The International Criminal Court

MONITORThe Newsletter of the NGO Coalition for an International Criminal Court

Issue 6 • November 1997

Summer PrepComDiscusses Role of theSecurity Council, Powersof the Prosecutor

ORIGINS OF THE ICC, PART 1Background to the Concept ofa Permanent Court

Page 6

NEW ON THE NETNew Resources on the Interneton the ICC Page 11

PLANS FOR ROMEICC CONFERENCE

Page 3

REGIONALREPORTSNews from around the Worldon ICC Activities Page 8-9

PUNISHING INT’L CRIMINALSBy William Schabas Page 7

complementarity, the discussion focused onArticle 35 of the draft statute which deals with theadmissibility or inadmissibility of a case before theICC. The preamble of the ILC draft statuteprovides that the court “is intended to becomplementary to national criminal justicesystems in case such trial procedures may not beavailable or may be ineffective.” The notions ofunavailability and ineffectiveness were open tovery different interpretations among the states. Inlight of the various views, the final draft adoptedwas seen as an important achievement.

On the question of how to initiate or “trigger”an ICC proceeding, a majority of states disagreedwith the proposition advocated mainly by the fivepermanent members of the United NationsSecurity Council to give the Security Council anexclusive role in initiating or preventing an ICCproceeding. Only a small group of countries weretotally opposed to a Security Council role inreferring matters to the ICC. But an overwhelmingmajority of countries opposed Article 23(3) of thestatute which states that a prosecution may notcommence if the matter arises from a situationbeing dealt with by the Security Council underChapter VII of the UN Charter without approvalfrom the Council. Thus, Article 23(3) would makeit possible for any permanent member of theSecurity Council to block an ICC investigation.

Many countries expressed concern thatcontrol over the ICC by a political organ such asthe Security Council would greatly impede theindependence and impartiality necessary for anindependent judicial body. It would make itpossible for a permanent member of the Security

Council to shield someone from prosecution. Amore widely acceptable proposal for the role of theSecurity Council, supported by the delegation ofSingapore and other countries, requires theSecurity Council to make an affirmative decisionto oppose a proceeding within a particular timeperiod.

Time limitations forced the debate on theSecurity Council to be curtailed, and more timewas allotted to the second working group focusingon procedural matters related to the ICC. Thisworking group was hampered by difficulties inreconciling the different legal traditions of variousstates. An issue of great debate in particularconcerned a proposal to create a pre-trial body tosupervise the ICC prosecutor’s investigation. Manystates from common law legal systems haddifficulty accepting the idea of a pre-trial chambersupervising any pre-trial activities. On the otherhand civil law countries such as France andPortugal strongly supported the intervention of apre-trial chamber in supervising all acts ofinvestigation as well as reviewing the indictmentprocess.

States were divided on how much powershould be given to the prosecutor and the courtduring investigations and the degree of state“involvement” in such investigations. A particularpoint of discussion was whether an on-siteinvestigation required the consent of the statewhere the investigation was to be conducted. Anexpert from the prosecutor’s office from theInternational Criminal Tribunal for the FormerYugoslavia noted that the credibility of an on-site

The ICC MONITORis a publication of the

NGO Coalition for an ICC

Continued on page 3

Proceeding with remarkable levels of compromiseand creativity, government delegates to theAugust meetings on the International CriminalCourt (ICC) negotiated such sensitive issues as therole of the Security Council and on-siteinvestigations. From August 4 to 15, more than100 government delegations gathered at UnitedNations headquarters for the fourth session of thePreparatory Committee on the Establishment ofan International Criminal Court.

This session’s agenda was divided betweentwo working groups, one dealing with issues ofcomplementarity and trigger mechanisms, andthe other addressing procedural issues related tothe ICC. Adriaan Bos of the Netherlands chairedthe first working group. Silvia Fernández ofVenezuela chaired the procedures working group.

Extensive debate over complementarity andtrigger mechanisms made it clear that many statesdisagreed over the very nature and power of theInternational Criminal Court. On the issue of

NGO representatives work on strategy at all-day sundaymeeting during ICC PrepCom in August.

The International Criminal Court MONITOR

a project of the NGO Coalition for anInternational Criminal Court(CICC)

CICC Address:c/o WFM777 UN Plaza New York, New York 10017USA

Tel: 1 212-687-2176 Fax: 1 212-599-1332email: cicc@igc.org

Web Address:http://www.igc.apc.org/icc

William R. Pace Convenor

Rik Panganiban Editor

Fanny Benedetti Program Associate

Denise Lifton Program Associate

Pascale Norris Program Associate

Shelly Cryer Media Coordinator

CICC Steering Committee:Amnesty InternationalEuropean Law Students AssociationFédération Internationale des Ligues des

Droits de l’HommeHuman Rights WatchInternational Commission of JuristsLawyers Committee for Human RightsNo Peace Without Justice (TRP)Parliamentarians for Global ActionWomen’s Caucus for Gender Justice in

the ICCWorld Federalist Movement

Current funding for the work of theCoalition has been received from theEuropean Union, the Ford Foundation,the John D. & Catherine T. MacArthurFoundation, individual donors andparticipating non-governmentalorganizations.

Page 2 The International Criminal Court MONITOR • November 1997

NOTE: The Coalition for an ICC does not take positions but is committed todisseminating relevant ideas and proposals related to the International Criminal Court.The Coalition is always interested in receiving submissions for our newsletter the ICCMonitor. Submissions should be sent to the attention of Rik Panganiban at the addresslisted in the right column. Please note that opinions expressed in a particular article arenot necessarily the views of the Coalition or any of its participating organizations.

ContentsPreparations for Rome Treaty Conference Page 3

Working Program for December PrepCom Page 3

Sectoral Reports Page 4

A Word (Or Two) about Gender Page 5by Alda Facio

Punishing International Criminals Page 5by William Schabas

Origins of the ICC Concept, Part I Page 6by Christopher Keith Hall

ICC Calendar Page 7

Regional Reports Page 8-9

Dr. Daniel Nsereko on the August PrepCom and Beyond Page 8

Arturo Carillo Suarez on the August PrepCom Page 9

New Net Resources on the ICC Page 11

About the Coalition Page 12

Of crucial importance to these processes is the need tobear witness to the truth, and to address with integritythe injustices of the past. If not dealt with, followinggenerations are doomed to recurrent conflict.Accordingly, the churches should set their face againstthe practice of impunity, whereby those guilty of humanrights violations and injustices are not held to accountfor their deeds...

