Document - International Criminal Court: Making the right choices - Part V

THE INTERNATIONAL CRIMINAL COURT

Making the right choices - Part V

Recommendations to the diplomatic conference

TABLE OF CONTENTS

16 FUNDAMENTAL PRINCIPLES FOR A JUST, FAIR AND EFFECTIVE INTERNATIONAL CRIMINAL COURT

ABBREVIATIONS USED IN THIS PAPER

INTRODUCTION

PREAMBLE OF THE STATUTE

PART 1. ESTABLISHMENT OF THE COURT

Article 1 - The Court [Zutphen 1; ILC 1]

Article 2 - The relationship of the court with the United Nations [Zutphen 2; ILC 2]

Article 3 - Seat of the court [Zutphen 3; ILC 3]

Article 4 - Status and legal capacity [Zutphen 4; ILC 4]

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW

Article 5 - Crimes within the jurisdiction of the Court [Zutphen 5; ILC 20]

Genocide

War crimes

Crimes against humanity

Other crimes

Article 6 - [Exercise of jurisdiction] [Preconditions to the exercise of jurisdiction] [Zutphen 6; ILC 23, 25]

Further option for Article 6

[Article 7] - Preconditions to the exercise of jurisdiction [Zutphen 7; ILC 21 bis]

Further option for Article 7

[Article 8] - Temporal jurisdiction [Zutphen 8; 21 ter]

[Article 9] - Acceptance of the jurisdiction of the Court [Zutphen 9; ILC 22]

Further option to Article 9

[Article 10] - [[Action by] [Role of] The Security Council] [Relationship between the Security Council and the International Criminal Court] [Zutphen 10; ILC 23]

Further option to Article 10

Article 11. Complaint by State [Zutphen 6; 21]

Further option for Article 11

[Article 12]. Prosecutor [Zutphen 46; ILC 25 bis]

[Article 13]. Information submitted to the Prosecutor [new]

Further option for articles 6, 7, 10 and 11 [new]

Article 14. Duty of the Court as to jurisdiction [Zutphen 12; ILC 24]

Article 15. Issues of admissibility [Zutphen 11; ILC 35]

[Article 16]. Preliminary rulings regarding admissibility [new]

Article 17. Challenges to the jurisdiction of the Court or the admissibility of a case [Zutphen 12; ILC 36]

Article 18. Ne bis in idem[Zutphen 13; ILC 42]

Article 19 [new]

Article 20. Applicable law [Zutphen 14; ILC 33]

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW

Article 21. Nullum crimen sine lege[Zutphen 15; ILC A]

Article 22. Non-retroactivity [Zutphen 16; ILC A bis]

Article 23. Individual criminal responsibility [Zutphen17; ILC B.a to d]

Article 24. Irrelevance of official position [Zutphen 18; ILC B.e]

Article 25. Responsibility of [commanders] [superiors] for acts of [forces under their command] [subordinates] [Zutphen 19; ILC C]

Article 26. Age of responsibility [Zutphen 20; ILC E]

Article 27. Statute of limitations [Zutphen 21; ILC F]

Article 28. Actus reus(act and/or omission) [Zutphen 22; ILC G]

Article 29. Mens rea(mental elements) [Zutphen 23; ILC H]

Article 30. Mistake of fact or law [Zutphen 24; ILC K]

Article 31. Grounds for excluding criminal responsibility [Zutphen 25; ILC L]

Article 32. Superior orders and prescription of law [Zutphen 26; ILC M]

[Article 33. Possible grounds for excluding criminal responsibility specifically referring to war crimes] [Zutphen27; ILC N]

Article 34. Other grounds for excluding criminal responsibility [Zutphen 28; ILC O]

PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT

Article 35. Organs of the Court [Zutphen 29; ILC 5]

Article 36. Judges serving on a full-time basis [Zutphen 29 bis]

Article 37. Qualifications and election of judges [Zutphen 30; ILC 6]

Article 38. Judicial vacancies [Zutphen 31; ILC 7]

Article 39. The Presidency [Zutphen 32; ILC 8]

Article 40. Chambers [Zutphen 33; ILC 9]

Article 41. Independence of the judges [Zutphen 34; ILC 10]

Article 42. Excusing and disqualification of judges [Zutphen 35; ILC 11]

Article 43. The Office of the Prosecutor [Zutphen 36; ILC 12]

Article 44. The Registry [Zutphen 37; ILC 13]

Article 45. Staff [Zutphen 36, 37]

Article 46. Solemn undertaking [Zutphen 38; ILC 14]

Article 47. Removal from office [Zutphen 39; ILC 15]

Article 48. Disciplinary measures [Zutphen 39 bis]

Article 49. Privileges and immunities [Zutphen 40; ILC 16]

Article 50. Salaries, allowances and expenses [Zutphen 41; ILC 17]

Article 51. Working languages [Zutphen 42; ILC 18]

Article 52. Rules of Procedure and Evidence [Zutphen 43; ILC 19]

Article 53. Regulations of the Court [Zutphen 43 bis]

PART 5. INVESTIGATION AND PROSECUTION

Article 54. Investigation of alleged crimes [Zutphen 47; ILC 26]

Article 55. Information on national investigations or proceedings [Zutphen 48; ILC 26 bis]

Article 56. Deferral of an investigation by the Prosecutor [Zutphen 49; ILC 26ter]

Article 57. Functions of the Pre-Trial Chamber in relation with investigation [Zutphen 50; ILC 26 quater]

Further option for Articles 58 to 61 [Zutphen 51-54; ILC 27 to 30]

Further option for Article 58. Commencement of prosecution [Zutphen 51; ILC 27]

Further option for Article 59. Arrest proceedings in the custodial state [Zutphen 52; ILC 28]

Further option for Article 60. Initial proceedings before the Court [Zutphen 53; ILC 29]

Further option for Article 61. Confirmation of the charges before trial [Zutphen 54; ILC 30]

PART 6. THE TRIAL

Article 62. Place of trial [Zutphen 55; ILC 32]

Article 63. Trial in the presence of the accused [Zutphen 56; ILC 37]

Article 64. Functions and powers of the trial chamber [Zutphen 57; ILC 38]

Article 65. Proceedings on an admission of guilt [Zutphen 58; ILC 38 bis]

Article 66. Presumption of innocence [Zutphen 59; ILC 40]

Article 67. Rights of the accused [Zutphen 60; ILC 41]

Article 68 - Protection of the [accused], victims and witnesses [and their participation in the proceedings] [Zutphen 61; ILC 43]

Article 69. Evidence [Zutphen 62; ILC 44]

Article 70. Offences or acts against the integrity of the Court [Zutphen 63; ILC 44 bis]

[Article 71]. Sensitive national security information [Zutphen 64; ILC 44ter]

Article 72. Quorum and judgement [Zutphen 65; ILC 45]

Article 73. Reparations to victims [Zutphen 66; ILC 45bis]

Article 74. Sentencing [Zutphen 67; ILC 46]

PART 7. PENALTIES

Article 75. Applicable penalties [Zutphen 68; ILC A]

[Article 76. Penalties applicable to legal persons [Zutphen 69; 47 bis]

Article 77. Determination of the sentence [Zutphen 70; ILC B, C, E]

Article 78. Applicable national legal standards [Zutphen 71; ILC D]

Article 79. Fines [and assets] collected by the Court [Zutphen 72; ILC 47 ter]

PART 8. APPEAL AND REVIEW

Article 80. Appeal against judgement or sentence [Zutphen 73; ILC 48]

Article 81. Appeal against interlocutory decisions [Zutphen 73 bis]

Article 82. Proceedings on appeal [Zutphen 74; ILC 49]

Article 83. Revision of conviction or sentence [Zutphen 75; ILC 50]

[Article 84]. Compensation to a suspect/accused/convicted person [Zutphen 76; ILC 50 bis]

PART 9. INTERNATIONAL COOPERATION AND ASSISTANCE

Article 85. General obligation to cooperate [Zutphen 77; ILC 51]

Article 86. [Requests for cooperation: general provisions] [Zutphen 78; ILC 52]

Article 87. [Surrender] [Transfer] [Extradition] of persons to the Court [Zutphen 79; ILC 53]

Article 88. Contents of request for [surrender] [transfer] [extradition] [Zutphen 80; ILC 53 bis]

Article 89. Provisional arrest [Zutphen 81; ILC 54]

Article 90 - Other forms of cooperation [and judicial and legal [mutual] assistance] [Zutphen 82; ILC 55]

Article 91. Execution of requests under article 90 [Zutphen 83; ILC 56]

Article 92. Rule of speciality [Zutphen 84; ILC 57]

PART 10. ENFORCEMENT

Article 93. General obligation regarding recognition [and enforcement] of judgements [Zutphen 85; ILC 58]

Article 94. Role of States in enforcement [and supervision] of sentences of imprisonment

Article 95. Enforcement of the sentence

Article 96. Supervision and administration of sentence

Article 97. Transfer of the person upon completion of sentence

Article 98. Limitation of prosecution/punishment for other offences [Zutphen 87; ILC 59 bis]

Article 99. Enforcement of fines and forfeiture measures [Zutphen 88; ILC 59 ter]

Article 100. Pardon, parole and commutation of sentences [early release] [Zutphen 89; ILC 60]

[Article 101]. Escape [Zutphen 90; 60 bis]

PART 11 - ASSEMBLY OF STATES PARTIES

Article 102. Assembly of States Parties

PART 11 - FINANCING OF THE COURT

Article 103. Payment of expenses of the Court

Article 104. Funds of the Court

Article 105. Voluntary contributions

0 Article 106. Assessment of contributions

Article 107. Annual audit

PART 13. FINAL CLAUSES

Article 108. Settlement of disputes [Zutphen 91; SDT A]

Article 109. Reservations [Zutphen 92; SDT B]

Article 110. Amendments [Zutphen 93 [SDT C]

Article 111. Review of the Statute [Zutphen 95; SDT E]

Article 112. Signature, ratification, acceptance, approval or accession [Zutphen 96; SDT F]

[Article 113. Early activation of principles and rules of the Statute] [new]

Article 114. Entry into force [Zutphen97; SDT G]

Article 115. Withdrawal

Article 116. Authentic texts [ Zutphen 99; SDT I]

SUPPLEMENTARY DOCUMENTS

A. Final Act

B. Establishment of a Preparatory Commission

THE DIPLOMATIC CONFERENCE

16 FUNDAMENTAL PRINCIPLES FOR A JUST, FAIR AND EFFECTIVE INTERNATIONAL CRIMINAL COURT

1. The court should have jurisdiction over the crime of genocide. The statute should provide that the court has jurisdiction over this crime as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, in peace as well as during armed conflict.

2. The court should have jurisdiction over other crimes against humanity. The court should have jurisdiction over other crimes against humanity, including the following crimes when committed on a systematic basis orlarge-scale (there should be no requirement that they have to be bothsystematic andlarge scale): murder; extermination; forced disappearance of persons; torture; rape, enforced prostitution and other sexual abuse; arbitrary deportation across national frontiers and forcible transfer of population within national frontiers; arbitrary detention; enslavement; persecution on political, racial, religious or other grounds; and other inhumane acts. The court should have jurisdiction over these crimes whether they have been committed in peace or armed conflict.

3. The court should have jurisdiction over serious violations of humanitarian law in international and non-international armed conflict. The court should have jurisdiction over serious violations of humanitarian law in internationalarmed conflicts, including: all grave breaches of the Geneva Conventions of 1949, grave breaches and denials of fundamental guarantees of Additional Protocol I to the Geneva Conventions and violations of the 1907 Hague Convention IV and its Regulations. The court should also have jurisdiction over serious violations of humanitarian law in non-internationalarmed conflicts, including violations of common Article 3 of the Geneva Conventions and Additional Protocol II to the Geneva Conventions. There should be no threshold, such as a requirement that the violations of humanitarian law in either type of conflict were part of a plan or policy or part of a large-scale commission of such crimes. Similarly, there should be no threshold for violations of common Article 3.

4. The court must ensure justice for women. The statute should include jurisdiction over rape, enforced prostitution and other sexual abuse as crimes against humanity, when committed on a systematic basis or large scale, and as serious violations of humanitarian law in international and non-international armed conflict. The prosecutor must investigate these and other crimes against women and all staff in all organs of the court should receive training relevant to the investigation and prosecution of crimes against women. The court must be able to take certain measures to protect women victims and their families from reprisals and unnecessary anguish to which they might be exposed in a public trial, without prejudicing the rights of suspects and accused to a fair trial. The statute should also facilitate the selection of women with a view to achieving gender balance in all organs of the court.

5. The court must have inherent (automatic) jurisdiction. The statute should provide that all states when ratifying or acceding to the statute consent to the court having inherent (that is, automatic) jurisdiction over the three core crimes of genocide, other crimes against humanity and serious violations of humanitarian law. No further state consent should be required. Since such inherent jurisdiction is concurrentwith that of states, the court would exercise its jurisdiction only when states were unable or unwilling to exercise their jurisdiction.

6. The court must have the same universal jurisdiction over these crimes as any of its states parties. Under international law, each of these three core crimes - genocide, other crimes against humanity and serious violations of humanitarian law - are crimes of universal jurisdiction. That means thatanystate may exercise jurisdiction over a person suspected of having committed one of these crimes and bring anyoneresponsible for such crimes to justice no matter where the crime was committed. If the court is to be an effective complement to national courts, and not a weaker court, then it must have the same universal jurisdiction over these crimes as any one of the states parties.

7. The court must have the power in all cases to determine whether it has jurisdiction and whether to exercise it without political interference from any source. If the court is to be an effective complement to national courts when they are unable or unwilling to bring those responsible to justice for these crimes, it must be able to determine when they are unable or unwilling to do so. Otherwise the court will be at the mercy of states which are unable or unwilling to bring those responsible for the worst crimes in the world and which are also unwilling to have any other court do so.

8. The court should be aneffectivecomplement to national courts when these courts are unable or unwilling to bring to justice those responsible for these grave crimes. Every provision of the proposed statute must be tested against this requirement that the court be effective. Many of the proposals by states would make the court lesseffective than the national courts of states parties.

