positive comments on the work of the
PrepCom.
The Elements of Crimes
stipulates the component elements for the crime of genocide,
the war crime and the crime against humanity under the
jurisdiction of the court and would become an applicable law
for the ICC. During the discussion, the crime
against humanity caused serious argument. Because
some states feverishly advocated lowering the threshold of
the crime against humanity, the states carried out arduous
consultations. The most outstanding difference concerned the
“Preamble” of the elements for the crime against
humanity. As the “Preamble” is the
guiding principle for the interpretation and application of
the elements of crimes, its contents would produce decisive
influence over the elements of specific crimes, over which a
compromise had been reached. Therefore, the states
were cautious in discussing this part of the contents,
unwilling to make any compromise over key questions.
The negotiation once reached an impasse.
It was not until the last day before the
conclusion of the session that the working group reached
consensus on the content of the “Preamble”.
Before the adoption of the draft text, the Chinese
Delegation made known its reservations over the
“Preamble” of the document, the crime of
enslavery, the crime of forced sterilization and the crime
of coercive disappearance.
The
Rules of Procedure and Evidence (hereinafter as the
“RPE”) stipulates the operational procedure of
the various component parts of the court, is the concretion
of the contents of the relevant procedure of the Statute.
After in-depth discussions by the states, a draft
text containing 225 rules and regulations was hammered out.
Its contents incorporated the features of
different legal systems and a balance was maintained between
the rights and obligations of the parties concerned.
The stand and views of the Chinese Delegation were
mostly absorbed into the draft text. This was
helpful in keeping the balance of judicial powers and
functions between the court and the sovereign states and
played an important and constructive role in ensuring that
the formulation of the RPE would not deviate from the right
track. It is noteworthy that the RPE leaves for
the various institutions of the court certain right of
discretion. In its intervention at the General Assembly,
China stressed that in future in the course of applying and
interpreting the RPE, they should strictly follow the basic
principle of subordinating the RPE to the
Statute.
With the completion of
the drafting of the two major documents, the issue of the
crime of aggression drew more and more attention and became
one of the focal points of the 6th session of the PrepCom.
The states engaged in unprecedented heated debates
on this issue but no substantive progress was
made.
The discussion on the
crime of aggression centered primarily on its definition and
the conditions for the court to exercise jurisdiction over
it.
The core issue
of the definition was whether the individual behavior that
constituted the crime of aggression should be the launching
or executing the war of aggression, the act of aggression or
all the acts of illegal use of armed force. Based
on these points, the relevant states accordingly tabled
draft resolutions.
With regard
to the conditions for the court to exercise jurisdiction,
from the PrepCom to the Preparatory Commission, this issue
all along remains as the major difference between the five
Permanent Members of the Security Council and the other
states. The five Permanent Members all along insist that the
determination of the Security Council is the prerequisite
for the court to exercise jurisdiction over the crime of
aggression and that this content should become an
indispensible part of the definition of the crime of
aggression. At the 6th session, the positions of some states
were rather close to that of the five Permanent Members
whereas the other states opposed it to different degrees.
China stressed in its intervention that since the
precondition for an individual to bear the criminal
responsibility is that the state commits an act of
aggression, in the absence of a determination by the
Security Council on the situation of aggression, the court
lacks the basis to prosecute the individual for his criminal
liability. Besides, allowing the court to exercise
jurisdiction before the Security Council makes the
determination was practically bestowing on the court the
right of determination on the state act of aggression.
This runs counter to the provisions of the
Charter. As for the proposal of making the
determination by the General Assembly or the International
Court, there is no relevant foundation in the Charter.
Though the General Assembly could discuss affairs related to
international peace and security, on the question of the
determination of aggression, the exclusive power the Charter
confers on the Security Council is explicit.
In order to solve
its concern over the immunity from the
jurisdiction of the court of its troops stationed
overseas, when the RPE was being discussed in the 5th
session, the US tabled a draft text on the rule of
Paraphrase 2, Article 98 of the Statute, providing that as
it may be inhibited by a certain international agreement,
the court could not require a contracting state to hand over
the defendant to it. As this draft resolution was
practically an amendment of the Statute, it was
opposed by the majority of states. After
several consultations, the two sides reached a compromise.
The US draft resolution was partially incorporated in the
RPE, but the content of Paraphrase 2, Article 98 of the
Statute was emphasized and a relevant agreement of
understanding on this rule was reached, making clear that
this rule should not be interpreted as requiring the court,
international organizations and states to conclude an
agreement in future on the question of handing over.
From the start of its 6th
session, the PrepCom set about drafting the financial
ordinance and its detailed rules and regulations of the
court, the agreement on the relations between the court and
the United Nations and the agreement on the privileges and
immunity of the court. The foregoing documents
were based on the draft resolutions worked out by the UN
Secretariat at the request of the PrepCom. At
present the first reading of some of the articles and
clauses of these documents has all been completed.
As most of the contents of these documents were
standard articles and clauses with rich international
experience in practice, they did not caused much argument.
In accordance with the resolution adopted by the
55th General Assembly, the PrepCom would hold two sessions
in 2001 to continue the drafting of the above-mentioned documents.