From the Lutheran World Federation statement supporting the creation of an International Criminal Court, July 1997

NGO representativesgathered at aCoalition sundaystrategy meeting,August 1997.Richard Dicker ofHuman RightsWatch in foreground.More than 100 NGOrepresentatives fromabout 60organizations werepresent for the AugustPrepCom.

WORKING GROUP 1 (morning session)

Week 1- international cooperation and judicial

assistance (5 days)Week 2- left-over of procedural questions (3 days)- international cooperation and judicial

assistance (2 days)

WORKING GROUP 2 (afternoon session)

Week 1- general principles of criminal law (3 days)- penalties (2 days)Week 2- list and definitions and elements of

crimes: definitions of war crimes (2 days)(Monday / Tuesday 8 and 9 Dec.)

- penalties (1 day)- reserved

The International Criminal Court MONITOR • November 1997 Page 3

investigation could only be guaranteed inthe absence of supervision from state officialswhere the evidence was being collected.

With only two more preparatory sessionsscheduled before the diplomatic conferencein June of 1998, there remains much to beachieved. Fortunately the number of statesworking in favor of an effective court isincreasing at each stage of the process.

This report was prepared by Fanny Benedetti ofthe CICC. More detailed summaries of theAugust PrepCom can be found on the ICC Webpage at http://www.igc.apc.org/icc.

Tentatively scheduled to open on June 15,1998, the plenipotentiary treaty conferenceestablishing the International Criminal Courtwill be a remarkable gathering ofinternational legal experts and dignitariesfrom governments all over the world. Thesite of the conference will be the UN Foodand Agriculture Organization complex, incentral Rome near the Colisseum.

We expect that the support and interestof citizens groups, parliamentarians, mediaand others will dramatically increase during1998, especially in national and regionalforums, and in cultural and other eventswhich will be held around the world and, ofcourse, in Rome. However, most CoalitionSteering Committee members believe that dueto the overwhelming technical, legal andpolitical nature of the treaty conference, anddue to the enormous costs of attending a five-week meeting, the numbers of NGOsinterested in attending the official conferencewill be in the hundreds, not thousands.Among these, it is expected that the vastmajority will be able to attend only briefly.

This issue of numbers of NGOs interestedin attending the treaty conference hasbecome important, in large part due to thelimitations of the facilities at the FAO UN

complex in Rome. For this reason andthrough the kind help of Mr. Sinjela of theOffice of Legal Affairs, I, as CoalitionConvenor, and other Rome-based NGOs, weregiven a tour of the FAO facilities in earlySeptember.

The Plenary Hall has a total of 1162 seats,with 200 of these seats in a section for NGOsand observers. (The General Assembly Hallhas 1321.) The largest “working group”rooms, the Red and Green Rooms have 440and 471 seats respectively, with sections of50-100 NGO and observer seats. (Forcomparison, Conference Rooms 1,2 and 3 atUNHQ in New York have 498.) In addition,there are 15-20 smaller rooms which could beused for informal meetings, draftingmeetings, and for NGO-governmentmeetings, etc.

Thus, while we anticipate that there willbe space problems affecting governments, IOsand NGOs during some of the high-levelsessions, we believe that even if the NGOparticipation in the official meetings is two tofour times greater than in the PreparatoryCommittee meetings, the NGOs through theCoalition and other self-organizingmechanisms, will be able to adapt to thelimitations the FAO facilities may impose.

FAO officials indicated that during the fewtimes when it might be required, theproceedings could be broadcastsimultaneously in another room.

William R. Pace is the convenor of the NGOCoalition for an ICC and the executive director ofthe World Federalist Movement.

Plans for the Rome ICC Treaty Conference

by William R. Pace

Working Program for the PrepCom, 1-12December 1997

Summer PrepCom, continued from page 1.

NOTE: This working program gives an indication of the schedule of items. In the light of theprogress made during our discussion, it may be adjusted accordingly. The dates set for thediscussion on the definition of war crimes are fixed, however, on the indicated dates. If timepermits, informal consultations may be held in the second week to discuss the preparations ofthe debate on the remaining issues during the final session next April on the basis of the relevantarticles of the draft-statute and the compilation.

Main plenary hall of FAO complex

A smaller meeting room in the FAO complex

On Amnesty & the ICC

During the debate on Article 35, theUnited States circulated a paper onamnesties and invited states that hadexperienced national amnesties to speakout on this point. One governmentexplained that in certain cases amnestiescould provide a mechanism to facilitatethe restoration of the rule of law and thenormality of situations characterized byconflict and hostility. Another statehowever, suggested that amnesties maynot be appropriate for these “most seriousof serious crimes.” It was further arguedthat in applying amnesties to these crimes,national criminal jurisdictions would beunilaterally relieving themselves of theirprimary duty to prosecute and be acting incomplete contravention to internationallaw. The issue has not been resolved.Article 35, as presently drafted contains afootnote stating that the questions ofamnesties and pardons, and prosecutionsresulting in convictions or acquittalsshould be revisited in light of furtherrevisions to Article 42.

The August PrepCom was the focus of muchorganizing among NGOs of issue-focusedcaucuses, working groups, and associations.Below are some reports on their activities:

Child RightsAt the August 1997 Preparatory Committee

Meeting on the Establishment of anInternational Criminal Court a working group,led by Human Rights Watch and comprisedlargely of child rights NGOs and UNICEFrepresentatives, was formed to address issuesrelevant to the protection of children in the ICCprocess - issues that have been almost whollyabsent from earlier debates surrounding theICC.

Children are increasingly the victims ofgenocide, crimes against humanity, and seriousviolations of the laws and customs of war. Theyare often deliberately targeted as part oforchestrated campaigns to terrorize, subjugate,and destroy entire communities and peoples. Inaddition, children today are drawn into armedconflict as combatants, recruited by bothgovernmental and armed opposition groupsbecause of their unique susceptibility tomanipulation and control. In order to put anend to the exploitation and abuse of children inthis context, Human Rights Watch considers itessential that such gross acts of violence againstchildren be brought within the jurisdiction ofthe International Criminal Court, and that inthe investigation and prosecution of crimesbefore the ICC, the rights and special needs ofchildren are protected.