9. An independent prosecutor should have the power to initiate investigations on his or her own initiative, based on information from any source, subject only to appropriate judicialscrutiny, and present search and arrest warrants and indictments to the court for approval. There is only one truly effective method to ensure that all cases which should be brought before the court are brought. An independent prosecutor should be able to initiate investigations of any crime within the court's jurisdiction on his or her own initiative, based on information from any source, and present search and arrest warrants and indictments to the court for approval, without state interference. The Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda (Yugoslavia and Rwanda Tribunals) has the power to initiate investigations of any crime which took place within the tribunals' jurisdiction on his or her initiative, and present indictments to the tribunals for approval, without any selection or prior interference by the Security Council or states, although states are free to seek judicial review of court orders. There are advantages to permitting the Security Council to refer situations involving threats to or breaches of international peace and security to the prosecutor for investigation pursuant to Chapter VII of the UN Charter, as the requests and orders of the court would benefit from the Security Council's Chapter VII enforcement powers, but referrals and state complaints should only be a supplement to other sources for the prosecutor. Both the Security Council and states are political bodies and likely to select situations on political, not legal, grounds. Moreover, neither are likely to submit many situations. The Security Council has established only two ad hoctribunals in more than half a century and states rarely file complaints against other states under state complaint mechanisms of human rights treaties.

10. No political body, including the Security Council, or states, should have the power to stop or even delay an investigation or prosecution under any circumstances whatsoever. There is no legitimate ground under international law or morality to obstruct justice by stopping or delaying investigations of crimes of genocide, other crimes against humanity or serious violations of humanitarian law. Indeed, all states have obligations to repress these crimes. Justice must never be a bargaining chip in peace negotiations. Therefore, no nationalamnesty or pardon which has prevented justice and the emergence of the truth may prevent the internationalcourt from bringing those responsible for these crimes under international law to justice. The Security Council has never sought to prevent the International Court of Justice or national courts from hearing cases involving situations which it was considering under its Chapter VII powers to address threats to or breaches of international peace and security. Any delays in an investigation would let memories of witnesses fade and facilitate the destruction of evidence and intimidation of witnesses.

11. To ensure that justice is done, the court must develop effective victim and witness protection programs, involving the assistance of all states parties, without prejudicing the rights of suspects and the accused. The court, in close cooperation with states, must be able to take certain security measures to protect witnesses and victims and their families from reprisals. Such measures must not prejudice the rights of suspects and accused.

12. The court must have the power to award victims and their families reparations, including restitution, compensation and rehabilitation. As recognized in a wide variety of international instruments, including the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, victims of grave human rights violations and their families have the right to reparations, including restitution, compensation and rehabilitation. The court itself should have the power to award such reparations since it is unlikely that national courts, which were unable or unwilling to bring the person responsible to justice, will be able or willing to award reparations or to enforce the award.

13. The statute must ensure suspects and accused the right to a fair trial in accordance with the highest international standards at all stages of the proceedings. If the court is to be effective, particularly in the situations in which these crimes occur, justice must not only be done, but be seen to be done. Therefore, the court must be scrupulous in its respect for the highest possible international standards for fair trial. These standards include those found in Articles 9, 10 and 11 of the Universal Declaration of Human Rights; Articles 9, 14 and 15 of the International Covenant on Civil and Political Rights; the UN Standard Minimum Rules for the Treatment of Prisoners; the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Articles 7 and 15 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the UN Basic Principles on the Independence of the Judiciary; the UN Basic Principles on the Role of Lawyers; and the UN Guidelines on the Role of Prosecutors.

14. All states parties, including their courts and officials, must provide full cooperation without delay to the court at all stages of the proceedings. Like the two ad hocYugoslavia and Rwanda Tribunals, the court will be largely dependent upon state cooperation, whether this involves voluntary measures such as on-site visits and interviews with witnesses, or compulsory process to search premises, compel testimony and production of documents or to arrest and transfer persons. Therefore, all states parties must provide the court the same cooperation and compliance that their executive authorities provide their national courts. To ensure that the court is not frustrated before it can begin, full cooperation must be provided in the period before the court determines whether it has jurisdiction and should exercise it. States may not refuse to comply with court orders or requests to provide information or to transfer persons to the court on any of the traditional grounds for refusal in state-to-state cooperation. The court must have the power to determine whether a state has fully complied with court orders and requests and it must determine whether a state or individual may be excused from complying with an order or request.

15. The court should be financed by the regular UN budget, supplemented, under appropriate safeguards for its independence, by the peace-keeping budget and by a voluntary trust fund. The experience of the two ad hocYugoslavia and Rwanda Tribunals demonstrates that an international court must receive stable and adequate financial, human and technical resources to ensure its effective functioning. The independence of the court should not be affected by the method of its financing. Despite current difficulties, the best method over the long-term for providing regular and secure financing is through the regular UN budget, supplemented by the peace-keeping budget and a voluntary trust fund, provided that there are adequate safeguards for the court's independence. The court should not be financed by states parties or by complaining states, as this would discourage ratifications, cripple the court in its early years if a few wealthy states did not ratify the statute, be unreliable over the long-term and lead to domination by wealthy states.

16. There should be no reservations to the statute. The statute must expressly prohibit allreservations. Permitting reservations would defeat the object and purpose of the statute - to bring to justice those responsible for the worst crimes in the world - by allowing states parties to redefine crimes, to add defences not consistent with international law or avoid obligations to cooperate with the court. It would also lead to an unworkable system in which each state would have undertaken a different set of obligations, instead of common international commitments.

ABBREVIATIONS USED IN THIS PAPER

BlaskicProsecutor v. Blaskic, Judgement on the request of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95-14-AR-108 bis (Appeals Chamber), 29 October 1997
court	the permanent international criminal court

Eredemovic	Prosecutor v. Drañen Erdemovic, Judgment, Case No. IT-96-22-A, Appeals Chamber, 7 October 1997

Fourth Geneva Convention	Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949

Genocide Convention	Convention for the Prevention and Punishment of the Crime of Genocide

Geneva Conventions	The four Geneva Conventions of August 12, 1949

Hague Regulations	Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention (IV) Respecting the Laws and Customs of War on Land of 1907

ICCPR	International Covenant on Civil and Political Rights

ILC, followed by a number	Article of ILC draft statute, as modified by the Preparatory Committee in 1997

ILC draft statute	draft statute for a permanent international criminal court adopted by the International Law Commission in July 1994

Preparatory Committee	Preparatory Committee for the Establishment of an International Criminal Court

drs

Protocol I

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts
Protocol II	Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts

regulations	regulations of the court

rules	rules of procedure and evidence

Rwanda Tribunal	International Criminal Tribunal for Rwanda

SDT, followed by a number	Article of Secretariat Draft Text of final clauses

Third Geneva Convention	Geneva Convention Relative to the Protection of Prisoners of War of August 12, 1949

UN	United Nations

Yugoslavia Tribunal	International Criminal Tribunal for the former Yugoslavia

Zutphen text	draft consolidated text prepared at meeting of Bureau and chairs of working groups and informal drafting groups of Preparatory Committee in Zutphen, The Netherlands from 19 to 30 January 1998

INTRODUCTION

''The Special Rapporteur believes that the following measures could be taken to combat the problem of impunity . . . . establishment of a permanent international criminal court, with universal jurisdiction over mass violations of human rights and humanitarian law; such an international criminal court would have to be bestowed with an adequate mandate and sufficient means to enable it to conduct thorough investigations and enforce the implementation of its decisions . . . .''

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights Resolution 1997/61, UN Doc. E/CN.4/1998/68, 23 December 1997

This is the fifth in a series of position papers which Amnesty International has published in support of the establishment of a just, fair and effective permanent international criminal court (court). Copies of all five of these easy-to-use manuals are being provided to decision-makers involved in the drafting of a statute for the court, including all delegates to the five-week diplomatic conference in Rome which opens on 15 June 1998 to adopt the statute. The first four papers in this series addressed topics scheduled to be considered at the four sessions in 1997 and 1998 of the United Nations (UN) Preparatory Committee on the Establishment of an International Criminal Court (Preparatory Committee).

The scope and purpose of Part V. This paper is designed to be read together with the 210-page consolidated text of 116 articles, UN Doc. A/CONF.183/2/Add.1, 14 April 1998, which is available on the NGO Coalition for an International Criminal Court Web Site: <http://www.igc.apc.org/icc>, and which is too long to include as an annex. Nevertheless, sufficient information about the relevant provisions in the consolidated text is provided so that much of the paper should be understandable even without the full consolidated text. When the wording in the consolidated text is unbracketed, it represents a consensus achieved during the course of 15 weeks of negotiations by the Preparatory Committee and, generally, it will be very difficult to have it changed during the diplomatic conference. Similarly, when a crime or a provision has been omitted from the consolidated text entirely, it is unlikely that it could be added to the text during the diplomatic conference. As a general rule, this paper concentrates on making recommendations of matters of greatest concern to Amnesty International, based on the choices in the consolidated text, although where the choices are completely unacceptable under international law or standards or the omissions would seriously interfere with the effectiveness or fairness of the court, alternatives are recommended, either for the statute or a separate instrument elaborated after the adoption of the statute by the preparatory commission or the court.

For reasons of space, the scope of Part Vis largely limited to recommendations for retaining or amending the consolidated text, rather than analysis. However, the sections in Parts I - IVwhere the legal argument in support of these recommendations are located are cited:

The international criminal court: Making the right choices - Part I: Defining the crimes and permissible defences and initiating a prosecution(AI Index: IOR 40/01/97);

The international criminal court: Making the right choices - Part II: Organizing the court and guaranteeing a fair trial(AI Index: IOR 40/11/97);

The international criminal court: Making the right choices - Part III: Ensuring effective state cooperation(AI Index: IOR 40/13/97); and

The international criminal court: Making the right choices - Part IV: Establishing and financing the court and final clauses(AI Index: IOR 40/04/98).

As demonstrated in Parts I-IV, the recommendations are based firmly on a solid foundation of existing international law and standards. In a few cases, where the recommendations may involve to some extent the progressive development of substantive or procedural law, they are based on widely, if not universally, accepted international standards. With respect to some paragraphs, Amnesty International simply describes the relevant legal sources to assist the reader, without making any recommendations.

What is at stake at the diplomatic conference. There has been dramatic progress in the past four years since the International Law Commission completed the work it started half a century ago, and there is now a substantial majority of states from all parts of the world which agree that certain benchmarks must be satisfied if the statute is to establish a just, fair and effective court which will stand the test of time. Nevertheless, dangers lie ahead. Many governments are under pressure to adopt any statute, just so that they can say that the diplomatic conference was a success. Others are ready to compromise on questions of fundamental principle, just so they can persuade a few powerful states - which may not ratify the statute for decades - to sign almost any statute, no matter how weak the court would be. Such a result would be worse than no court at all. As Justice Louise Arbour, the Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda (Yugoslavia and Rwanda Tribunals) declared at the Preparatory Committee on 8 December 1997, the court

''should be strong and well equipped to operate as the authoritative mechanism through which an individual may be deprived of his or her liberty. Should it be a weak and powerless institution, not only will it lack legitimacy, but it will betray the very human rights ideals which will have inspired its creation. In such a case, regardless of the number of ratifications, the Court may be considered a retrograde development as it will not only fail to dispense fair justice, but it may exacerbate the sense of legitimate grievance of the disenfranchised.

In short, I am not persuaded that a weak permanent Court is better than no Court at all.''

Therefore, Amnesty International is asking all governments to pledge to support the 16 fundamental principles for a just, fair and effective international criminal court reproduced at the beginning of this paper, which form the foundation of all its recommendations, and to ensure that there is no compromise whatsoever on these principles under any circumstances.

Some of the many ways some governments are seeking to weaken the court. The number of proposals which some governments are making which would seriously weaken the court are too numerous to list completely here. Nevertheless, Amnesty International is particularly concerned about the following 10 proposals which would make the court an ineffective complement to national courts which are unable or unwilling to bring to justice those responsible for the worst crimes in the world:

TEN WAYS TO WRECK THE COURT

1. Permit the Security Council - or even only one permanent member - to prevent or delay - perhaps indefinitely - an investigation or prosecution of genocide, other crimes against humanity or war crimes when the situation where these crimes are taking place is being considered by the Security Council as a threat to or breach of international peace and security or as a case of aggression.

2. Prevent the prosecutor from investigating or prosecuting cases of genocide, other crimes against humanity or war crimes, based on information from victims or other reliable sources, even after a judicial determination that the court had jurisdiction and the case was admissible, unless the Security Council had referred the situation to the court or a state had made a complaint.

3. Permit states parties to the statute to decide themselves case by case after ratifying the statute to decide whether to consent to the court's jurisdiction.

4. Permit states parties to the statute to refuse to cooperate with the court in transferring suspects or accused to the court or providing information to the court if such cooperation would be contrary to national law or national interest.

5. Make the court's jurisdiction more limited than the universal jurisdiction over genocide, other crimes against humanity and war crimes which states parties now have over these crimes, by requiring that the state which has custody of the suspect or accused (custodial state), the state on whose territory the crime occurred (territorial state), the state of the suspect or accused's nationality, the state of the victim's nationality, the state seeking to extradite the suspect or accused and any other interested state to consent before the court can even start an investigation of one of these crimes.

6. Narrowly define the scope of genocide, other crimes against humanity or war crimes or impose very high thresholds not found in international law before the court could investigate these crimes.

7. Introduce defences to these crimes which are prohibited by international law, such as superior orders or duress, or weaken principles of criminal responsibility, such as superior responsibility.

8. Permit states to prevent an investigation or prosecution of genocide, other crimes against humanity or war crimes by establishing a national truth commission as a substitute or by granting an national amnesty for these crimes under international law.

9. Introduce statutes of limitations for these crimes which would mean that the international community could not investigate or prosecute persons who have successfully evaded justice for a prolonged period of time.

10. Permit reservations to the statute, thus allowing states to pick and choose whichever parts of the statute they wish to implement and undermining the entire structure of the court.

PREAMBLE OF THE STATUTE

The Preamble, which is an integral part of the statute, must state the reasons which motivated the international community to establish a permanent international criminal court, the purposes the court is to fulfil and the principles which should guide the court in fulfilling its purposes. It should do so in a way which inspires international support for the court and gives hope to victims and their families that the court will play a decisive role in securing international justice in all parts of the world in the same way that the Preamble of the UN Charter gave hope to millions that the new organization would ''save succeeding generations from the scourge of war'', which twice in their lifetime had ''brought untold sorrow to mankind'', and has inspired international civil servants from all parts of the globe to dedicate themselves to fulfilling the purposes of the UN. The Preamble of the statute of the permanent international criminal court must, therefore,

recognize that in the half century since the trials before the International Military Tribunals at Nuremberg and Tokyo millions of men, women and children have been victims of genocide, other crimes against humanity and war crimes;

acknowledge that the international system of justice, which has relied almost exclusively on national investigations and prosecutions, has largely failed to bring those responsible for these millions of crimes to justice;

further recognize that the experience of the two ad hoctribunals for the former Yugoslavia and Rwanda demonstrates that international criminal courts can be an effective complement to national criminal justice systems when they are unable or unwilling to bring those responsible for these grave crimes under international law to justice and can serve as an inspiration and model to states to fulfil their responsibilities;

decide that a permanent international criminal court is necessary to complement national jurisdictions when they are unable or unwilling to fulfil their duty to bring those responsible for these grave crimes to justice;

determine that a permanent international criminal court is necessary to ensure that victims and their families obtain justice, including full and fair reparations for their injuries and their sorrows; and

determine further that the permanent international criminal court must be independent, must be effective and must ensure that trials satisfy the highest international standards of fairness, so that justice can become a solid foundation for lasting reconciliation and peace.

