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WOMEN'S CAUCUS' SUMMARY OF THE FIRST WEEK OF THE INTERNATIONAL CRIMINAL COURT 5TH. PREPCOM, JUNE 12 TO 30, 2000.
We have just concluded the first week of the three week ICC Prepcom here at UN Headquarters in New York and we need your assistance urgently. Below is a summary of the status of discussion at the end of the first week. We have included action letters for you to send to the relevant officials in your governments. We have also included email addresses of different country missions to the United Nations at the end of this message. This summary follows our update sent on the first day of the ICC Prepcom wherein we summarized the major issues we face at this meeting. This Prepcom will finalize negotiations on two documents(1) an Element Annex, further defining the crimes within the Court's jurisdiction, and (2) a set of Rules of Procedure and Evidence. There are still several contentious gender provisions at stake in these negotiations. In addition, there is a drama playing out here which includes aggressive bullying tactics by the U.S. against the international community's commitment to ensure an independent and fair ICC. Also, there are attempts to raise the threshold of the court's jurisdiction over crimes against humanity, making all of the crimes against humanity more difficult to prosecute but especially those of sexual and gender violence. There are about 30 of us here as a part of the Women's Caucus monitoring this process including participants from Australia, Kenya, Cameroon, Nigeria, Nicaragua, Japan, India, Philippines, Georgia, Sri Lanka, Costa Rica, Chile, Guatemala, U.S., UK, Liberia, Rwanda, South Africa, Jordan, Canada and Ecuador. In addition to the substantive issues we face at this Prepcom, there have been several process issues that have arisen. There is a presence of right-wing anti-choice groups here misrepresenting the positions of the Women's Caucus and even gaining access to informal discussions where NGOs are not allowed. We have learnt that when asked to leave, other members of their group quickly replace them. We are also concerned about the amount of negotiating time that is spent in informals and the speed with which the delegates must progress to meet their June 30 deadline. Some chairs of the working groups are setting strict rules about which issues can be raised and which cannot. This directly affects several gender issues. We are also concerned with a disturbing trend we have witnessed in the oversight of the negotiations. The bureau seems more concerned with ensuring near universal agreement to and acceptance of the final documents at all costs rather than protecting and maintaining the integrity of the Rome Statute. This is resulting in concessions on key issues which undermine the rome Statute to countries who will likely not ratify, including the U.S. and some Arab countries. The following is a summary of some of the priority issues as they stand as of Friday, June 16 1. U.S. PROPOSAL The U.S. will table its controversial proposal on Monday afternoon (June 19). This proposal seeks to give the Security Council more control over the cases that can come before the Court and allow for the possibility of exceptions for peacekeeping forces, or those acting under the "overall direction" of the State in question. Obviously, this would undermine the independence and impartiality this Court, or any court, required to do justice evenly and fairly. The U.S. raised similar issues in the Rome Treaty conference where the statute of the ICC was adopted in July 1998. The U.S. was soundly defeated on these issues though not without several substantive concessions concerning the court's jurisdiction. We are gravely concerned about this proposal and urge you to write your foreign ministries and other relevant officials about this. The U.S. has continued to intensively pressure governments of countries it deems dependent on U.S. military and/or economic aid for support for this proposal. Most of the EU countries are arrayed strongly against the proposal though we have had word that the UK has been a weak link on this issues. (We have had at least one report that with a slight modification, the UK could recommend support to the US proposal). In addition to its efforts within the context of the ICC process, the U.S. began last year to insist on a clause in bilateral extradition agreements that the parties to the agreement would not extradite U.S. officials to the Court, once established. Sri Lanka and S. Korea, among others, are parties to such agreements. Also, in the past week, Sen. Jesse Helms, chairman of the U.S. Senate Foreign Relations Committee, held a hearing for the sole purpose of denouncing the Court in the most vitriolic of terms. At this hearing, a bill was introduced which calls for the protection of U.S. citizens from the jurisdiction of tribunals such as the ICC and would nullify the effect of the ICC's jurisdiction. It is believed this heariing was to bolster the resolve of the U.S. delegation to the ICC Prepcom not to give any ground at this meeting. We urge U.S. based activists and organizations to contact officials in the State, Defense, and Justice departments and demand that they cease this destructive approach to this very necessary mechanism of accountability. We urge our international affiliates to contact your foreign ministries and urge them to reject this proposal and others like it. 2. CRIMES AGAINST HUMANITYTwo Prepcoms ago, 11 Arab countries submitted a proposal which sought to exclude crimes of sexual and gender violence from the Court's jurisdiction when committed within the context of family, religion or culture. The proposal itself was discriminatory and contrary to international law to begin with and should not have been considered. However, several delegations used the opportunity of this proposal to enter into negotiations with these countries which yielded text raising the threshold for all of the crimes against humanity. The language as currently formulated requires that states or non-state organizations have a policy of "active promotion or encouragement" of the criminal conduct. The compromise language would limit the statutory jurisdiction of the Court and would have the effect of discriminating on the basis of gender and age. The Women's Caucus sees this as a priority issue, especially since it is often the case that crimes committed on a widespread or systematic basis with the acquiescence or toleration of states or non-state entities are committed predominately against women and children, thus needing no active promotion or encouragement by the state. Since this language arose from compromise on a proposal that was baseless, discriminatory and contrary to international law to begin with, the Women's Caucus sees eliminating the compromise language as the only satisfactory option. Last week, the issue of the chapeau language was addressed. There appears to be three positions that emerged(1) countries who opposed the language but would be willing to work on alternative language; (2) countries who saw the language as somewhat problematic but could live with the current language and therefore cautioned against reopening debate because of the compromise involved; and (3) countries who supported the compromise language and threatened that the original proposal, excluding crimes against women, would come back into play if the debate was reopened on the chapeau language. >From the intervention on the floor, we placed the following countries in the various positions Group 1France, Samoa, Portugal, Colombia, Ecuador, Liechtenstein, Belgium, Cuba, Bosnia, Israel, Spain, Australia, Slovakia, South Korea, Thailand, Hungary, Group 2U.S., Netherlands, Norway, New Zealand, Switzerland, Germany, Canada, Sweden, Israel Group 3China, Bahrain, UAE, Egypt, Pakistan, Mexico, Peru, Turkey, Libya, Iran, Oman, Sudan, Russia, Indonesia As this is an issue, which could undermine the Court's ability to address egregious crimes against women occurring on a widespread or systematic basis as crimes against humanity, in addition to undermining generally the Court's capacity, we urge you to contact your foreign ministries and demand strong positions on this. We insist that if there are to be negotiations based on the compromise language, THE ALTERNATIVE LANGUAGE MUST ENCOMPASS SITUATIONS OF TOLERATION, IMPLICIT OR TACIL APPROVAL AND FAILURE TO RESPOND TO CRIMES BY THE STATE OR ORGANIZATION IN THE FACE OF SUCH VIOLENCE. We are concerned that many delegations are catering to countries on this issue for the sake of keeping them on board, when in fact they will likely not ratify any time soon. Thus, crucial aspects of the Rome Statute and the eventual ICC are bring compromised away. Like the U.S. proposal, these countries are seeking ways of ensuring that as non-state parties they will less the likelihood of being brought before the court. 3. ENSLAVEMENT/SEXUAL SLAVERYThere have been attempts by the UAE and the Holy See (a/k/a the Vatican) to keep "forced labor" and keeping others in a "servile status" from the definitions of the crimes of enslavement and sexual slavery. As of Friday, there was widespread support for retaining these elements in the crime of enslavement but not necessarily sexual slavery. Negotiations will continue on these definitions this week. We will insist that these elements also be applied to the crime of sexual slavery. 4. EVIDENCE IN CASES OF SEXUAL VIOLENCEThe draft text containing negotiated rules of evidence concerning consent and sexual conduct evidence in cases of sexual violence was discussed in an open session on Friday. In the last prepcom, the smaller working group had reached a difficult compromise on the language. Currently, the rule has 3 parts. First, the rules lays out a series of principles which establish that consent may not be inferred from different circumstances, such as the victim's silence or acquiescence. Second, the rule states that sexual conduct evidence shall not be admitted but makes a controversial reference to article 69.4 of the statute, which is a restatement of a basic evidentiary principle. This reference was insisted upon by Germany, Austria and other delegations who were concerned about reiterating a recognition of the rights of the accused. The third component of the rule sets up a screening procedure to be held in chambers whenever one of the sides wishes to admit consent or sexual conduct evidence. The hearing must be held confidentially and the judge must find that the evidence is highly relevant and admissible and is not being admitted for any of the prohibited purposes. At the open session, Turkey and Russia made interventions to the effect that the reference to 69.4 in the second part of the rule should be deleted as such evidence is always discriminatory and prejudicial to victims and witnesses and should never be allowed. They further observed that article 69, since it's part of the statute, applies equally everywhere and that its import is distorted if restated in this context and no where else. Their interventions were quickly followed by a number of delegations to the effect that the language was the result of a very difficult compromise and that if debate were reopened on that issue, the entire rule would come into question. The group included countries which originally desired a more progressive rule and those who had desired a more restrictive one favoring greater deference to the rights of the accused. The first group included France, Australia, Bosnia. The second group included Japan, U.S., Austria, Germany and the Holy See. As no further debate ensued after the reminder by these countries of the compromise, the text was adopted by the chair of the working group without further debate. The rule will now go as it stands into the report of the working group. -------------------------------------------------------- FOR FURTHER INFORMATION Women's Caucus for Gender Justice - P.O.Box 3541 - Grand Central Post Office - New York, NY 10163 USA - Tel+1(212)697-7741 - Fax+1(212)949-7996 - URL http//www.iccwomen.org ---------------------------------------------------------
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