As witnesses, children are particularlyvulnerable to renewed (secondary)traumatization, to manipulation andintimidation, and to fear in the face of theirformer oppressors. The Court should providetrauma counseling for children testifying beforeit, and appropriate training and oversight forattorneys and court personnel who work withthem.

Human Rights Watch strongly maintainsthat children under 18 should not be broughtbefore the court as defendants. In accordancewith international standards of juvenile justice,the objective in dealing with children accused ofoffenses should always be rehabilitation, andthe Court – as a punitive institution – would beill-suited to this purpose. Rather than chargechildren for crimes before the ICC, it is thosewho manipulate and exploit them who shouldbe brought before the Court. For that reason,Human Rights Watch recommends that theforced or coerced participation in armed conflictof persons under the age of eighteen be includedwithin the definition of war crimes in the ICCstatute.

Human Rights Watch prepared a writtencommentary for the August 1997 Prepcomconcerning in part the rights of children aswitnesses and defendants before the ICC. Forthe December 1997 Prepcom, Human RightsWatch plans to distribute a written commentaryaddressing, with regard to children, thedefinition of war crimes, the age of criminalresponsibility for defendants, and related issuesof defenses, sentencing and penalties. It ishoped that UNICEF also will release a positionstatement on children’s issues arising in theICC.

For further information on the activities ofthe working group, please contact HumanRights Watch Children’s Rights Project, 485

Fifth Avenue, New York, New York 10017,telephone: 1 212 972 8400, fax: 1212 972 8905,e-mail: <hrwnyc@hrw.org>.

International Criminal DefenseAttorney’s Association

The International Criminal DefenceAttorneys Association is a non-governmentalorganization of judges, lawyers, andinternational legal experts who have expressedinterest and encouragement for the idea that awell-organized defense group can make animportant contribution to the development ofinternational criminal law. The ICDAAcontinues to develop its membership in Canada,US, Africa and Australia. It has been contactedby media in Canada. The association is also inthe process of contacting experts in order toproduce a report on evidence and procedurewith preliminary recommendations. Theassociation welcomes any suggestion and inputand invites people to join.

The ICDAA can be contacted at +1-514-287-9284, email <elisegroulx@citenet.net>.

Religious / Faith-based CaucusAn informal caucus of religious/faith-based

organizations met several times in Septemberand October to discuss their interest in theestablishment of an International CriminalCourt, and initiatives to be taken on by thegroup.

The group has produced a proposal for aforum to be organized during the December 1-15 Prepcom on the ICC. The forum would bringtogether representatives of different faiths andseveral seminaries to participate in an informaldiscussion on the ethical and moral issues raisedby the establishment of an ICC. Issues such asthe moral and theological imperatives and theethical dimension of the ICC; individual andcollective healing in society; and the moral,political and ethical dimensions of impunitywould be discussed.

The group also welcomed the initiative ofthe Carnegie Council on Ethics andInternational Affairs announcing a conferenceon “The moral, ethical and religious aspects ofthe ICC” to be held 16-17 December 1997 anddiscussed participation of some of theirmembers at the invitation of the Council.

Victims’ RightsThe issue of Penalties is on the agenda for

the December Preparatory Committee meeting,and NGOs working on victims’ rights issues areconcerned that there has not been sufficientopportunity to explore aspects of the issue ofreparation. These NGOs would like to provide aforum for fuller discussion of victim/survivorissues.

A small one-day seminar is being planned inLondon on November 7 to explore these issuesfurther, comprised of government delegates,experts and representatives of non-governmental organisations. For furtherinformation please contact Fiona McKay atREDRESS, 6 Queen Square London WC1N 3ARUK Tel: +44 171 278 9502 Fax: +44 171 2789410 Email: <redresstrust@gn.apc.org.>

For more information on these or other sectoralareas related to the ICC, contact Ms. FannyBenedetti at the CICC Secretariat.

The International Criminal Court MONITOR • November 1997

Reports on Sectoral ICC Organizing

Page 4

World Experts DiscussImpunity and HumanRights Violations

“Reining in Impunity for International Crimesand Serious Violations of Fundamental HumanRights” was the subject of an internationalconference at the International Institute ofHigher Studies in Criminal Sciences in Siracusa,Italy from September 16 to 21, 1997, convenedby Professor Cherif Bassiouni. The meeting wasco-sponsored by a number of non-governmental organisations (NGOs),universities and international institutes. The

eminent and extraordinary group ofparticipants included criminal law andinternational law experts, historians,representatives from Ministries of Justice andDefence, representatives from the ad hoctribunals, members of past and present truthand investigation commissions, as well asrepresentatives from a significant number ofNGOs.

The agenda for the four day conference wasdensely packed. On the subject of impunity, thefollowing themes were discussed: policyconsiderations on accountability, peace andjustice, international and national prosecutions,recording the facts about truth, civil andpolitical sanctions, compensation andreparation, post-conflict justice issues, restoringorder and justice, and an evaluation of theefforts to develop international principles orguidelines on accountability.

Discussions concentrated on assessing themechanisms of accountability for grossviolations of human rights and humanitarianlaw. The role of apologies and pardons, truthcommissions, amnesties and trials at both thenational and international level in thepeacebuilding process were debated at length.The philosophy and policy considerationsbehind these mechanisms, as well as the moretechnical and financial problems associatedwith their establishment and functioning wereincluded in the discussions.

Shared by all participants was the generalassumption that justice should not be abargaining chip to political settlementsanymore, and that, as expressed by UNSecretary General Kofi Annan, “fightingimpunity is a prerequisite for post-conflictpeace building.”

From November 16 - 22 government legalexperts and others will gather again in Siracusa,Italy for an inter-sessional meeting on the issueof State Cooperation and the ICC.

Report prepared by Fanny Benedetti and PascaleNorris of the CICC. Contact Prof. M. CherifBassiouni or assistant Tabita Sherfinski +1-312-362-5922 for more information on theIntersessional meetings.

fighting impunity isa prerequisite forpost-conflict peacebuilding.

– Kofi AnnanUN Secretary General

The December session of the PrepCom willdevote at least three days to the issue ofpenalties. The International Law Commission(ILC) draft addresses the issue in two provisions,articles 46 and 47. Article 46 states that the TrialChamber, in the event of a conviction, shallhold a further hearing to hear evidence relevantto sentencing and to hear submissions from theProsecutor and the defense. It adds that “[i]nimposing sentence, the Trial Chamber shouldtake into account such factors as the gravity ofthe crime and the individual circumstances ofthe convicted person.