The current Preamble fails to satisfy these requirements.

PART 1. ESTABLISHMENT OF THE COURT

Article 1 - The Court [Zutphen 1; ILC 1]

The permanent international criminal court should be set up initially by a multilateral treaty. As soon as practicable after establishment, the UN Charter should be amended to make the court a principal judicial organ of the UN. See Part I, I.A.1. Article 1, which is unbracketed, declares that an international criminal court is established ''which shall have the power to bring persons to justice for the most serious crimes of international concern, and which shall be complementary to national criminal jurisdictions'' and states that ''[i]ts jurisdiction and functioning shall be governed by the provisions of this Statute.'' This article spells out certain essential aspects of the court, including the court's power to bring persons to justice, thus excluding state criminal responsibility; the limitation of jurisdiction to ''the most serious crimes of international concern''; the complementary nature of the court's jurisdiction, thus implicitly recognizing that states have the primary duty to bring persons to justice for such crimes; and that its jurisdiction and functioning are governed by the statute. It should be retained unchanged. Making the court a principal organ of the UN should be a priority for any review of the statute pursuant to Article 111. See Part I

plain , I.A.2.

Article 2 - The relationship of the court with the United Nations [Zutphen 2; ILC 2]

The court should be closely linked to the UN, but the statute, the rules and any agreement with the UN should preserve the court's independence. See Part I, I.B. Article 2, which is unbracketed, requires that the court should be brought into a relationship agreement with the UN and implicitly protects its independence from the UN by requiring that the agreement be approved by the states parties and concluded by the president on behalf of the court. It should be kept unchanged.

Article 3 - Seat of the court [Zutphen 3; ILC 3]

The court should have the flexibility to conduct trials in places other than the seat of the court, subject to effective safeguards for the accused. Article 3, providing for the seat of the court (to be decided by the diplomatic conference), does not expressly authorize the court to conduct trials away from the seat, but the third paragraph authorizes the court to ''exercise its powers and functions on the territory of any State Party and, by special agreement, on the territory of any other State'', which would encompass this power, and the power to hold trials away from the seat is authorized in Article 62. Paragraph 2 authorizes the president, with the approval of the states parties, to enter into an agreement with the host state. Article 3, which is unbracketed, should be incorporated into the statute without change.

Article 4 - Status and legal capacity [Zutphen 4; ILC 4]

Article 4 (1), which is unbracketed, states that the court ''is a permanent institution open to states parties in accordance with this Statute'' and that ''[i]t shall act when required to consider a case submitted to it''. The second sentence could be considered somewhat misleading in that it suggests that the court would not have a continuous existence and would not function between the periods when it was actively addressing a case submitted to it. Since the rest of the statute is likely to make clear that one or more of the organs of the court will function at other times (purchasing buildings and supplies, hiring staff, drafting rules, entering into agreements with states, etc.), and that it is likely to act based upon referrals of situations by the Security Council or states and the submission of information by other sources, this wording may be acceptable. Article 4 (2), which also is unbracketed, provides that ''[t]he Court shall have legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.'' This essential paragraph should be kept unchanged.

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW

Article 5 - Crimes within the jurisdiction of the Court [Zutphen 5; ILC 20]

Genocide

The crime of genocide should be within the jurisdiction of the permanent international criminal court. See Part I, III. The statute should incorporate without any change the definition of genocide in the Genocide Convention. Each of the acts prohibited in Article II should be included without change in the definition of genocide in the statute to avoid weakening the definition, delaying adoption of the statute and raising questions concerning the meaning of changed or added provisions. Article II defines genocide for purposes of that treaty as follows:

''In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.''

The unbracketed definition in Article 5 (Crime of genocide) of the consolidated text reproduces the definition in the Genocide Convention exactly and should be retained unchanged. Several attempts to restrict this definition must be rejected. There is no requirement that genocide be part of a state policy or plan. There is no requirement that the aim be the total destruction of the group: ''it suffices if the purpose is to eliminate portions of the population marked by specific racial, religious, national or ethnic features''. Moreover, there is no requirement in the term, ''in part'', that the aim must be the destruction of the whole of a group in a particular geographic region or that the aim must be the destruction of a substantial part of the group. It would also be incorrect to require that the accused have intended to destroy a substantial part of the entire group or even a substantial part of the group in a particular geographic region or town; it is sufficient to impose criminal responsibility for genocide if the accused aimed to destroy a large number of the group in a particular community. Of course, there is no requirement that the accused was able to destroy a large number of the group in the community as long as this was the aim. Footnote 1 in the consolidated text should be deleted or amended accordingly and moved to the separate instrument concerning the elements of the crimes. There should be no requirement, as one state has urged, to demonstrate that ''serious . . . mental harm'' to members of the group targeted for destruction must meet a high threshold unwarranted by the intent of the drafters. Footnote 3, which would permit a defence to acts of genocide based on the ability to cure the mental harm years or decades later, should be deleted and the question of the definition of mental harm should be left to a separate instrument.

Each of the four groups which are protected by the Genocide Convention, national, racial, ethnical and religious, should be included in the definition of genocide in the statute. The term, ''ethnical'', should be retained; it is a term of art inserted to extend the protection of the Convention to a linguistic group and a group where race was not ''the dominating characteristic, which might rather be defined by the whole of its traditions and its cultural heritage''. It certainly includes tribal groups. Many of the acts which constitute genocide under the Convention if committed against individuals who are members of social or political groups would constitute crimes against humanity if committed on a systematic or widespread basis. Indeed, persecution of members of political groups is a crime against humanity.

Another important aspect of the crime of genocide, a crime against humanity, is that it may be committed in time of peace or war. The omission of an express statement to this effect in the consolidated text must be taken to indicate that the drafters thought that it was unnecessary to reproduce Article I of the Genocide Convention, which so provides, here.

The Genocide Convention provides that the following acts are punishable:

''(a) Genocide;

(b) Conspiracy to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.''

As Footnote 4 to the bracketed part of Article 5 (Crime of genocide) listing these acts makes clear, the brackets are primarily because of doubts about the placement of this provision. Each of these acts should be punishable under the statute. If the provision is moved to Part 3 on general principles of criminal law, then these concepts, to the extent that they apply to genocide, should not be weakened.

War crimes

The jurisdiction of the court should include serious violations of humanitarian law in both international and non-international armed conflict. See Part I, V. Serious violations of humanitarian law in international armed conflict include grave breaches of the Geneva Conventions and Additional Protocol I, which are now recognized as war crimes; denials of fundamental guarantees included in Additional Protocol I; the 1907 Hague Convention IV, together with its Regulations; and customary law. In addition, in the light of recent developments in international law and the changing nature of warfare, certain acts which are criminal in international armed conflict also crimes in non-international armed conflict should be within the jurisdiction of the international criminal court. There should be no threshold for war crimes (see discussion of the proposed thresholds at the end of Article 5 (War crimes) below). This paper concentrates on the provisions which are of most direct concern to Amnesty International, although the organization supports the broadest possible jurisdiction over violations of humanitarian law appropriate for international criminal responsibility.

Mental elements of war crimes. To avoid delay in the adoption of the statute, the elements of war crimes should be left to a separate instrument to be drafted by the preparatory commission or court, subject to approval by states parties, and drawing from different national legal systems, as appropriate. However, when the mental element of a crime is expressly incorporated into the text of the statute, the terms should be consistent with the terms used in humanitarian law to ensure that all the prohibited acts are included within the court's jurisdiction and to avoid an entirely new jurisprudence evolving with meanings at complete odds with the intent of the drafters of humanitarian law treaties (see discussion of Articles 23 and 29 below). Article 5 of the consolidated text occasionally includes more restrictive mental elements in the crimes listed than required by humanitarian law. For example, a number of the options use the restrictive term, intentionally, rather than the more inclusive term, wilfully, which encompasses the concepts both of intent and recklessness, but excludes ordinary negligence. The ICRC Commentary to Article 85 of Protocol I (para. 3474) defineswilfullyas follows:

''The accused must have acted consciously and with intent, i.e. with his mind on the act and its consequences, and willing them ('criminal intent' or 'malice aforethought'); this encompasses the concepts of 'wrongful intent' or 'recklessness', viz. The attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences (although failing to take the necessary precautions, particularly failing to seek precise information, constitutes culpable negligence punishable at least by disciplinary sanctions)[.]'' (footnotes omitted)

1. International armed conflicts

A. Grave breaches of the Geneva Conventions. The court should have jurisdiction over grave breaches of the four Geneva Conventions, applicable in international armed conflict. Article 5.A of the draft statute gives the court such jurisdiction. See Part I, V.A.1.

B. Other serious violations of the laws and customs applicable in international armed conflict. The court should have jurisdiction over grave breaches of Protocol I, which are now recognized as war crimes, denials of fundamental guarantees included in Protocol I, the 1907 Hague Convention IV, together with its Regulations, and customary law applicable to international armed conflicts. See Part I, V.A.2. The consolidated text includes many of these violations, but a number of the options seriously limit the scope of the court's jurisdiction over particular violations.

(a) Attacks on civilians. The court's jurisdiction should include violations of the prohibition under humanitarian law of attacks on civilians in international armed conflict, which are defined as a grave breach of Protocol I in Article 85 (3) (a) of that instrument. That provision states that

''the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health:

. . . .

(a) making the civilian population or individual civilians the object of attack[.]''

Option 1 is similar to Article 85 (3) (a) of Protocol I, but falls short in two respects. It requires that the accused have acted intentionallyrather thanwilfully. As stated above, the term wilfullyis broader thanintentionallyas it includesrecklessly. The mental element required should be the same as in Protocol I and Geneva Conventions to ensure that all of the same acts are covered. Option 1 also fails to incorporate the reference to other provisions of Protocol I which clarify the scope of this prohibition. The cross reference to other provisions should be included in the separate instrument defining the elements of the crimes. The limitation to attacks against the civilian population ''as such'' is based on Article 13 (2) of Protocol II and the requirement that the attacks on individual civilians be on those ''not taking direct part in hostilities'' is based on Article 13 (3) of Protocol II and common Article 3 of the Geneva Conventions. Option 2 (no provision) is unacceptable and should be deleted.

(abis) Attacks on civilian objects. The court should have jurisdiction over attacks on or reprisals against civilian objects in international armed conflict, as recognized in Article 52 (1) of Protocol I. That article provides: ''Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.'' Option 1 and the definition of the elements of crimes to be elaborated by the preparatory commission should be consistent with international humanitarian law, including the definitions of civilian objects and military objectives, and with most of the other provisions in Article 5 of the consolidated text, which do not identify the mental element required. Option 2 (no provision) is unacceptable and should be deleted.

The acts prohibited by Option 1 of Article 5.B (a bis) of the consolidated text appear also to be covered by Option 2 of Article 5.B (b) and, therefore, Option 1 could, perhaps, be deleted if Option 2 is included.

(b) Attacks which may cause incidental loss of life or injury to civilians or damage to civilian objects. The court should have jurisdiction over attacks during international armed conflicts which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, which are a grave breach of Protocol I. Article 85 (3) (b) of that instrument provides:

. . . .

(b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii)[.]''

Article 57 (2) (a) (iii) of Protocol I provides:

''With respect to attacks, the following precautions shall be taken:

(a) those who plan or decide upon an attack shall:

(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated[.]''

Option 2 incorporates the prohibitions in both Article 85 (3) (b) and Article 57 (2) (a) (iii) of Protocol I, but falls short in three respects. First, it requires that the accused have acted intentionallyrather than wilfully. As stated above, the term wilfullyis broader than intentionallyas it includes recklessly. The mental element required should be the same as in the Protocol and Geneva Conventions to ensure the same acts are covered. Second, Option 1 also fails to incorporate the reference to other provisions of the Protocol which clarify the scope of this prohibition. The cross reference to other provisions should be included in the separate instrument defining the elements of the crimes. Third, Option 2 also omits the word, indiscriminate. If the omission of this word means thatallattacks which are likely to cause the prohibited effects are covered, then Option 2 will provide greater protection than in Article 85 (3) (b), but if onlyindiscriminateattacks are intended to be covered, then the separate instruments containing the elements of the crimes should include the explanation of the term found in Article 51 of Protocol I. Article 51 (4) of Protocol I prohibitsindiscriminateattacks. Such attacks are:

''(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or

and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.''

Article 51 (5) of Protocol I includes examples of prohibited indiscriminate attacks. Option 1, which would exclude attacks ''justified by military necessity'', without balancing the effects against the ''concrete and direct overall military advantage anticipated'', as required by Article 85 (3) (b), would exclude many acts which grave breaches of Protocol I and it should be deleted. Option 3, which would include all indiscriminate attacks which would be known to cause the prohibited effects, is broader than Article 85 (3) (b), but it is doubtful whether this gain would offset the exclusion of reckless attacks, and it also should be deleted. Option 4 (no provision) is unacceptable and should be deleted.

(b bis) Attacks on works or installations containing dangerous forces. The court should have jurisdiction over attacks during international armed conflicts on works or installations containing dangerous forces, which are defined as a grave breach of Protocol I in Article 85 (3) (c) of that instrument. That provision states that

. . . .

(c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii)[.]''

Article 57 (2) (a) (iii) provides that the following precautions shall be taken with respect to attacks

''(a) those who plan or decide upon an attack shall:

. . . .

Option 1 incorporates the essence of Article 85 (3) (c) of Protocol I, but falls short in two respects. First, it requires that the accused have acted intentionallyrather than wilfully. The mental element required should be the same as in the Protocol and Geneva Conventions to ensure that allthe same acts are covered. Second, Option 1 also fails to incorporate the reference to other provisions of the Protocol which clarify the scope of this prohibition. The cross reference to other provisions should be included in the separate instrument defining the elements of the crimes. Option 2 (no provision) is unacceptable and should be deleted.

(c) Attacks on undefended places. The court should have jurisdiction over attacks during international armed conflicts on all undefended places protected by humanitarian law. Option 1 gives the court jurisdiction over attacks or bombardments prohibited by Article 25 of the Hague Regulations of Hague Convention IV of 1907 (''The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.'') and Article 1 of the 1907 Hague Convention Respecting Bombardment by Naval Forces in Time of War, which contains a similar prohibition. Option 2 gives the court jurisdiction over attacks prohibited by Articles 59 (1) (which reiterates the prohibition of Article 25 of the Hague Regulations) and 60 (which protects zones demilitarized by agreement) of Protocol I. Although Option 1 probably is broad enough to include most of what is covered in Option 2, it should be possible to combine the two options for maximum protection.

(d) Killing or wounding combatants who have surrendered. The court should have jurisdiction over the killing or wounding of combatants during international armed conflicts who have become hors de combat, which are prohibited as a matter of customary law and which could amount to extrajudicial executions or to torture. Article 23 (c) of the Hague Regulations provides that ''it is especially forbidden - . . . (c) to kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion[.]'' Similarly, Article 4 of the Third Geneva Convention provides that persons protected by that convention will be treated humanely when they ''have fallen into the power of the enemy''. To avoid any possible gap in protection between the moment a combatant becomes hors de combatand falls into the power of the enemy, Article 41 of Protocol I was adopted. It provides that ''[a] person who is recognized or who, in the circumstances, should be recognized to be hors de combatshall not be made the object of attack[,]'' and lists a number of factors which can be taken into account in determining whether a person is hors de combat. Article 5.B (d), which is without brackets, should be retained, although it would have been better to have adopted the approach in Article 41 of Protocol I to clarify that there was no possible gap in protection.

(e) Improper use of flags, insignia, uniforms or emblems of Geneva Conventions. Article 23 (f) of the Hague Regulations provides that ''it is especially forbidden: . . . (f) To make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention''. Article 85 (3) (f) of Protocol I defines some of these acts as a grave breach when they are committed in violation of the relevant provisions of the protocol and result in death or serious injury: ''the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol''. Article 37 (1) of Protocol I covers, in more detail, the other prohibitions of perfidy in Article 23 (f) of the Hague Regulations and expands protection to cover perfidious use of emblems of the UN or neutrals. Article 5.B (e) of the consolidated text gives the court jurisdiction over those responsible for ''making improper use of the flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury''. This article appears to include most of the acts prohibited by Article 23 (f) of the Hague Regulations and Articles 37 and 85 (3) (f) of Protocol I, but it would appear to exclude those expressly protected only by the emblems of Protocol I.

(f) Transfers of population and deportation. The court should have jurisdiction over transfers of local population and deportations during international armed conflicts of persons protected by the Geneva Conventions and Protocol I which are prohibited by international law. Article 45 of the Fourth Geneva Convention provides in part: ''Protected persons shall not be transferred to a Power which is not a party to the Convention. . . . In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.'' Article 49 of the Fourth Geneva Convention provides in part: ''Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.'' Article 147 of the Fourth Geneva Convention provides that the ''unlawful deportation or transfer . . . of a protected person'' (referring to Articles 45 and 49 of that convention) is a grave breach of that convention. Article 85 (4) (a) of Protocol I expands the scope of this grave breach to include transfers by the occupier of parts of its own population into occupied territory, when committed wilfully and in violation of the Geneva Conventions or Protocol I.

Option 2, which gives the court jurisdiction over those responsible for ''the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory'', appears to cover all the acts prohibited by Articles 49 and 147 of the Fourth Geneva Convention and should be retained unchanged. Option 1 addresses only the transfer by the occupier of its own population into the occupied territory and, therefore, is unacceptable. Option 3 is the same as Option 2, except that it replaces the wording of Article 85 (4) (a) of Protocol I with a prohibition of ''the establishment of settlers in an occupied territory and changes to the demographic composition of an occupied territory''. Option 4 (no provision) is unacceptable and should be deleted.

(g) Attacks on cultural buildings and medical facilities. As a way to increase the protection of civilians, the court should have jurisdiction over attacks on certain cultural buildings and medical facilities during international armed conflicts. Article 27 of the Hague Regulations provides in part: ''In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.'' Article 5 of the Hague Convention of 18 October 1907 Concerning Bombardment by Naval Forces in Time of War (Hague Convention No. 9) contains an almost identical list. Article 56 of the Hague Regulations protects educational institutions from seizure, destruction or wilful damage. Article 85 (4) (d) of Protocol I supplements these prohibitions with respect to certain cultural buildings which have received special protection by special arrangement.

Articles 19 to 23 and 35 to 44 of the First Geneva Convention set forth detailed rules concerning the protection of hospital ships, hospitals, hospital zones and other medical facilities; Articles 12 to 45 of the Second Geneva Convention provides similar, but more detailed protection of various medical facilities; and Articles 14 to 22 of the Fourth Geneva Convention have rules concerning the protection of various medical facilities. Articles 12 to 31 of Protocol I protect medical vehicles, hospital ships and coastal rescue craft, other medical ships and craft and medical aircraft.

Option 1 of Article 5.B (g) of the consolidated text appears to protect all of the places protected by Article 27 of the Hague Regulations, Article 5 of Hague Convention No. 9, and the relevant articles of the Geneva Conventions and Protocol I. Option 2, which is identical, except that it provides greater protection than Option 1 by adding buildings dedicated to education, is preferable.

(h) Physical mutilation and unjustified medical or scientific experiments. The court should have jurisdiction over physical mutilation and unjustified medical experiments during international armed conflict. Article 11 of Protocol I provides detailed rules prohibiting such treatment. Article 5.B (h) of the consolidated text, which is unbracketed, gives the court jurisdiction over anyone responsible for ''subjecting persons who are in the power of an adverse Party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his interest, and which cause death to or seriously endanger the health of such person or persons''. Although it is much shorter and general than Article 11 of Protocol I, it appears to cover all the prohibited acts and should be retained unchanged.

(i) Killing or treacherously wounding individuals belonging to the adversary. The court should have jurisdiction over those who kill or treacherously wound individuals who belong to the adversary. Article 23 (b) of the Hague Regulations provides that ''it is especially forbidden: . . . (b) To kill or wound treacherously individuals belonging to the hostile nation or army''. Article 5.B (i) of the consolidated text, which is unbracketed, adequately covers this prohibition, which in certain circumstances could amount to an extrajudicial execution or torture, by giving the court jurisdiction over those responsible for ''killing or wounding treacherously individuals belonging to the hostile nation or army'', and it should be kept unchanged.

(j) Declaring that no quarter will be given. The court should have jurisdiction over persons who declare that no quarter shall be given. Article 23 (d) of the Hague Regulations provides that ''it is especially forbidden - . . . (d) To declare that no quarter will be given[.]'' Article 40 of Protocol I, which confirms this rule of customary law, states: ''It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.'' Article 5.B (j) of the consolidated text, which is unbracketed, contains almost identical wording to Article 23 (d) of the Hague Regulations and should be retained, although it might have been better to use the contemporary language of Article 40 of Protocol I.

(k) Unjustified destruction or seizure of enemy property. The court should have jurisdiction over the unjustified destruction of a house or other dwelling and its contents. Article 23 (g) of the Hague Regulations provides that ''it is especially forbidden: . . . (g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war''. Article 5.B (j) of the consolidated draft text, which is unbracketed, adequately covers these acts by giving the court jurisdiction over those responsible for ''destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war'', and it should be retained without change.

(l) Abolishing or suspending legal rights of nationals of the adversary. The court should have jurisdiction over the suspension of the rights of nationals of the adversary. Article 23 (h) of the Hague Regulations provides that ''it is especially forbidden: . . . (h) To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party''. Article 5.B.(l) of the consolidated text, which is unbracketed, adequately covers these acts by giving the court jurisdiction over those responsible for ''declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party'', and it should be left as it is.

(m) Compelling nationals of the adversary to fight against their own country. The court should have jurisdiction over the compulsion of persons to fight against their own country. The final paragraph of Article 23 of the Hague Regulations provides that ''[a] belligerent is . . . forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war.'' Article 5.B (m) of the consolidated text, which is unbracketed, contains an almost identical provision, and it should be kept as is..

(n) Pillaging. Article 28 of the Hague Regulations provides that ''[t]he pillage of a town or place, even when taken by assault, is prohibited.'' Article 5.B (n) of the consolidated text gives the court jurisdiction over such acts.

(o) Employment of prohibited weapons.Article 5.B (o) of the consolidated text contains four options giving the court jurisdiction over the employment of prohibited weapons. Option 1, which contains a prohibition of the employment of a list of five types of weapons ''which are calculated to cause superfluous injury or unnecessary suffering'', is based on a translation error in the English version of Article 23 (e) of the 1907 Hague Regulations. In the authentic French text, the term is ''propres à causer des maux superflus'', which should be translated as ''of a nature to cause superfluous injury'', and provides far more effective protection. Option 2 prohibits the employment of a list of five types of prohibited weapons ''which are of a nature to cause superfluous injury or unnecessary suffering'', as in the Hague Regulations, and ''such other weapons or weapons systems as become the subject of a comprehensive prohibition pursuant to customary or conventional international law''. Option 3 prohibits generally, without a specific exhaustive or illustrative list of prohibited weapons, the employment of ''weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate''. Option 4 contains two alternatives, Option 3 or a provision identical to Option 2, except that it adds three prohibited weapons (nuclear weapons, anti-personnel mines and blinding laser weapons) to the list of prohibited weapons.

(p) Outrages upon personal dignity. The court should have jurisdiction over outrages upon personal dignity, in particular humiliating and degrading treatment. Common Article 3 of the Geneva Conventions, which reflects customary law, prohibits in Section 1, paragraph (c), ''outrages upon personal dignity, in particular humiliating and degrading treatment''. This principle has been expressly recognized as applying to international armed conflict in Articles 75 (2) (b) and 85 (4) (c) of Protocol I, with additional prohibitions concerning enforced prostitution and indecent assault and apartheidand similar practices based on racial discrimination. Option 1 contains the exact wording of common Article 3 (1) (c) of the Geneva Conventions, without the additional prohibitions, which appear in another section (see Article 5.B (p bis) below) and in a separate option in this section. The additional prohibitions in Option 2, if retained, should be placed in a separate provision.

(p bis) Rape and other sexual abuse. The court should have jurisdiction over rape, enforced prostitution and other sexual abuse, and these should be contained in a separate section from the prohibition in Article 5.B (p) of outrages upon personal dignity to make clear that they are crimes of sexual and gender violence. Article 75 (2) (b) of Protocol I, which is one of the fundamental guarantees of that instrument, prohibits ''enforced prostitution and any form of indecent assault'', but it appears to list them as outrages upon personal dignity rather than as sexual and gender violence. It states that ''[t]he following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: . . . (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault[.]'' Similarly, Article 76 of Protocol I classifies rape and forced prostitution as forms of indecent assault rather than crimes of sexual and gender violence: ''Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.''

Article 5.B (p bis) of the consolidated text gives the court jurisdiction over those ''committing 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''. The wording of the prohibitions of rape, sexual slavery, enforced prostitution and enforced sterilization poses no problem and, given the history of such abuses during the Second World War and international armed conflicts throughout history, it should not prove difficult to spell out the elements of these crimes in a separate instrument. However, Paragraph 132 of the 1995 Beijing Platform for Action uses the term, ''forced pregnancy'' in the English text, rather than ''enforced pregnancy'', and there may be advantages to use a term which reflects an international consensus and has a generally accepted meaning. Although each of the specified acts in Paragraph (p bis) would amount to a grave breach of the Geneva Conventions, either as torture or inhuman treatment, including biological experiments, or as wilfully causing great suffering or serious injury to body or health, there seems little reason to restrict the acts covered to those committed against the specific classes of protected persons under the Geneva Conventions, thus excluding additional classes of protected persons under Protocol I. The current wording in English (the language in which this section was drafted) of the phrase ''also constituting a grave breach of the Geneva Conventions'' appears to apply to both the list of specified acts and to ''any other form of sexual violence''. If the purpose of this phrase was to ensure that persons could also be charged under the grave breaches provisions in Article 5.A, then this intention should be made clear, perhaps in a separate sentence. If the purpose was only to restrict the scope of the court's jurisdiction of ''any other form of sexual violence'' to acts which would also constitute a grave breach of the Geneva Conventions, then the language is too restrictive, since it excludes certain classes of persons protected by Protocol I. Since the concept of ''any other form of sexual violence'', as reflected in the UN Declaration on the Elimination of Violence against Women, is potentially much broader than the concept of grave breaches under either the Geneva Conventions or Protocol I, the elements of the crime will have to be spelled out carefully in the separate instrument adopted after the diplomatic conference.

The definitions of rape and other sexual abuse in Article 5.B (p bis), concerning international armed conflict, in Article 5.D (e bis), concerning non-international armed conflict, and in Article 5 (Crimes against Humanity) (1) (g), which applies in peace as well as during armed conflict, should cover the same acts.

(q) Using civilians to immunize places or forces from military operations. Article 28 of the Fourth Geneva Convention states: ''The presence of a protected person may not be used to render certain points or areas immune from military operations.'' Article 28 (1) of Protocol I prohibits the use of the presence of medical aircraft to render military objectives immune from attack) and Article 57 (1) of that protocol provides that ''[i]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.'' Article 5.B (q) of the consolidated text, giving the court jurisdiction over persons responsible for ''utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations'', appears to covers most of these prohibited acts.

(r) Attacks on places and persons protected by the Geneva Convention emblems. Attacks on places and persons protected by the Geneva Conventions and Protocol I should be within the court's jurisdiction. Article 12 (1) of Protocol I sets out the basic principle that ''[m]edical units shall be respected and protected at all times and shall not be the object of attack'', which is spelled out in more detail in the rest of that article and in Article 13 to 31 of Protocol I, as well as in Article 19 of the First Geneva Convention and Article 18 of the Fourth Geneva Convention. Article 5.B (r) of the consolidated text gives the court jurisdiction over those responsible for ''intentionally directing attacks against buildings, material, medical units and transport, and personnel using, in conformity with international law, the distinctive emblems of the Geneva Conventions'', thus excluding from protection those places and persons protected only by Protocol I.

(s) Starvation of civilians as a method of warfare. The court should have jurisdiction over starvation of civilians as a method of warfare during international armed conflicts, which can amount to extrajudicial execution. Article 54 (1) of Protocol I states: ''Starvation of civilians as a method of warfare is prohibited.''. Article 54 (2) provides that ''it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population'', then listing examples of prohibited acts. Article 23 of the Fourth Geneva Convention requires each party to the conflict to ''allow the free passage of all consignments of medical and hospital stores . . . . intended only for civilians'', and spells out detailed rules concerning such shipments; it also requires that each party ''shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases''. Article 5.B (s) of the consolidated text provides that the court has jurisdiction over persons ''intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions''. The relevant provisions include articles 53 and 59 to 62 of the Fourth Geneva Convention. It appears adequately to cover most of the situations envisaged in Article 54 of Protocol I and Article 23, 53 and 59 to 62 of the Fourth Geneva Convention, and should be retained. However, it would have been better to refer as well to Articles 68 to 71 of Protocol I, which also address relief supplies.