Article 47 concerns applicable penalties,which are limited to imprisonment, up to andincluding life imprisonment, and to a fine. Inassessing the term of imprisonment, the court“may” consider penalties provided by the law ofthe State of the convicted person, the Statewhere the crime was committed and the Statewhich had custody of and jurisdiction over theaccused. If fines are assessed and paid, the Courtmay order them to be transferred to theRegistrar, to defray court costs, the State of thevictims or a trust fund to be established by theUnited Nations secretary-general to benefit thevictims of crime. An earlier draft considered bythe ILC also provided for forfeiture of stolen ormisappropriated property, which could then beentrusted by the Court to a humanitarianorganization.

Although the principles are similar, thesetwo articles are not identical to the penaltyprovisions of the Statutes of the tribunals forRwanda and the former Yugoslavia. The latterdo not allow for fines to be imposed, forexample, although the judges of the court, intheir rules of evidence and procedure, have sinceenacted provisions providing for fines in thecase of perjury or contempt of court.

When the penalty provisions of the draftstatute were considered in 1996 by the PrepComand subsequently by the Sixth Committee of theGeneral Assembly, a few states attempted torevive the possibility of capital punishment. Ofcourse, the death penalty was provided for andapplied by the international tribunals inNuremberg and Tokyo, following the SecondWorld War. The progressive development ofhuman rights law since that time has madecapital punishment virtually unthinkable for aninternational tribunal. Indeed, when theInternational Criminal Tribunal for the formerYugoslavia was set up by the Security Council in1993, even States that enthusiastically apply thedeath penalty in their domestic legislation, suchas the United States and China, did not argue forits inclusion in the Statute.

Both the death penalty and lifeimprisonment were debated in considerabledetail by the International Law Commission.The vast majority of its members, with only afew exceptions, viewed capital punishment as ananachronism that deserved no place in moderninternational criminal justice. Lifeimprisonment, too, disturbed many members ofthe International Law Commission, who viewedit as a form of cruel, inhuman and degradingtreatment or punishment. In the end, however,the ILC draft retained the possibility of lifeimprisonment. The Statutes of the Yugoslav andRwandan tribunals speak only of“imprisonment” although the judges, in theirRules, have declared that this may go as far aslife imprisonment.

Jordan, Egypt, Singapore and Malaysia haveattempted to revive discussion about the deathpenalty. They are surely aware that their effortsare doomed to defeat, but may seek to raise theissue so as to avoid having the debate taken asanother virtually unequivocal manifestation ofinternational rejection of the capitalpunishment. Rwanda, too, has argued for capitalpunishment, pointing to the unfairness of asituation where “big fish” in Arusha are subjectto life imprisonment while their flunkies, whoare being tried under Rwandan national law,may be executed. Indeed it is unfair, althoughthe solution is to commute death sentenceswithin Rwanda.

Three protocols to international humanrights treaties now outlaw the death penalty.Furthermore, the American Convention onHuman Rights prohibits States that haveabolished capital punishment fromreintroducing it. Together, these fourinstruments have been ratified by approximatelyfifty States, and perhaps as many as twenty morehave indicated their intention to do likewise.From the standpoint of domestic law, more than100 States have now abolished capitalpunishment, whilst fewer than ninety stillmaintain it in their law.

The two ad hoc Statutes, as well as the ILCdraft, attempt to guide the judges by suggestingthat they refer to sentencing law in force inStates that are related to the offense or to theoffender. This is the result of concerns about theprinciple of legality, known by the Latin phrasenulla poena sine lege (no punishment without alegal text). To the extent a penalty which isimposed can claim to be comparable to that inforce in a domestic court where the offendermight be subject to prosecution, complaintsalong such lines are answered.

However, reference to domestic criminal lawhas not proven to be a simple matter. In the firstsentencing judgment of the tribunal at TheHague, in the Erdemovic case, the TrialChamber essentially disregarded Yugoslavsentencing practice, which it found to be oflittle practical assistance. In any case, concernsabout the nulla poena rule may well beexaggerated. The absence of sentencing texts forthe crimes prosecuted at Nuremberg and Tokyowas not even debated, although the offendersargued, unsuccessfully, that they were beingprosecuted for crimes that had not previouslyexisted. Arguments about the principle oflegality should have been laid to rest with theNuremberg judgment, in October 1946.

Sentences are to be served in a Statedesignated by the Court from a list of those whohave offered their services (art. 59, ILC draft).The same approach exists for the ad hoctribunals, although they have not yet made theirchoice, given that the two cases for whichsentence has already been imposed are bothunder appeal. An important provision providesfor pardon, parole or commutation, but only ifthis is already allowed by the law of the Statewhere the sentence is being served. This maycreate injustices among prisoners, if more thanonce State gets involved in the punishmentphase of international justice.

Making parole contingent on domesticlegislation is unfortunate, because conditionalrelease should be a fundamental principlerespected by international institutions whether

The International Criminal Court MONITOR • November 1997 Page 5

Punishing International Criminals

by William Schabas

A Word (or Two) aboutGender

by Alda Facio

During the past PrepCom in August,participants in the Women’s Caucus were toldby some delegates and other NGO participantsthat our proposal concerning the incorporationof a gender perspective throughout the ICCstatute is too “specific” to be dealt with in allareas and aspects of the ICC, especially in thoseprovisions having to do with procedures.

Many said that although they understoodthe need for the incorporation of “genderissues” into the definition of the “core crimes”the issues at hand during the August PrepComhad nothing to do with gender.

Women’s caucus participants also heardthat if if the statute were to deal with “genderconcerns” then, in all fairness, it would alsohave to deal with the concerns of otherdisadvantaged groups, such as children, thedisabled, etc.

We know that those who have expressedthese concerns are as interested as we are increating an effective International CriminalCourt. We therefore believe that thesearguments arise out of a misunderstanding of towhat the terms “gender,” “gender perspective”and “gender crimes” refer. This is why wewould like to briefly refer to the followingpoints which we believe will help clarify someof these misunderstandings.

Some misconceptions about the meaningthe term “gender”:

Gender is not a synonym for “woman”Many people, including women, incorrectly

use the term “gender” when they are referringto women. This confusion arises out of the factthat historically it has usually been theoppressed who identify and define thestructures that oppress them. It is only logicaltherefore that the term was developed by thewomen’s movement to explain and define thestructures that subordinate and oppress womenof all class, ethnicities, ages, etc. Nevertheless,the concept is now used more and more by menwho believe in equality and justice to explainthe social construction of their privileges andviolent conduct. It is also found in many UNdocuments.

Gender does not refer to a “sector” or a“vulnerable group” of society

It is important to note that women are nota sector or minority group (women comprisehalf of the human race as men comprise theother half.) Beyond that, the term gender doesnot refer to any group of people, male orfemale.

“Gender crimes” include, but are muchbroader than rape or sexual violence

Even though the crime of rape is a gender-based crime, “gender crimes” refer to thosecrimes based on the power imbalance betweenmen and women and social construction offemininity and masculinity. What is more, theUN Declaration on the Elimination of Violenceagainst Women recognizes that : “violenceagainst women is also a manifestation ofhistorically unequal power relations betweenmen and women, which have led todomination over and discrimination againstwomen by men, and the prevention of their fulladvancement, and that violence against women

Continued on page 10 Continued on page 10

rudential, ethical and legalconstraints on what

combatants could do to eachother and to non-combatants,including prisoners of war andcivilians, have existed in manycultures for approximately 2,500years. Trials by ad hoc tribunals for breaches ofthose norms date back at least to the fifthcentury B.C. in Greece. Almost all such trialswere by ad hoc tribunals constituted by one ofthe belligerents – usually the victor – rather thanby ordinary courts. The earliest ad hocinternational criminal court appears to be thetribunal of judges from towns in Alsace, Austria,Germany and Switzerland, established in 1474 totry Peter de Hagenbach for murder, rape, perjuryand other crimes in violation of the “laws ofGod and man” during his occupation of thetown of Breisach.

Nevertheless, it appears that nearly fourcenturies were to elapse before anyone seriouslyconsidered the idea of a permanent internationalcriminal court. Then, in the space of three-quarters of a century before the ad hocInternational Military Tribunal at Nuremberg,there were at least a dozen proposals to establishsuch a court. Each of the proposals wrestledwith the same problems being addressed by thePreparatory Committee on the Establishment ofan International Criminal Court. A brief reviewof the strengths and weaknesses of some of thoseproposals, as well as their fate, may be of interestto those following the current negotiations.

In 1870, Gustav Moynier, one of thefounders of the International Committee of theRed Cross, considered in his commentary on theGeneva Convention of 1864 concerning thetreatment of wounded soldiers whether aninternational court should be created to enforceit. But Moynier rejected this approach in favourof the pressure of public opinion, which hethought would be sufficient. Several monthslater, the Franco-Prussian War broke out.Dismayed by the atrocities fanned by press andpublic opinion on both sides in that conflict, on28 January 1872, he proposed the establishmentof a court by treaty, to be activatedautomatically in the case of any conflict betweenthe parties.

The President of the Swiss Confederationwas to chose three neutral judges by lot and thebelligerents were to choose the other two. Onlyinterested states were to be permitted to filecomplaints as Moynier feared that the courtwould be overwhelmed by frivolous complaints.

Recognizing that the terms of the GenevaConvention were inadequate to impose criminalresponsibility, he proposed defining violationsand penalties of this convention in a separateinstrument. The court was to determineinnocence or guilt after an adversarial hearingand, in addition to imposing punishment,

awarding victims compensation. When theperson convicted could not pay the damages, hisor her government would be responsible forpayment as it would be in the government’sinterest that the convention be scrupulouslyobserved by its nationals. As a deterrent, statesparties were to publish the judgments in theirofficial gazettes.

One serious weakness was that the expensesof the court were to be paid as they wereincurred by the belligerents, rather than on amore secure long-term basis by all states. Inaddition, the court would not have hadjurisdiction over violations of customary laweither during international armed conflicts, or,despite the horrors of the American Civil War afew years before, during internal conflicts.However, he did note that in the future thejurisdiction of the court could be extended.

Despite the weaknesses of the proposal, hadit been adopted, the 1899 and 1907 Hague PeaceConferences would no doubt have given itjurisdiction over violations of the HagueConventions. Such a step could have had asignificant impact on public attitudes, as well ason government planning for war and behaviorduring the wars which have plagued thetwentieth century. Sadly, however, Moynier’sproposal was almost unanimously rejected bythe leading international lawyers of the day,and, therefore, only one government wasprepared to support it.

The 1919 Versailles Peace Conference failedto adopt the recommendation of its commissionof inquiry to set up an ad hoc internationalcriminal tribunal with jurisdiction over warcrimes and crimes against humanity. The Alliesnever established the ad hoc tribunal called for inthe Versailles Treaty to try the Kaiser for “asupreme offence against international moralityand the sanctity of treaties” or the Alliedmilitary war crimes tribunals; and only a fewpersons were tried by German courts. In thelight of these failures, nearly a dozen proposalswere made before the end of the Second WorldWar to set up a permanent institution.

The first of these proposals, by BaronDescamps of Belgium, was rejected by theLeague of Nations in 1920 as “premature”, butothers, such as those of Dr. Hugh H.L. Bellot,Vespasian Pella and Henri Donnedieu de Vabres,were adopted in the 1920s by non-governmentalorganizations, including the International LawAssociation, the Inter-Parliamentary Union andthe International Congress of Penal Law. Theseorganizations were not effective, however, ingenerating public support for the idea of apermanent international criminal court untilFrance, after the assassination of its PrimeMinister and the King of Yugoslavia in 1934,convinced the League of Nations Assembly in1937 to adopt a treaty establishing such a courtwith jurisdiction over attacks on government

officials and the general public, with a separatetreaty defining the criminal jurisdiction. Itreceived only one ratification. Renewedproposals for a permanent international criminalcourt were made throughout the Second WorldWar, but they were abandoned in favour of thead hoc Nuremberg and Tokyo tribunals, whichtook less time to establish.

Many of these proposals, despite lengthyand detailed provisions, would have createdineffective courts. They relied on the Council ofthe League of Nations or states to submit cases,which would have led to few or politicallyselected cases, thus undermining the authorityand integrity of the court. Some tried to includealmost all violations of international law andfew included clearly defined crimes or penalties.None had satisfactory fair trial guarantees.Several had innovative provisions, however,such as permitting the victim to participate andto obtain compensation, excluding the deathpenalty and providing for an internationalpolice force.