(t) Recruiting children or using them to participate actively in hostilities. The court should have jurisdiction over the recruitment of children under the age of 15 years into armed forces or using them to participate actively in hostilities. Both the recruitment of children under the age of 15 and the use of them in hostilities violate humanitarian law and almost universally accepted human rights law. Article 77 (2) of Protocol I provides in part: ''The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.'' Similarly, Article 38 (2) of the Convention on the Rights of the Child, ratified by all but two states in the world, provides: ''States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.'' Article 38 (3) of that treaty provides in part: ''States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces.'' Option 2, covering ''recruiting children under the age of fifteen years into armed forces or using them to participate actively in hostilities'', as the drafters made clear in the note to this option, adequately ''incorporate[s] the essential principles contained under accepted international law while using language suitable for individual criminal responsibility as opposed to State responsibility''. The note explains:

''The words 'using' and 'participate' have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase o[r] the use of domestic staff in an officer's married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology.''

Neither Option 1 (''forcing children under the age of fifteen years to take direct part in hostilities'') nor Option 3 (recruiting children under 15 or ''allowing them to take part in hostilities'') adequately reflects the prohibitions in humanitarian and human rights law. Option 4 (no provision) is also unacceptable and should be deleted. In the future, as international law evolves, the recruitment of persons under 18 years of age into armed forces and using them to participate actively in hostilities should be included in the court's jurisdiction as a war crime.

2. Non-international armed conflicts

The court should have jurisdiction over violations of humanitarian law during non-international armed conflict, including violations of common Article 3 of the Geneva Conventions and Protocol II, and that jurisdiction should include violations of most humanitarian law prohibitions traditionally applicable to international armed conflict, such as the 1907 Hague Convention IV and its Regulations. See Part I, V.B.

Option I - Threshold.There is no threshold required before common Article 3 of the Geneva Conventions applies and, therefore, there should be none in the statute. It incorporates some of the fundamental principles applicable at all times, as recognized in the Martens clause a century ago, which is now incorporated in each of the four Geneva Conventions (stating that denunciation ''shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience''). As the ICRC Commentary to common Article 3 recognized in rejecting the view that this article was ''not applicable in cases where armed strife breaks out in a country'' but does not fulfil a number of conditions distinguishing ''a genuine armed conflict from a mere act of banditry or an unorganized and short-lived insurrection'', ''the Article should be applied as widely as possible''. The ICRC Commentary explained that common Article 3

''merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and enacted in the municipal law of the States in question, long before the Convention was signed. What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that Article 3 not being applicable, it was entitled to leave the wounded uncared for, to inflict torture and mutilations and to take hostages?''

Option I of the consolidated text provides that Sections C (incorporating much of common Article 3) and D (which incorporates a number of provisions based upon Protocol II, as well as standards which traditionally applied in international armed conflicts) ''apply to armed conflicts not of an international character and thus do not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature''. To the extent that this threshold applies to Section C, it should be deleted as contrary to the intent of the drafters of common Article 3.

C. Common Article 3 of the Geneva Conventions

The court should have jurisdiction over all violations of common Article 3, not just ''serious violations'' of that article, as provided in Article 5.C of the consolidated text. This would be consistent with the jurisdiction of the Rwanda Tribunal, under Article 4 of its statute and the Yugoslavia Tribunal, under Article 3 of its statute (as recognized in the 1995 decision of the Appeals Chamber in Tadiƒ). The court's jurisdiction is already limited to serious crimes of concern to the international community as a whole and, under Article 11 (1) (d) of the consolidated text, cases which are not of ''sufficient gravity'' are not admissible. There should be no double hurdle of seriousness to overcome. Article 5.C of the consolidated text also omits Sub-paragraph 2 of common Article 3, requiring that ''[t]he wounded and sick shall be collected and cared for'', a duty expressly recognized as early as 1864 in the first Geneva Convention. As the ICRC Commentary stated, ''What Government would dare to claim before the world . . . that . . . it was entitled to leave the wounded uncared for[?]'' ''[S]ince'', as the ICRC Commentary explains, ''the obligation to collect and care for the wounded and sick is absolute and unconditional, any act incompatible with the duty imposed by that obligation is prohibited''. Therefore, Article 5.C should be amended to give the court jurisdiction over this war crime.

D. Other serious violations of humanitarian law

(a) Attacks on civilians. The court should have jurisdiction over the same types of attacks on civilians in non-international armed conflict as in international armed conflict. Article 13 of Protocol II provides that in all circumstances, ''[t]he civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.'' Option 1, which is identical to Option 1 in Article 5.B (a), has the same strengths and weaknesses as that article and should be amended accordingly. Option 2 (no provision) is unacceptable and should be deleted.

(b) Attacks on places and persons protected by the Geneva Convention emblems. The court should have jurisdiction over attacks on places and persons protected by the protected by the Geneva Conventions and Protocols. Article 5.D (b) is identical to Article 5.B (r), applicable to international armed conflict. By limiting the protection during non-international armed conflict to places and persons protected by the Geneva Emblems, it excludes from protection those persons protected only by Protocol II. Article 5.D (b) should be amended to include places and persons protected by Protocol II.

(c) Attacks on cultural places and medical facilities. As a way of increasing the protection of civilians, the court should have jurisdiction over the same types of attacks on cultural places and medical facilities in non-international armed conflict as in international armed conflict.Option 1 of Article 5.D (c) is identical to Option 1 of Article 5.B (g), applicable to international armed conflict. Option 2 of Article 5.D (c) is identical to Option 2 of Article 5.B (g), which gives greater protection by including educational institutions, and should be retained unchanged.

(d) Pillaging. Article 5.D (d) is identical to Article 5.B (n).

(e) Outrages upon personal dignity. The court should have jurisdiction over the same types of outrages upon personal dignity in non-international armed conflict as in international armed conflict. Article 5.D (e) is identical to Article 5.C (b), which is based on the prohibition in common Article 3 (b) of the Geneva Conventions and Article 4 (2) of Protocol II (see Part I,V.B.2), and could be deleted here, as long as it is retained in Article 5.C (b) and as long as the double requirement of seriousness is deleted from that provision (see discussion above of Article 5.C).

(e bis) Rape and other sexual abuse. The court should have the same jurisdiction over rapes and sexual abuse in non-international armed conflict as it does in international armed conflict. Article 5.D (e bis) is identical to Article 5.B (p bis), except that instead of requiring the acts listed also constitute ''a grave breach of the Geneva Conventions'', it requires that they also constitute ''a serious violation of article 3 common to the Geneva Conventions''. This added requirement not only poses the same problems as the limitations in Article 5.B (p bis), but it also states that the violation of common Article 3 must be ''serious''. This article should be amended along the lines suggested for Article 5.B (p bis).

(f) Recruiting or using children to participate actively in hostilities. The court should have jurisdiction over the same type of recruitment and use of children in non-international armed conflict as in international armed conflict.Option 2 of Article 5.D (f) is identical to Option 2 of Article 5.B (t), which applies to international armed conflict, except that it adds a prohibition of the recruitment of children under the age of 15 into ''groups'', since some of the parties to non-international armed conflict are not regular armed forces. It should be retained unchanged, for the reasons explained above in the discussion of Article 5.B (t). The other options, like their counterparts in Article 5.B (t), should be deleted.

(g) Ordering displacement of the civilian population. The court should have jurisdiction over the same type of displacement and deportations of civilians in non-international armed conflict as in international armed conflict. Article 17 (1) of Protocol II, which prohibits the displacement of civilians as individuals or groups within the territory of a state, provides in part that ''[t]he displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand.'' Article 17 (2) of Protocol II, which prohibits compelling them to move beyond the national boundaries or other territories, such as the territory within a country under the control of insurgents, provides that ''[c]ivilians shall not be compelled to leave their own territory for reasons connected to the conflict.'' Article 5.D (g) only expressly covers internal displacement of civilians. It would be better to add the prohibition on compelled departure of civilians from their own territory, although any such forced departure would inevitably involve internal displacement as a first step.

(h) killing or wounding treacherously a combatant adversary. The court should have jurisdiction over killing and wounding treacherously combatant adversaries in non-international armed conflicts as in international armed conflicts. Article 5.D (h) is identical to Article 5.B (l), which applies to international armed conflict, except that it protects ''a combatant adversary'', rather than ''individuals belonging to the hostile nation or army''. It should be retained unchanged.

(i) Declaring that no quarter will be given. The court should have jurisdiction over persons who declare that no quarter shall be given during a non-international armed conflict, just as in an international armed conflict. Article 4 (1) of Protocol I prohibits ordering that there shall be no survivors. Article 5.D (I) is identical to Article 5.B (j), which applies to international armed conflict, and it should be kept unchanged.

(j) Physical mutilation and unjustified medical or scientific experiments. The court should have jurisdiction over the same type of physical mutilation and unjustified medical experiments in non-international armed conflicts as in international armed conflicts. Article 5.D (j) is identical to Article 5.B (h), which applies to international armed conflict, except that it uses the phrase ''in the power of another Party to the conflict'' rather than ''in the power of an adverse Party''. This provision should be retained, but the terms used should be the same in both articles.

(k) Unjustified destruction or seizing of the property of an adversary. The court should have jurisdiction over the unjustified destruction or seizure of the property of an adversary in non-international armed conflicts as in international armed conflicts. Article 5.D (k) is identical to Article 5.B (k), which applies to international armed conflict, except that it uses the term ''property of an adversary'' instead of ''the enemy's property'' and the term ''necessities of the conflict'' instead of ''necessities of war'', both apparently to reflect the different type of conflicts involved. This provision should be retained unchanged.

(l) Employment of prohibited weapons. Article 5.D (l) is the counterpart of Article 5.B (o), applicable to international armed conflict, and its wording will depend on the outcome of the discussions of that provision.

Option II. Additional prohibitions.

The scope of protection of humanitarian law in non-international armed conflict should be as broad as possible and incorporate as many of the prohibitions of humanitarian law applicable which now apply to international armed conflict. The court should have jurisdiction over such violations. A number of serious violations of humanitarian law applicable to international armed conflict, as well as some applicable to non-international armed conflict, have been omitted from Option I, several of which are indicated below.

Starvation of civilians as a method of warfare. The court should have jurisdiction over starvation of civilians as a method of warfare in non-international armed conflicts as in international armed conflicts. The paragraph giving the court jurisdiction over the intentional use of starvation of civilians as a method of warfare, using the language of Article 5.B (s), applicable to international armed conflict, should be included in the statute. See Part I, V.B.2.

Attacks causing incidental loss of life or injury to civilians. The court should have the same jurisdiction over attacks causing incidental loss of life or injury to civilians in non-international armed conflicts as in international armed conflicts. The paragraph giving the court jurisdiction over attacks likely to cause incidental loss of life or injury to civilians or damage to civilian objects, which is modelled on Option 3 in Article 5.B (b), applicable to international armed conflict, has all the flaws of that option, as discussed above, and should be replaced by Option 2 of that article, subject to the amendments indicated above.

Attacks against works or installations containing dangerous forces. The court should have the same jurisdiction over attacks on works or installations containing dangerous forces during non-international armed conflicts as in international armed conflicts. The paragraph giving the court jurisdiction over attacks against works or installations containing dangerous forces, which is identical to Option 1 of Article 5.B (b bis), applicable to international armed conflict, with the same flaws, and should be amended accordingly.

Slavery and the slave trade. The court should have jurisdiction over enslavement in both non-international and international armed conflicts. Enslavement is a crime against humanity (see discussion below), but if crimes against humanity are limited to those directed against a civilian population, then enslavement of captured combatants during a non-international armed conflict would not be within the court's jurisdiction. Article 4 (f) of Protocol II prohibits ''slavery and the slave trade in all their forms''. See Part I, V.B.2. The proposed paragraph at the end of Article 5.D uses exactly the same language and should be included.

Option III - Deletion of threshold to Sections C and D. As indicated above, the threshold, to the extent it applies to Section C, which partially incorporates common Article 3 to the Geneva Conventions, should be deleted. Consideration should be given to deleting the threshold with respect to other violations of humanitarian law applicable to non-international armed conflict.

Option IV - Deletion of Section D. This provision is unacceptable and should be omitted.

Option V - Deletion of Sections C and D. This provision is unacceptable and should be omitted.

Thresholds for war crimes. As stated above, Options 1 and 2 should be deleted, as provided in Option 3. There are no such thresholds in humanitarian law and the jurisdiction of the court is already restricted in Article 11 (1) (d) to cases of ''sufficient gravity''.

Article Y - No limiting effect on existing or developing rules of international law. This article, which provides that ''nothing in this part of the Statute shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law'', is an essential provision. It will ensure that the failure of the statute to give the court the full extent of possible jurisdiction over a core crime will not be seen as an international consensus that the more limited jurisdictional definition is a definition of the crime itself under international law.

Crimes against humanity

Other crimes against humanity besides genocide should be included in the inherent jurisdiction of the permanent international criminal court. See Part I, IV. The jurisdictional definition should include the following acts when committed on a systematic basis orlarge scale and directed against a civilian population: murder; extermination; ''disappearances''; torture; rape; enforced prostitution and other sexual abuse; arbitrary deportation and forcible transfers of population; arbitrary imprisonment; enslavement; persecution on political, racial, religious or other grounds and other inhumane acts.

1. Threshold and common elements. The definition should make clear that, like genocide, other crimes against humanity are independent of other crimes under international law and can be committed in time of peace as well as armed conflict. See Part I, IV.K. Since these crimes can be committed by non-state actors, such as armed opposition groups or even by private individuals, there is no requirement that they be committed as part of a state policy or plan. See Part I, IV. The intent requirement must be the same at every level in the hierarchy of the state or other group to ensure that all those responsible for these grave crimes are brought to justice. See Part I, IV.

The inhumane acts must be aimed at a civilian population, but it need not aim at the entire civilian population in a particular country, region or community. They may be committed against anycivilian population. See Part I, IV. Indeed, there is an increasingly widespread view that the population targeted can include persons who are not civilians, such as former combatants, including prisoners of war. There is no requirement under international law that the inhumane acts be motivated by an intent to discriminate on political, racial, religious or other grounds, unless the crime of persecution is involved. Jurisdiction should cover inhumane acts which are either committed on a systematic oron a widespread basis. There should be no cumulative requirement that the inhumane acts be committed on botha systematic anda widespread basis, as this would unduly restrict the scope of the court's jurisdiction.