As we approach the 126th anniversary ofGustav Moynier’s daring proposal, the prospectsare increasingly bright that the internationalcommunity a few months later will adopt atreaty establishing a permanent internationalcriminal court. However the current draft statutecontains some of the same flaws as in these earlyproposals. It will be up to the public to ensurethat government representatives at thePreparatory Committee and the diplomaticconference avoid the same mistakes.

Christopher Keith Hall is a Legal Adviser forAmnesty International

NGO Coalitiofor an Internatio

Criminal Cou

c/o WFM, 777 UN Plaza, 12thNew York, NY 10017 USTelephone: 1-212-687-21

fax: 1-212-599-1332e-mail: cicc@igc.apc.or

Page 6 The International Criminal Court MONITOR •November 1997

Origins of the ICC Concept (1872-1945)

Coming Soon: ICC Origins, Part IIChristopher Keith Hall of AmnestyInternational continues to trace thehistory of the permanent InternationalCriminal Court proposal through thepost-war years.

Gustav Moynier, one of the founders of the Red Cross.

P

Pictured: Dr. Benjamin Ferencz, U.S. prosecutor of theNuremberg war crimes trials.

NGO Coalition an International

Criminal Court

FM, 777 UN Plaza, 12th Floorew York, NY 10017 USAlephone: 1-212-687-2176

fax: 1-212-599-1332e-mail: cicc@igc.apc.org

The International Criminal Court MONITOR • November 1997 Page 7

ICC Calendar (November - March)

Other Events

NOV

DEC

1998JAN

FEB

MAR

November 6-8. Int‘l LawWeekend ‘97. New YorkCity, USA. Hosted by theAmerican Branch of theInt’l Law Association at theHouse of the Association ofthe Bar of the City of NewYork. Includes a paneldiscussion on the ICC onNov 7 at 9am.

December 1. Pressbriefing, reception,and other activitiesplanned on the ICC.New York, USA.Hosted by EmmaBonino. Sponsoredby No Peace WithoutJustice, +1-212-980-1031.

January 30-31. Conference on the ICC. New Delhi, India. Co-sponsoredby Parliamentarians for GlobalAction and No Peace WithoutJustice. Contact Tanya Karanasiosat Parliamentarians for GlobalAction at +1-212-687-7755.

February 5-7. ICCconference.Dakar, Senegal.Conferenceorganised by theGovernment ofSenegal and NoPeace WithoutJustice, +1-212-980-1031.

March 1.Commemoration of the50th Anniversary duringthe 54th session of theCommission on HumanRights. Geneva,Switzerland. Sponsored bythe High Commissioner /Centre for Human Rights.

November 13.Conference onthe ICC. Atlanta,USA. Organisedby the CarterCenter and NoPeace WithoutJustice. Contact:NPWJ +1-212-980-1031.

November 16 - 22. Inter-Sessional Meeting ofthe PrepCom. Meeting on State Cooperationand the ICC. Sirucusa, Italy. Held by theInternational Institute of Higher Studies inCriminal Sciences. Attendance limited togovernment representatives with nationaldelegations in their individual capacity, relevantNGOs and those who express interest in thesubject. Contact: Prof. M. Cherif Bassiouni orassistant Tabita Sherfinski +1-312-362-5922.

November 20-23.“Justice notImpunity” conferenceon the ICC. Rome,Italy. Organised by theEuropean Law StudentsAssociation (+32 26462626) and NPWJ(+1-212- 980-1031).

December 1-12.FIFTH SESSION OFTHE UNITEDNATIONSPREPARATORYCOMMITTEE ON THEESTABLISHMENT OFAN INTERNATIONALCRIMINAL COURT.New York City, USA.

February 14. Universal HumanRights in the Next 50 Years.Birkbeck College, University ofLondon, UK. Confirmed Speakers:Robert Archer, Prof. ChristineChinkin - London School ofEconomics and Prof. Asbjorn Eide.Contact: Bernie Hamilton +44-171-373-7332.

March 1. Women’s Rightsat the Dawn of the 21stCentury: The ContinuingRelevance of the UniversalDeclaration. New York,United States. Sponsored bythe United Nations Divisionon the Advancement ofWomen.

March 12 -13.American BarAssociation’sConference CelebratingUDHR50 and theGenocide Convention.Contact Rozann Stayden,+1-202-662-1771. Email:rstayden@staff.abanet.org

March 16 to April 3. SIXTH SESSION OF THEUNITED NATIONSPREPARATORYCOMMITTEE ON THEESTABLISHMENT OF ANINTERNATIONALCRIMINAL COURT. NewYork City, USA.

December 10. Human Rights Day.50th Anniversary of the UniversalDeclaration of Human Rights. Severalevents being organized. Official launchof events to mark UDHR50 culminatingin December 10, 1998. Contact MichaelCooper at the Franklin & EleanorRoosevelt Institute for moreinformation,tel: 1-212-907-1332.

December 16. “TheMoral Ethical andReligious Aspects ofthe ICC.” Sponsored bythe Carnegie Council onEthics and InternationalAffairs. New York, USA.Contact: Joel Rosenthal,+1-212-838-4120.

The NGO Coalition for an ICCseeks to keep its network of non-governmental organizations andinterested individuals informed ofICC-related events around theworld. To announce your event,please send the information tothe CICC secretariat at theaddress listed here.

June 15 - July 17, 1998 - tentative dates. ICCTreaty Conference. Rome, Italy. The GeneralAssembly in December of 1996 called for theconvening of a plenipotentiary treatyconference to occur in 1998. The governmentof Italy has offered to host the conference inJune, 1998 in the city of Rome. Theconference site will be the Food andAgriculture Organization headquarters.

ICC Treaty Conference

Christopher Hall of Amnesty International, William Pace of the CICC,Florence Martin of Amnesty and Hans Behrens of the German delegation atthe August CICC reception.

Nov 26.EuropeanParliamentmeeting onICC.Brussels,Belgium.Sponsoredby NPWJ.

On the invitation of the Coalitionfor an International Criminal CourtI was privileged to attend as anexpert to the August session of theUnited Nations PreparatoryCommittee on the Establishment ofan International Criminal Court(PrepCom) and other related non-governmental organizationmeetings at the UN Headquartersfrom August 1 to 14, 1997.