Amnesty International preferred the term, ''large scale'', used by the International Law Commission in its draft Code of Crimes against the Peace and Security of Mankind, to ''widespread''. The International Law Commission in its commentary to the Code has defined ''large scale'' to mean that ''the acts are directed against a multiplicity of victims. This requirement excludes an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single victim.'' It explained that this term replaced ''mass scale'' in the first reading of the draft Code of Crimes in 1991 because ''large scale'' was ''sufficiently broad to cover various situations involving a multiplicity of victims, for example, as a result of the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude.''

It is essential to define the terms, ''systematic'' and ''widespread'', which are used in the consolidated text, properly. The International Law Commission has explained that ''systematic manner'' means ''pursuant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts. The thrust of this requirement is to exclude a random act which was not committed as part of a broader plan or policy.'' Thus, ''systematic'' crimes would include the case of a military or police unit obeying a decision by the commander to murder each person in a town or village or each person from a particular group in that town or village. A suggestion by one state to define ''systematic'' as involving an attack against a civilian population which constitutes or is part of, consistent with or in furtherance of, a policy or concerted plan, or repeated practice over a period of time, as advocated by one state, would be far too restrictive, and must be rejected. ''Widespread'' crimes would include murders committed in various parts of a particular geographic region, but not necessarily throughout an entire province or district. A proposal by one state to define ''widespread'' as involving an attack against a civilian population which is massive in nature and directed against a large number of individuals would be far too restrictive and must be rejected.

The jurisdictional definition must cover both state and non-state actors, including members of armed opposition groups and individuals acting at the direction of state officials or members of political groups or with their consent or acquiescence, to ensure that the court will have jurisdiction over the widespread crimes against humanity being committed around the world by non-state actors.

The definition of the intent required must be the same at all levels of the hierarchy in the state, organization or group to ensure that both those who commit the inhumane acts, as in the Erdemoviccase, and those who planned and ordered the crimes, are subject to international criminal responsibility.

(a) Murder. The crime of murder, when committed on a systematic or widespread basis, is a crime against humanity which should be included within the jurisdiction of the court. See Part I, IV.A. For the difference between murder and extermination, see discussion in the following section on extermination. The definition of murder in the statute (or in the separate instrument on elements of crimes) should cover extrajudicial executions, which are ''unlawful and deliberate killings, carried out by order of a government or with its complicity or acquiescence''. Extrajudicial executions can be distinguished from other killings. An extrajudicial execution is a deliberate killing, not an accidental one. It is unlawful. It violates national laws, such as those which prohibit murder, or international standards prohibiting the arbitrary deprivation of life, such as the International Covenant on Civil and Political Rights (ICCPR), the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms. Reference to international standards is essential when national law falls short of such norms or, as in the case of Nazi Germany, national law itself authorizes such killings. The unlawfulness of extrajudicial executions distinguish them from justifiable killings in self-defence, deaths resulting from the use of reasonable force in law enforcement, killings in armed conflict which are not forbidden under international law and the use of the death penalty when imposed in conformity with international procedural and substantive standards. Extrajudicial executions can be distinguished from killings which are in violation of an enforced official policy because they are carried out by order of a government or with its complicity or acquiescence. Thus, an extrajudicial execution is, in effect, a murder committed or condoned by the state.

Murders which constitute crimes against humanity also include deliberate and arbitrary killings by armed political groups committed on a widespread or systematic basis. Such killings are deliberate, not accidental. They are arbitrary in that they are not countenanced by any internationally recognized standard of law. They contravene fundamental standards of humane behaviour - as reflected in the Martens clause - such as national criminal laws prohibiting murder, international humanitarian law and international human rights standards. Their arbitrary character distinguishes them from killings in self-defence or the defence of others from an immediate threat, and from killings in armed conflict which may occur as a consequence of an attack or a defence of a military objective, such as killings in the course of clashes between violent opposing forces, killings in cross-fire or attacks in general on military and security personnel. They are committed on the authority of an armed political group and in accordance with its policy at some level deliberately to eliminate specific individuals, or groupings or categories of individuals, or to allow those under its authority to commit such abuses. Deliberate and arbitrary killings can be distinguished from killings for private reasons, which are shown, for example, through preventive measures and disciplinary action, to have been the acts of individuals in violation of higher orders.

There is no definition of murder in Article 5 (Crimes against humanity) (1) (a) of the consolidated text, but this definition could be incorporated in the separate instrument defining the elements of the crimes.

(b) Extermination. It goes without saying that the crime of extermination should be within the jurisdiction of the court. See Part I, IV.B.The International Law Commission has explained the difference between murder and extermination as follows:

''Extermination is a crime which by its very nature is directed against a group of individuals. In addition, the act of extermination involves an element of mass destruction which is not required for murder. In this regard, extermination is closely related to the crime of genocide in that both crimes are directed against a large number of victims. However, the crime of extermination would apply to situations that differ from those covered by the crime of genocide. Extermination covers situations in which a group of individuals who do not share any common characteristics are killed. It also applies to situations in which some members of a group are killed while others are spared.''

Section 2 (a) of Article 5 (Crimes against humanity) in the consolidated text, which provides that extermination includes the wilful or intentional ''infliction of conditions of life calculated to bring about the destruction of part of a population'' appears to be merely an illustration of one type of extermination, rather than a definition, and the term intentional is too restrictive as it would exclude reckless acts, which are sufficient to constitute a grave breach when committed during an international armed conflict. The definition, whether included in the statute or in a separate instrument, should be consistent with the International Law Commission explanation and the mental element required should be the same as required for a grave breach.

(c) Enslavement. The crime of enslavement, when committed on a widespread or systematic basis, should be within the jurisdiction of the international criminal court. See Part I, IV.H. It is closely related to the crime of arbitrary imprisonment in that it may include detention of political prisoners without charge or trial, often because of such factors as the nationality, race, language or religion of the persons detained. Persons detained on such grounds may also in certain circumstances be considered prisoners of conscience. Section 2 of Article 5 (Crimes against humanity) does not include a definition of enslavement. The definition, whether included in the statute or in a separate instrument elaborated after the diplomatic conference, should be based upon the definitions in the Slavery Convention of 1926 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956.

(d) Deportation or forcible transfer of population. The court should have jurisdiction over deportation across national frontiers and forcible transfers of populations within national borders; it should also have jurisdiction over refoulement to countries where they are at risk. See Part I, IV.F.

The prohibition of deportation should at a minimum include the systematic or widespread arbitrary exile of persons from their own country. Such a prohibition would include forced population transfers or exchanges carried out without the free consent of the individuals affected. Moreover, it should be clear that this prohibition extends not only to formal measures taken to deport people from their own country (for example, de-nationalization coupled with an organized and forced departure), but also to the carrying out of acts of terror and intimidation which are clearly intended to sow fear and panic among sections of the population to compel them to leave their own country.

In addition to prohibitions on forcing people out of their own country, the statute should criminalize the systematic or widespread forcible relocation of people within the borders of their own country, when this is done for reasons of their race, religion, language, ethnic or social origin, or political opinion. If the prohibition is limited to deportation across an international frontier, it might omit to cover situations where in an ''internal'' conflict one or more secessionist groups in a state forces members of a particular ethnic group out of the area of the state they aim to carve out as their own. The prohibition in such situations should cover both formal and informal measures of forced relocation.

A third violation of the right to freedom of movement that should be covered by the statute is the refoulement(forcible return) of people to countries where their lives, security or freedom are at risk. When such a policy is pursued on a systematic or widespread basis it should be a crime against humanity. The transfer of a person protected by the Fourth Geneva Convention ''to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs'' is prohibited by Article 45 of that convention and defined as a grave breach of that convention in Article 147.

(e) Arbitrary detention. The systematic or widespread prolonged detention of political prisoners without a fair and prompt trial in accordance with international standards and their detention after unfair trials, as well as detention of prisoners of conscience, amounts to a crime against humanity which the court should have power to address. See Part I, IV.G. This crime is, of course, limited to arbitraryimprisonment, that is, without due process of law or in violation of fundamental rights. Indeed, the draft Code of Crimes uses the term ''arbitrary imprisonment''. The term ''imprisonment'' necessarily includes all forms of detention, not just detention in prison after a trial, although this could be made more clear by using the word, ''detention'', instead. The International Law Commission has explained that the concept of arbitrary imprisonment in the draft Code of Crimes ''would cover systematic or large-scale instances of arbitrary imprisonment such as concentration camps or detention camps or other forms of long-term detention''. Arbitrary detention is a violation of human rights law and standards, including the Universal Declaration of Human Rights and the ICCPR. The UN Working Group on Arbitrary Detention has further defined the concept of arbitrary detention in its consideration of individual cases.

(f) Torture. The systematic or widespread practice of torture is a crime against humanity which should be within the jurisdiction of the international criminal court. See Part I, IV.D. The definition of torture in the statute (or in a separate instrument defining the elements of crimes) should be based on, but not limited to, the definition of torture in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture):

''For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from or incidental to lawful sanctions.''

The definition should include torture committed by armed political groups on a systematic or widespread basis. The bracketed options in the proposed definition of torture in Section 2 (c) of Article 5 (Crimes against humanity), requiring that the victim be either in the custody or physical control of the accused or deprived of liberty, may be too restrictive and the concept of ''lawful sanctions'' under the Convention against Torture means ''in conformity with international law'', so this phrase in brackets would simply reinforce the existing guarantee.

(g) Rape, enforced prostitution or other sexual abuse. Rape, enforced prostitution and certain other sexual abuse when committed on a systematic or widespread basis should be within the court's jurisdiction. Rape of detainees by government officials or by armed opposition groups on a systematic or widespread basis is a crime against humanity. See Part I, IV.E. Rape in such circumstances is also a form of torture, but because of its unique characteristics it also deserves being identified as a separate crime against humanity. Enforced prostitution on a systematic or widespread basis when government officials or armed opposition groups force detainees to carry out such conduct should also be considered as a crime against humanity which should be within the court's jurisdiction. Some forms of other sexual abuse of detainees by government officials or armed opposition groups committed on a systematic or widespread basis may amount to crimes against humanity. The acts of sexual and gender violence which amount to crimes against humanity should be the same as those which constitute violations of humanitarian law (see discussion of Article 5.B (p bis) and 5.D (e bis) above).

(h) Persecution on political, racial, national or other grounds. The international criminal court should have jurisdiction over systematic or widespread persecution on political, racial and religious, as well as other, grounds, as a crime against humanity. See Part I, IV.I. The International Law Commission included ethnic grounds as one of the prohibited grounds in the draft Code and in its commentary on the draft Code noted that persecution on gender grounds could also constitute a crime against humanity. The court should have jurisdiction over persecution on the broadest possible number of prohibited grounds. Persecution on political, racial or religious grounds has long been recognized as a separate crime against humanity, independent of the other crimes, such as murder, extermination and ''disappearances''. Therefore, the bracketed language requiring that the persecution be ''in connection with other crimes within the jurisdiction of the Court'' should be deleted. The crime of persecution is a crime against individuals on prohibited grounds, such as political, racial or religious grounds, not against an ''identifiable group or collectivity'', so this language should be amended accordingly. The suggested requirement in Section 2 (d) that ''persecution means the wilful and severe deprivation of fundamental rights contrary to international law'' should be clarified in a separate instrument on the elements of crimes. There is no reason to impose a specific intent to persecute on specified grounds, as suggested in this provision; this would simply extend the high and difficult to meet threshold which exists in the Genocide Convention to crimes against humanity, with all the problems that entails.

(i) Enforced disappearance of persons. The crime of forced disappearance of persons on a systematic or widespread basis should be expressly recognized as a crime against humanity within the jurisdiction of the international criminal court. See Part I, IV.C. Although ''disappearance'' falls squarely within the category ''other inhumane acts'' which are recognized as crimes against humanity, it deserves to be expressly defined as a crime against humanity to send a clear signal to those who commit this crime of the determination of the international community to bring them to justice wherever they may be found. The definition of the crime of forced disappearance of persons in the statute (or in the separate instrument defining the elements of the crimes) should be consistent with the definition approved by the UN General Assembly in the Preamble of its Declaration on the Protection of All Persons from Enforced Disappearance, which refers to enforced disappearances of persons occurring in many countries

''in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, thereby placing such persons outside the protection of the law.''

The proposed definition in Section 2 (e) of Article 5 (Crimes against humanity), although it is similar to the definition in the UN Declaration, differs in at least one important respect by omitting the concept of ''otherwise deprived of their liberty'', which is designed to ensure that no method of ''disappearance'' escapes international criminal responsibility.

(j) Other inhumane acts. The category of ''other inhumane acts'' committed on a systematic or widespread basis ensures that new forms of crime against humanity which are developed will not escape international criminal responsibility and it should be included in the statute. See Part I, IV.J. The suggested addition, ''of a similar character'', would ensure that the definition was consistent with the principle, nullum crimen sine lege, without unduly restricting its scope. The proposal that the other inhumane acts also cause either great suffering or serious injury to body or to mental or physical health could be one way to ensure consistency with this fundamental principle. However, this particular standard might have excluded certain well-recognized crimes against humanity, such as arbitrary imprisonment.

The International Law Commission has suggested several criteria for determining other inhumane acts amount to crimes against humanity. Article 18 (k) of the draft Code of Crimes covers ''other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm''. The International Law Commission stated that only acts ''similar in gravity'' to other crimes against humanity would be included. The Secretary-General in his analysis of the Nuremberg Judgment in his 1993 report to the Security Council on the proposed Yugoslavia Tribunal suggested that depriving part of the civilian population of the means of subsistence might be such another inhumane act. Although the approach of the International Law Commission has merit, care will have to be taken in defining this criteria to ensure that it covers all acts which should be subject to international criminal responsibility in a manner which is fully consistent with the principle of nullum crimen sine lege.

Other crimes

Amnesty International takes no position concerning whether other crimes under international law should be included within the court's jurisdiction when it is first established. In the future, the statute should be amended pursuant to Articles 110 or 111 to provide that the court has jurisdiction over crimes of torture and other grave human rights violations and abuses not amounting to genocide, other crimes against humanity or war crimes.

Article 6 - [Exercise of jurisdiction] [Preconditions to the exercise of jurisdiction] [Zutphen 6; ILC 23, 25]

The court should have the same universal jurisdiction which any state party has over the core crimes under international law. Thus, it should have inherent (automatic) jurisdiction over each of these core crimes, so that the court can exercise concurrent jurisdiction with respect to each state party in appropriate circumstances. The statute should provide that the court may exercise its inherent (automatic) jurisdiction with respect to the three core crimes - genocide, other crimes against humanity and serious violations of humanitarian law - if the prosecutor initiates an investigation of the crimes based information from any reliable source or referrals of a situation by a state party or by the Security Council acting pursuant to Chapter VII of the UN Charter. See Part I, II.B. Article 6 contains a number of terms or requirements which would unacceptable, including the use of ''matter'' (suggesting individual cases, rather than situations, could be referred, leading to politically selective justice); the requirement that a complaint be lodged by more than one state (decreasing the already limited likelihood of a state referral) and state consent requirements (requiring the consent ofanystate with jurisdiction, meaning everystate, since the core crimes are crimes of universal jurisdiction). This heavily bracketed article should be deleted and replaced by the further option for Article 6.

Further option for Article 6. The further option for Article 6, provides that ''[t]he 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 situation has been referred to it by a state party pursuant to Article 11, the prosecutor has initiated an investigation in accordance with Article 12 or a situation has been referred by the Security Council. This further option incorporates the above fundamental principles (although the references to Article 12 may need to be modified if it is replaced by the compromise Article 13) and should be adopted, but without any brackets.

[Article 7] - Preconditions to the exercise of jurisdiction [Zutphen 7; ILC 21 bis]

At the time a state ratifies or accedes to the statute it should consent to the court's jurisdiction over the core crimes in all cases and thereby agree to cooperate with the court, including to comply with court orders and requests. There should be no further preconditions for the exercise of jurisdiction in the form of further consent by states parties on a case-by-case or any other basis. Since it is uncontested that each of the three core crimes is a crime of universal jurisdiction, permitting anystate to bring to justice those responsible for such crimes without the need for consent by any other state, see Part I, II.B, it necessarily follows that each state party may consent to the court exercising that universal jurisdiction without the need for the consent of any other state, including states which are not parties to the statute. Under current international law, there is no need for consent to an investigation and prosecution of genocide, other crimes against humanity or war crimes by the custodial state, the state on whose territory the crime occurred (territorial state), the state of the victim's nationality, the state of the suspect or accused's nationality, the state seeking extradition from the investigating or prosecuting state or any other interested state. Therefore, none of the preconditions in the various options in Article 7 are required under international law, and the entire article should be deleted.

Further option for Article 7. For much the same reasons, the further option to Article 7 is unacceptable and should also be deleted. Paragraph 2 (a) would mean that the court would not have jurisdiction if a person suspected of committing genocide by ordering the killing of 10,000 members of a religious group in the territory of a state party were to travel to a state party where the suspect was held in custody until just before a referralbut then fled to a non-state party or unknown location, or even fled after a referralbut before the court could ruleon whether the case was admissible under Article 15. In each case, however, the custodial state would have had been able to exercise its universal jurisdiction to bring the suspect to justice had it been able or willing to do so.

Paragraph 2 (b), requiring the additional consent of the territorial state (whose officials might well be implicated in the crimes) before the court could exercise jurisdiction, would also be a step backwards for international justice. For example, assume a general suspected of grave breaches of the Geneva Conventions for ordering the killing of 10,000 prisoners of war in the territory of a non-state party has fled to a small neighbouring state party. This state might take the general into custody, pursuant to its universal jurisdiction over grave breaches. However, the leaders of custodial state might then realize that it did not have sufficient resources to ensure the safety of the general and victims and witnesses and to pay for the general's defence and they might also decide not to bring the general to justice because of overwhelming military, political or economic pressure from the neighbouring territorial state. Under Paragraph 2 (b), the court would not be able to exercise the same universal jurisdiction over the general as the small, underdeveloped and threatened custodial state. Therefore, the further option for Article 7 would prevent the court from being an effective complement to national criminal jurisdictions.

[Article 8] - Temporal jurisdiction [Zutphen 8; 21 ter]

Limiting the jurisdiction of the court to crimes committed after the entry into force of the statute, as provided in the unbracketed Article 8 (1) of the consolidated text will avoid criticisms of the court, similar to those made concerning the International Military Tribunals at Nuremberg and Tokyo, alleging that it was violating the fundamental principle of legality (nullum crimen sine lege). Nevertheless, since the adoption of the statute will constitute recognition that the core crimes within the court's jurisdiction are crimes under customary law or reflect general principles of international law, there is no further need to provide, as in the bracketed second paragraph of Article 8 (1), that when states become parties to the statute after it enters into force the court will not have jurisdiction over crimes committed by or against its nationals or on its territory before the date the statute enters into force for that state. Moreover, since the core crimes are crimes of universal jurisdiction, every single state would be able to bring to justice the nationals of the new state party or those who committed these crimes on its territory to justice regardless of their nationality even before the statute entered into force for the new state party. Therefore, the court should have jurisdiction over all crimes committed after the entry into force of the statute no matter where they were committed and no matter what was the nationality of the accused or victim.

[Article 9] - Acceptance of the jurisdiction of the Court [Zutphen 9; ILC 22]

The court should have inherent (automatic) jurisdiction, concurrent with states, over the core crimes of genocide, other crimes against humanity and war crimes. See Part I, II.B. Thus, when a state becomes a party to the statute it accepts the jurisdiction of the court over these crimes, as provided in the first paragraph of Option 1 or in paragraph 1 of the further option (see below). The à la carteor opt-in system envisaged for the three core crimesin Option 2 is unacceptable. However, an opt-in system of some sort (such as that in Paragraph 2 of Option 1) is reasonable fornon-core crimes, since it is unlikely that all states parties would agree to the court's jurisdiction over these crimes and many of these crimes, unlike the core crimes, are not crimes of universal jurisdiction. The provisions for cooperation by non-states parties in Paragraph 3 of Option 1 and Paragraph 4 of Option 2 are completely unacceptable. They incorporate the severe restrictions in Article 7 on the court's jurisdiction, which would make the court an ineffective complement to national criminal jurisdictions. Instead of permitting the court to exercise the same universal jurisdiction as any of its states parties, Article 7, as explained above, requires the consent of the custodial state, the territorial state, the state of the victim's nationality and the state of the suspect or accused's nationality.

Further option to Article 9. Paragraph 1 provides that ''[a] State which becomes a Party to the Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5 [paragraphs (a) to (d)]'' (genocide, aggression, crimes against humanity and war crimes). This further option fully satisfies the principle of universal jurisdiction. See Part I, II.B. As the proponent of this further option explained,

''Under current international law, all States may exerciseuniversalcriminal jurisdictionconcerning acts of genocide, crimes against humanity and war crimes, regardless of the nationality of the offender, the nationality of the victims and the place where the crime was committed. This means that, in a given case of genocide, crime against humanity or war crimes, each and every State can exercise its own national criminal jurisdiction, regardless of whether the custodial State, the territorial State or any other State has consented to the exercise of such jurisdiction beforehand. This is confirmed by extensive practice.'' The jurisdiction of the International Criminal Court: An informal discussion paper submitted by Germany, UN Doc. A/AC.249/1998/DP.2, 23 March 1998 (emphasis in original; footnote concerning aggression omitted).

Indeed, not a single state publicly argued during the 1997-1998 sessions of the Preparatory Committee that international law prohibited states from exercising universal jurisdiction over the core crimes. Therefore, the proponent of this further option added,

''Given this background, there is no reason why the ICC - established on the basis of a Treaty concluded by the largest number of States - should not be in the very same position to exercise universal jurisdiction for genocide, crimes against humanity and war crimes in the same manner as the Contracting Parties themselves. By ratifying the Statute of the ICC, the States Parties accept in an official and formal manner that the ICC can also exercise criminal jurisdiction with regard to these core crimes. This means that, like the Contracting States, the ICC should be competent to prosecute persons which have committed one of these core crimes, regardless of whether the territorial State, the custodial State or any other State has accepted the jurisdiction of the Court.'' Id.

Paragraph 2 of the further option provides for non-states parties, which are not expressly obliged under the statute to cooperate with the court, even if core crimes were committed in their territories or by one of their nationals, to ''accept the obligation to cooperate with the Court with respect to the prosecution of any crime referred to in article 5" by lodging a declaration with the Registrar. Such a provision would facilitate cooperation by non-state parties with the court in bringing to justice those responsible for the worst crimes in the world.

[Article 10] - [[Action by] [Role of] The Security Council] [Relationship between the Security Council and the International Criminal Court] [Zutphen 10; ILC 23]

The Security Council should be able to refer a situation, but not an individual matter or case, where one or more core crimes may have occurred and which involves a threat to or breach of international peace and security pursuant to Chapter VII of the UN Charter to the court. The heavily bracketed Article 10 (1) should be amended to make this clear. See Part I, VIII.C.Article 10 (1 bis) and (1 ter) on the modalities of notification and decision should be deleted. Amnesty International takes no position on Article 10 (2), or Paragraph 1 of the further option to Article 10, concerning the core crime of aggression.

Further option to Article 10. Amnesty International takes no position on Paragraph 1 of further option 10 on aggression. Paragraph 2 of the Further Option for Article 10 should be deleted. Even a 12-month, one-time delay by the Security Council of an investigation or prosecution would be contrary to the international law obligation to bring to justice those responsible for genocide, other crimes against humanity and war crimes.

Article 11. Complaint by State [Zutphen 6; 21]

A state should be able to refer a situation - although this situation should not be limited to a situation involving a threat to or breach of international peace and security - to the court. As long as the prosecutor has the power to initiate investigations and prosecutions based on information from other sources than referrals by the Security Council or state complaints, subject to appropriate judicial scrutiny, then states should not have the power to refer individual cases. The further option for Article 11, discussed below, is, with the suggested amendments, preferable to the current text of Article 11.

Further option for Article 11. Paragraph 1 of the further option Article 11, providing that ''[a] State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed, requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes'', is consistent with this principle, but this paragraph must make clear that the state cannot limit the referral to include crimes committed by only one side to a conflict in a situation, as in the proposal for an ad hocinternational criminal tribunal for Cambodia, or restrict the nationality of those who can be investigated and prosecuted, as in the Statute of the Rwanda Tribunal. The prosecutor must be free to investigate all persons who may be responsible for crimes within the court's jurisdiction in a situation. Indeed, the danger that states can insulate persons from international criminal responsibility by selective referrals demonstrates the need for the prosecutor to be able to initiate investigations on his or her own initiative, subject to appropriate judicial scrutiny. Paragraph 2, concerning the information which should accompany the state complaint, is a useful provision, provided that it does not become the basis for declaring that the court lacks jurisdiction or that cases investigated are inadmissible because the referral did not submit all the information the state could have done with more diligence.

[Article 12]. Prosecutor [Zutphen 46; ILC 25 bis]

''For the proposed court to have international credibility and legitimacy, it will be essential for an international prosecutor to be able independently to initiate indictments of suspected perpetrators of crimes within the court's jurisdiction. If such indictments were left to the decision of a political body, such as the Security Council, this could not but call into question the impartiality of international justice.''

Report of the Special Rapporteur on torture, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights Resolution 1997/38, para. 226

The prosecutor should be able to initiate investigations in any case where the court has jurisdiction, even in the absence of a referral by the Security Council or a state complaint, based on information from any source and to submit an indictment to the court. The current heavily bracketed text of Article 12 contains the essence of this fundamental principle, but it should be revised to provide that the prosecutor may (rather than ''shall'', to preserve prosecutorial independence) initiate investigations on his or her own motion (proprio motu) based on information obtained from any source, including victims and their families, or persons acting on their behalf, governments, intergovernmental organizations and non-governmental organizations. It should be for the prosecutor to determine whether the sources are reliable. See Part I, VIII.A.

[Article 13]. Information submitted to the Prosecutor [new]

Article 13 is an improvement over Article 12 in implementing this fundamental principle by spelling out the procedure for prosecutorial review of the information received, providing that the prosecutor may seek additional information, defining the role of the pre-trial chamber in authorizing an investigation based on a judicial determination that ''there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court'' and guaranteeing a role for victims in the proceedings. Article 13 also permits the prosecutor to make a subsequent request, based on new information, to the pre-trial chamber for authorization to conduct an investigation. The prosecutor is also required to inform the source of the information if the prosecutor determines that there was no reasonable basis for an investigation. Article 13, which provides appropriate judicial scrutiny to ensure that there will be no abuse by the prosecutor of his or her authority, should be incorporated without any change in the statute.

Further option for articles 6, 7, 10 and 11 [new]. Each of these options is discussed above under the relevant article number.

Article 14. Duty of the Court as to jurisdiction [Zutphen 12; ILC 24]

This principle, as the note indicates, is reflected in Article 17 (1), and, therefore, Article 14 could be deleted.

Article 15. Issues of admissibility [Zutphen 11; ILC 35]

States have the primary duty to bring those responsible for grave crimes under international law to justice, but the court must be able to act as an effective complement to states when they are unable or unwilling to fulfil this duty. The court must have the power to determine whether to exercise its concurrent jurisdiction in such cases. The agreement on the unbracketed text of Article 15 was one of the great achievements of the August 1997 session of the Preparatory Committee. Despite the disclaimer at the beginning of this article that the text ''represents a possible way to address the issue of complementarity and is without prejudice to the views of any delegation'', it represented the agreement of an overwhelming number of delegates at that session and no delegation has publicly sought to reject this compromise. Any attempt by a government to weaken Article 15 could endanger agreement on the rest of the consolidated text and cause the diplomatic conference to fail. The only changes which could be safely made to the text would be those which clarify some of the ambiguities mentioned in the footnotes, although it would be preferable if any ambiguities were resolved in other ways than reopening the agreed text of Article 15 (see discussion of amnesties for genocide, crimes against humanity and war crimes below).

States should not be able to shield those responsible for the worst crimes imaginable from international justice by pardons, amnesties or similar measures which prevent the emergence of the truth and subsequent accountability before the law. There should not be the slightest doubt that a nationalamnesty law or pardon which prevents the emergence of the truth and those responsible being brought to justice cannot prevent the internationalcriminal court from bringing those responsible for genocide, other crimes against humanity and war crimes to justice. As the UN Special Rapporteur for torture stated in his most recent report, he was

''aware of suggestions according to which nationally granted amnesties could be introduced as a bar to the proposed court's jurisdiction. He considers any such move subversive not just of the project at hand, but of international legality in general. It would gravely undermine the purpose of the proposed court, by permitting States to legislate their nationals out of the jurisdiction of the court. It would undermine international legality, because it is axiomatic that States may not invoke their own law to avoid their obligations under international law. Since international law requires States to penalize the types of crime contemplated in the draft statute of the court in general, and torture in particular, and to bring perpetrators to justice, the amnesties in question are, ipso facto, violations of the concerned States' obligations to bring violators to justice. Any such proposed move would be to turn things on their head, allowing national law to dictate international legal obligation.'' Report of the Special Rapporteur on torture, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights resolution 1997/38, UN Doc. E/CN.4/1998/38, 24 December 1997, para. 228.