As a newcomer to the NGOCoalition activities my initialstance was to listen and learn fromexperienced colleagues. I wasimpressed by the deep commitmentof these colleagues to the idea of anInternational Criminal Court andby the tremendous efforts that theirrespective organizations expendedin ensuring that the idea becomes areality. I was convinced more thanbefore of the monumental role thatthe NGOs have to play in

mobilizing national andinternational public opinion insupport of the idea of an effectiveICC. As I warmed up, I was able toreport of my own activities in myhome jurisdiction Botswana.

As a participant at the initialSiracusa meeting in 1995 I was ableto give a radio interview on RadioBotswana that year. An articlecovering my participation in theSiracusa meeting also appeared thatyear in the University of Botswananewsletter. The radio interview andthe newsletter article raised someawareness among the listeners andinterest in the ICC idea. However,because of lack of follow-up theidea has generally not featuredmuch in the Botswana media or inpublic debate.

The local NGO community isstill fledgling and for the most partpreoccupied with local issues. I

appeales to the major internationalNGOs which are members of theCoalition to establish national orregional offices in the developingworld to assist in the developmentof civil society there and tosensitize local populations aboutimportant international issues suchas the ICC. I was happy to learn ofNGO-sponsored meetings due totake place in South Africa inSeptember 1997 and in Senegal inearly 1998. Meantime, I amplanning a seminar at theUniversity of Botswana to discussthe court.

“Lobbying” involved chattingwith members of nationaldelegations, usually at thebeginning and end of sessions andduring intermissions. This activityrequired diplomatic skills to avoidinjuring national sensitivities.Therefore my approach was to

commend delegates for theirinterventions, to seek clarificationson what they had said and, where Idisagreed with their positions totactfully point out the flaws in suchpositions.

The informal NGO-governmentmeetings were invaluable, sincethey provided us with a uniqueopportunity to express ourconcerns and to hear explanationsfrom members of delegations ontheir positions. At the first meetingwith the “like-minded” states I wasprivileged to tell the delegationsthe weakness of relying on statesonly for initiating prosecutionsbefore the ICC. I cited to themexamples of state-complaintmechanisms under the AmericanConvention of Human Rights, theOAU Charter on Human andPeople ’s Rights, the European

Page 8 The International Criminal Court MONITOR •November 1997

Regional Reports

Dr. Daniel Nsereko on the August PrepCom and Beyond

AfricaThe past several months has

seen an enormous explosion ofNGOs based in Africa participatingin the Coalition. This continent-wide expansion, with over 90organisations now participating, arebased amongst others, in Kenya,South Africa, Nigeria, Uganda,Botswana, Rwanda, Ethiopia andTanzania. The response has beenoverwhelming and indicates howimportant the establishment of anindependent and effectiveinternational criminal court is toAfrican civil society.

Already various activities havetaken place throughout Africa. TheInternational Commission of Jurists- Kenya held a workshop in May todiscuss and debate various issues onthe draft statute and to develop aregional perspective on key issueson the ICC. In Botswana, Dr.Daniel Nsereko, a Law Professor atthe University of Botswana, whohas already given radio interviewson the ICC and written numerousarticles for papers, will be giving aseminar talk on “Issues andProspects for an ICC.”

The Southern AfricanDevelopment Community (SADC)has also been very active and asuccessful conference on the courtwas held in Pretoria from 10 to 11September 1997 by the SouthAfrican Ministry of Justice andLawyers for Human Rights, a SouthAfrican NGO. The conference wasvery well attended by bothMinisters of Justice from the SADCregion, delegates from New York-based missions and SouthernAfrican NGOs. Members of theCoalition ’s steering committeeattended, namely Human Rights

Watch, and the InternationalCommission of Jurists. The level ofparticipation showed the extent andseriousness by which Africangovernments and NGOs are takingthe issue of the establishment of aninternational criminal court. At theconclusion of the conference, manycountries agreed to participate morefully in the forthcoming PreparatoryCommittee sessions and grassrootsactivity to heighten awareness ofthe Court was stimulated.

With this in mind theCoalition has tried to facilitate theestablishment of networks in Africaon a local, regional and nationalbasis. This has taken the form ofInformation Packets that werefurther developed during the AugustPreparatory Committee meetings.This Information Packet is a usefultool for NGOs in suggesting possibleguidelines in their efforts to raiseawareness about the ICC. Itprovides information on the Courtand how to establish networks.

The Coalition was able to bringover several NGOs based in Africa toparticipate in the August PrepCom.NGOs were represented fromBotswana, Kenya, Guinea-Bissauand Egypt. This resulted in fruitfulinteractions between the Africandelegates and the NGOrepresentatives through twomeetings with African delegates as awhole and with SADC delegates.The Coalition’s representatives wereable to press on the issue of non-participation by several Africanstates and the issues being dealtwith in the ICC Statute whichwould impinge on the effectivenessof the Court. As a result of thesemeetings many of the Coalition’srepresentatives were able to returnhome and push these issues on the

domestic front and inform otherNGOs.

BrusselsThe Brussels-based Coalition

will focus on working in theEuropean context to press theEuropean Union to adopt strongcommon positions on the ICC. Abipartisan intergroup ofparliamentarians, referred to as the“friends of the ICC” is beingestablished within the EuropeanParliament in order to raise publicawareness around the ongoingnegotiations, initiate resolutions,hold hearings and generate furtherdebate on the ICC at theParliamentary level. Several optionsfor the hosting of the technicalsecretariat are being considered. Asecond meeting of these groups isscheduled for November 25, prior tothe Symposium on the ICC beingorganized by NPWJ at the EuropeanParliament.

For further information on thecoalition of Brussels-basedorganizations please contactMariana Goetz (NPWJ), tel: 32 2 2847197, e-mail: m.goetz-quintant@agora.stm.it; TristanKrstic (ELSA) tel: 32 2 375 1090,email: kralj@hotmail.com.

EuropeWhile efforts to increase

awareness and support for theInternational Criminal Court areongoing in Africa, Asia, LatinAmerica and Eastern Europe, therehave been a lack of nationalnetworks in Italy, where the treatyconference will be held, andWestern Europe, location of theleading governments of the “like-minded” group of progressive

countries, as well as permanentmembers of the Security Council.