Footnote 42 to this article indicates that some delegations thought that Article 15 ''should also address, directly or indirectly, cases in which there was a prosecution resulting in conviction or acquittal, as well as discontinuance of prosecutions and possibly also pardons and amnesties'' and suggested that Article 18 (ne bis in idem), as then worded, did not adequately address this matter. However, nothing in Article 15 would prevent the court from exercising its concurrent jurisdiction when a state granted an amnesty, pardon or similiar relief for genocide, crimes against humanity or war crimes before a final judgment. As the UN Special Rapporteur on torture has explained, such nationalmeasures which prevent the emergence of the truth and accountability before the law would violate internationallaw. No state which is serious about international justice for the worst crimes in the world could give such measures any legitimacy whatsoever. They would negate the very purpose of the court and make the establishment of the court a futility. Article 19 would address the problems of post-judgment amnesties, pardons and similar measures by expressly authorizing the court to try someone who had been tried by another court ''if a manifestly unfounded decision on the suspension of the enforcement of a sentence or on a pardon, a parole or commutation of the sentence excludes the application of any appropriate form of penalty''.

[Article 16]. Preliminary rulings regarding admissibility [new]

To ensure that the prosecutor is able to conduct investigations to determine whether there is sufficient information to seek an indictment and to arrest the accused pursuant to that indictment before it is made public, state challenges to the jurisdiction or admissibility of a case should be permitted only after the indictment has been approved and the accused arrested, unless the court otherwise decides. This article, which is entirely in brackets, would permit states to challenge the admissibility of any investigations concerning a situation beforethe prosecutor could start an investigation and prevent the prosecutor from conducting such investigations pending the result of these state challenges. There are serious flaws with this proposal which must be corrected if it is to be included in any form in the statute. Paragraph 1 provides that once a matter(which could, as the International Law Commission made clear in its commentary on the ILC draft statute, in contrast to a situation, be a single case) had been referred to the court by one of the three possible trigger mechanisms in Article 6 (Security Council referral, state complaint or the prosecutor acting on his or her own initiative (proprio motu) and the prosecutor had determined that there was sufficient basis to proceed, the prosecutor would have to make the referral known by public announcement and by notification to all states parties. This public announcement and, in some cases, the notice to states alone, could alert suspects to the investigation, leading to the concealment and destruction of evidence, the intimidation or murder of witnesses and the flight of the suspects. The advantages of the use of sealed indictments in the former Yugoslavia to effect arrests was widely recognized by states, including permanent members of the Security Council.

Under Paragraph 2, within an unspecified number of daysafter the announcement, a state, including a non-state party, could inform the court that it was investigating its own nationals or others within its jurisdiction with respect to the matter. At the request of that state, the prosecutor would be obliged to ''defer to the State's investigation of such persons unless the Prosecutor determines that there has been a total or partial collapse of the State's national judicial system, or the State is unwilling or unable genuinely to carry out the investigation and prosecutions''. This wording is different from the detailed list of factors which the court is to examine pursuant to a determination of admissibility under Article 15. However, before the prosecutor could commence an investigation after he or she made such a determination, the prosecutor would have to obtain a preliminary ruling by the pre-trial chamber confirming the determination. Paragraph 2 would place the burden to demonstrate that the existence of the above factors on the prosecutor, instead of the state, which would be best placed to provide the relevant information since most of it would be in the possession of the state. Despite the demonstrated need for prompt investigation and prosecution of crime, if the prosecutor deferred to the state investigation, he or she would be prohibited under Paragraph 2 from reviewing this determination for a period of six monthsor, possibly, one yearafter that deferral even if information came to the prosecutor's attention that the state was unable or unwilling to investigate or prosecute. Thus, the requirement in Paragraph 4 that states parties have to respond ''without undue delay'' to requests to keep the prosecutor informed concerning the status of the state's investigation would be of limited value.

If, instead of deciding initially to defer to the state investigation, the prosecutor determined that he or she should commence an investigation, under Paragraph 3 the prosecutor would have to seek permission to do so from the pre-trial chamber confirming that determination. Even if the pre-trial chamber confirmed the prosecutor's determination to open one or more investigations, he or she could not do so until the appeal chamber decided an appeal by a state of the pre-trial chamber confirmation. This paragraph would require the appeals chamber, in contrast to decisions confirming or reversing a judgment of guilt which requires only a simple majority, a unanimous decisionor a two-thirds majority. All appeals should be decided by a simple majority. A statecould appeal a pre-trial chamber decision confirming the prosecutor's determination to open and investigation; the prosecutorcould not do so. If the state can appeal, then the interests of international justice would require allowing the prosecutor to do so as well. Paragraph 5 would give states get a thirdbite at the apple in being able to challenge the admissibility yet again pursuant to Article 17, despite the intention of that article to limit states to onechallenge before trial to admissibility. Permitting repeated state challenges to the admissibility of cases could only undermine the authority of the court and slow down the work of the court, contrary to the fundamental principle that justice delayed is justice denied. There seems to be little in the lengthy, complicated and unfair proceedings required in Article 16 which would help make the court an effective complement to national jurisdictions. The state's ability to ensure appropriate judicial review over the prosecutor's decision that the court had jurisdiction and that cases would be admissible are adequately protected by Article 13, requiring preliminary judicial review of the prosecutor's decision to open an investigation, and Article 17, which permits one pre-trial challenge to jurisdiction and admissibility by the state and other challenges by the accused.

Article 17. Challenges to the jurisdiction of the Court or the admissibility of a case [Zutphen 12; ILC 36]

Suspects who have been arrested on a pre-indictment arrest warrant and the accused should be able to challenge the jurisdiction of the court or the admissibility of a case at any stage of the proceedings, and states should be able to make such challenges only once after the arrest of the suspect or accused and before trial. Paragraph 1 (a), which requires the court to satisfy itself that it has jurisdiction at every stage of the proceedings should be included in the statute, since the court cannot act at all without jurisdiction (except to determine whether it has jurisdiction or not). Paragraph 1 (b), however, which permits the court to determine the admissibility of a case on its own motion pursuant to Article 15 at any stage of the proceedings, may pose problems. Once a determination has been made that the case is admissible and proceedings are under way, the court should not be under pressure throughout the proceedings from states belatedly claiming that they could conduct the proceedings. This problem does not appear to be addressed adequately in Paragraph 3 (see discussion below). Paragraph 2 (a), which permits the suspect or accused to challenge the jurisdiction of the court, should be amended to limit challenges by suspects to those who have been arrested pursuant to a pre-indictment arrest warrant, otherwise this would frustrate the very purposes of such pre-indictment arrest warrants - to prevent flight. Paragraph 2 (b), which contains a number of options, should be amended to limit state challenges to jurisdiction and admissibility to challenges made afterarrest to ensure that the court can issue sealed warrants to arrest suspects and sealed indictments which will permit it to apprehend the accused. State challenges after that date will fully address state concerns, since if the state can demonstrate that the court lacks jurisdiction or that the case is inadmissible because it is able and willing to conduct a prompt, vigorous, thorough and fair investigation, then the suspect or accused and any evidence seized can be transferred to the state. The limitation in Paragraph 3 of state challenges to the admissibility of a case to one challenge before trial is essential to ensure that states cannot repeatedly disrupt or delay proceedings by such challenges. The various exceptions proposed to this rule in this paragraph should be rejected. However, the accused should be able to raise challenges to jurisdiction at any time, since the court itself must satisfy itself at any stage of the proceedings that it has jurisdiction. Paragraph 4, requiring states to challenge admissibility at the earliest possible opportunity, be amended to provide that such challenges should be made at the earliest possible opportunity after an arrest. The allocation of hearing challenges between the pre-trial and trial chambers in Paragraph 5 appears satisfactory.

Article 18. Ne bis in idem[Zutphen 13; ILC 42]

The fundamental principle of ne bis in idem, which prohibits the retrial of a person in the same jurisdiction for a crime he or she committed, should be reflected in the statute. That principle, however, applies only to retrials by the samejurisdiction, and the statute must ensure that the court has the power to retry persons who have been tried by national courts in proceedings which were designed to frustrate justice by shielding the person from criminal responsibility for core crimes or were otherwise unfair. Article 18 (1), which is unbracketed, incorporates this principle by prohibiting the international criminal court itself from retrying a person for conduct which formed the basis of the crimes for which the person had been acquitted or convicted, but a footnote would weaken this prohibition by subjecting it to Article 83 (see discussion below of that article). Article 18 (2), which is unbracketed, prohibits the retrial of a person before another court for a crimewithin the international criminal court's jurisdiction ''for which that person has already been convicted or acquitted by the Court''. This provision would permit a national court to try a police chief for actswhich constituted murder under national law who had been acquitted by the international criminal court of committing and inciting genocide who killed several hundred people in a village over a decade because they were members of a different political party or social class, not because of a genocidal intent, and acquitted of murder as a crime against humanity, because there was insufficient admissible evidence in that particular case that the killings were systematic or widespread. Since the international criminal court will not have jurisdiction over crimes under national law, Article 18 (2) would ensure that a person who commits a crime under national law does not escape criminal responsibility simply because the prosecutor was unable to prove beyond a reasonable doubt that the acts constituted a core crime.

Article 18 (3), which is unbracketed, facilitates the international criminal court's ability to

act as an effective complement to national courts when they are unable or unwilling to bring

persons to justice for core crimes. It provides that

''[n]o person who has been tried by another court for conduct also proscribed under article 5 [listing the crimes within the international criminal court's jurisdiction] shall be tried by the Court unless the proceedings in the other court:

. . . .

(a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) otherwise were not conducted independently or impartially and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.'' (footnotes omitted).

Nevertheless, there are at least two problems with the wording of this provision, which are also found in Article 15 (2) (a) and (c). Article 18 (3) (a), by requiring a ''purpose'' to shield a person from criminal responsibility, would not cover proceedings where a prosecutor, acting in good faith, was unable to secure a conviction because the court, in practice, lacked the powers to seize evidence or compel witnesses to testify, for example, because of unsettled conditions in the country. Article 18 (3) (b), by requiring that the proceedings be ''conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person to justice'', could - unless the ''intent'' is read to include those outside the proceedings - fail to address the situation where the trial could not be conducted independently or impartially because of threats to the prosecutor, the judges, lawyers, victims and witnesses, directly or indirectly, by others. Moreover, there is a danger that the terms ''independently'' and ''impartially'' could be read so narrowly as to exclude cases where the independence of the prosecutors and judges were not threatened and they acted impartially, but the procedures fell far short of international standards for a fair trial.

As suggested in a footnote, additional provisions, consistent with the limited scope of the principle of ne bis in idem, should be considered. For example, should not the court be able to retry a person who killed 500 people and was convicted in a national court of manslaughter, for which the maximum sentence is much shorter than for genocide,? After the conclusion of the trials before the International Military Tribunals at Nuremberg and Tokyo, there were a series of national trials where those responsible for mass murders or employment of slave labour were convicted of less serious offences carrying derisory punishments. Of course, the alternative approach at the end of Article 18, which would preclude the international criminal court from exercising its concurrent jurisdiction in anycase where a national court was exercising or had exercised jurisdiction, is unacceptable and should be deleted.

Article 19 [new]

Article 19 is designed to ensure that the court can be an effective complement to national jurisdictions which are unable or unwilling to enforce a sentence of a national court for a core crime by permitting the court to try a person sentenced in such a case ''if a manifestly unfounded decision on the suspension of the enforcement of a sentence or on a pardon, a parole or a commutation of the sentence excludes the application of any appropriate form of penalty''.

Article 20. Applicable law [Zutphen 14; ILC 33]

The unbracketed text of Article 20 (a) and (b) providing that the court should apply, first, the statute and its rules of procedure and evidence, then, ''if necessary, applicable treaties and the principles and rules of general international law'', together with the bracketed phrase, ''including the established principles of the law of armed conflict'', should be retained. Option 1 for Article 20 (1) (c), providing that the court should then, if these fail to provide answers, apply ''general principles of law derived by the Court from national legal systems of the world'' (unbracketed), with the qualification, in brackets, ''where those national laws are not inconsistent with this Statute and with international law and internationally recognized norms and standards'', should be kept to ensure uniform decision-making. Option 2, permitting reference to different national laws, could lead to different outcomes with regard to defendants from different countries in the same case as well as with regard to crimes committed in different countries, contrary to the fundamental principle of equality of accused before the court, as recognized in Article 14 (1) of the ICCPR. See Part II, IV.C.1.d. The unbracketed provisions, Article 20 (2), permitting the court to apply its own precedents, and Article 20 (3), requiring that ''[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights'', should be retained.

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW

Article 21. Nullum crimen sine lege[Zutphen 15; ILC A]

The fundamental principle of legality (nullum crimen sine lege) should be included in the statute. Article 21 (1) (a), which provides that ''a person shall not be criminally responsible under this Statute: (a) in the case of a prosecution with respect to a crime referred to in article 5 . . ., unless the conduct in question constitutes a crime that is defined in this Statute'', incorporates this principle, but it may have to be modified in two respects. Since the elements of the crimes are to be incorporated in a separate instrument drafted by the preparatory commission or the court after the statute is signed, this provision should be amended to indicate that the crime should be defined in the statute or separate instrument. If the international community subsequently decided that it would be appropriate for the court to assume jurisdiction over cases within the jurisdiction of an ad hocinternational criminal tribunal established by the Security Council, it might be necessary to amend Article 21 (1) (a), unless the draft provision is revised now to provide for such a possibility. Article 21 (1) (b) could be deleted if, as is likely, treaty crimes are not included within the court's jurisdiction when it is first established. If retained, the concept of applicability of a treaty to the conduct of an individual for purposes of imposing international criminal responsibility will have to be carefully defined since, in contrast to core crimes, most of the proposed treaty crimes - apart from torture - are not widely recognized as crimes of universal jurisdiction. Although the prohibition in Article 21 (1) (2), which is bracketed, of determining whether conduct is criminal by the process of analogy is widely considered part of the principle of legality, this prohibition will have to be interpreted in the light of the reality that crimes under international law do not have the same elaborate framework of criminal law and procedure as crimes under national law. Therefore, of necessity, short of an elaborate international criminal code, the court will have to resort in a limited number of cases, as provided in Article 20 of the consolidated text, to other applicable law than provided in the statute, separate instrument setting out the elements of the crimes and the rules of procedure and evidence. Similarly, even if the appropriate penalties are - as they should be under the related principle of nulla poena sine lege- stated in the statute in Article 68, the court will have to look at other applicable law in determining certain issues, such as whether to apply concurrent sentences or consecutive sentences. Paragraph 3 of Article 20, which is unbracketed, stating that ''Paragraph 1 shall not affect the character of such conduct as being crimes under international law, apart from this Statute'', is a useful complement to Article Y in Part 2.

Article 22. Non-retroactivity [Zutphen 16; ILC A bis]