In response, a series of meetingswas recently held in severalEuropean capitals in order to launchnational coalitions of organizationsinterested in the establishment ofan effective and independentInternational Criminal Court (ICC).The CICC, along with the nationalmembers of its Steering Committeehelped facilitate these meetings inRome, Brussels, Paris and London.

All of the groups that attendedthe meetings agreed that the timewas ripe to develop these coalitions.The agenda of the meetingsincluded discussions on the statusof the negotiations at the PrepCom,the key issues of concern to mostNGOs, the positions taken by therespective governments on theseissues and the objectives andmechanisms for developing anational coalition. All organizationsagreed on the necessity to establishtechnical secretariats for thesecoalitions. The secretariats willdisseminate relevant ICC-relatedinformation to memberorganizations, such as a rollingcalendar of ICC-related events witha focus on the events within theparticular state, facilitate theexchange of NGO position papers,provide organizations with regularupdates on the negotiations at thePrepComs with a focus on thepositions of their governments, aswell as information on how toparticipate at the PrepComs and theDiplomatic Conference. Thesecretariats will also help conveneregular meetings between themember organizations.

France

Continued on page 10.

Continued on page 9

The Coalition of France-basedgroups was established on October7, 1997. The technical secretariatwill be run by the FédérationInternational des Leagues des Droitsde l ’Homme and AmnestyInternational-France. Theorganizations agreed that it wascrucial for French NGOs to demandmore transparency in the decision-making process from the Frenchauthorities and to raise awareness ofthis issue with French civil society.The organizations agreed to adoptan immediate tripartite strategy: todevelop a common position oncertain issues, disseminate anannouncement to other France-based NGOs inviting them toadhere to the Coalition, and toorganize a joint delegation to meetwith the decision-makers inMatignon. A committee was formedto draft these letters andannouncements.

For further information on thecoalition of France-basedorganizations please contactAntoine Bernard (FIDH), tel: 33 1 4355 25 18, e-mail: fidh@hol.fr; JeanFollana, tel: 33 1 42 72 79 58, email:follana@amnesty.fdn.fr.

ItalyThe coalition of Italy-based

groups decided on establishing atechnical secretariat to be hosted inthe offices of No Peace WithoutJustice (NPWJ) until May 1998 andfrom May until the end of theDiplomatic Conference, in theoffices of Movimondo, locatedcloser to the FAO building. Thetechnical secretariat will be run byrepresentatives of AmnestyInternational-Italy, NPWJ, theEuropean Law Students Association-International and Movimondo. The

Coalition of Italy-based groups willfocus on coordinating the activitiesof Italian NGOs in the run up to theDiplomatic Conference, help theCICC liaise with the Italiangovernment and coordinate thepreparations of the NGOs arrivingfor the Diplomatic Conference inRome.

For further information on thecoalition of Italy-basedorganizations please contactElisabetta Noli (AmnestyInternational-Italy) tel: 39 6 37 3532 63, e-mail: e.noli@amnesty.it;Stefano Palumbo (NPWJ) tel: 39 6689 791, e-mail:s.palumbo@agora.stm.it; DavidDonat-Cattin (ELSA) tel: 39 6 637298 97; Gianni Rufini (Movimondo)tel: 39 6 57 30 03 30, e-mail:m o l i s v . m o v i m o n d o @star.flashnet.it; or EduardoMeligrana and Stefano Bartoli, e-mail: elsaroma@students.rpilo.it.

Latin AmericaLegal experts, activists and

dignitaries from all over the worldgathered in Montevideo, the capitalof Uruguay, for a conference on thecreation of an ICC. Held in theamphitheater of the Ministry ofForeign Affairs, the conference wassponsored by No Peace WithoutJustice, Parlamento Latino-americano, the Universidad para laPaz, and the Inter-press Service,with the collaboration of theEuropean Union and the OpenSociety Institute. Details of theconference can be found on theirweb site at http://www.confepaz.org.

From the success of theMontevideo conference theCoalition has been in contact withnumerous groups based in Latin

America in order to form regionalLatin American networks.

United KingdomBased on the strong support

voiced by the new Foreign SecretaryRobin Cook for an ICC, and a slightshift in the positions of thisgovernment on certain key issuesrevealed at the most recentPrepCom, groups attending themeeting of United Kingdom-basedorganizations agreed on the timelyestablishment of such a Coalition.This Coalition agreed to develop ane-mail network to allow forinformation sharing betweengroups. An open-ended workinggroup was established to discussICC-related issues and a round-tablediscussion at the meeting allowedgroups to update each other on theadvocacy work of theirorganizations with regards to theICC. A next meeting date wasprovisionally set for November 7,one day prior to the conferencebeing hosted by AmnestyInternational Lawyers’ Network andThe British Institute of InternationalComparative Law on Trials forAtrocities-International CriminalJurisdiction to continue planning astrategy for NGO action in the UKbefore the Diplomatic Conference.

For further information on thecoalition of UK-based organizationsplease contact Peter Luff: 44 171 9306733, email: 106167.371@compuserve.com.

United StatesConcerned individuals in

Southern California have gatheredto establish mechanisms for localpeople to participate in the globaldebate over the establishment of theICC. The resultant Southern

California Working Group on theInternational Criminal Court willdevelop strategies for involving awider circle of individuals andorganizations in the issue. Thesewill include a conference on theICC in the early part of 1998 withguest speakers from the StateDepartment and the UnitedNations. The Working Group is alsoplanning to send a citizens ’delegation to observe theproceedings in Rome, in June 1998.

The Working Group includesindividuals and organizations fromthe legal, the academic and thehuman rights communities.Convened by the United NationsAssociation-USA, Pasadena/FoothillsChapter, it is chaired by Jane Olson,regional co-chair of Human RightsWatch. Participants include localrepresentatives of the American BarAssociation, Amnesty International,USC Law School, the WorldFederalist Association, the AmericanJewish Congress, and the ACLU, anda host of working lawyers fromthroughout Southern California.Among the first actions of theWorking Group was to sponsor aspeaking tour of Southern Californiaby John Washburn, a formerDirector of Political Affairs at theU.N. and co-chair of theWashington Working Group on theICC.

The Working Group is currentlylooking for individuals who areinterested in issues of human rightsand international cooperation to getinvolved in its work. For moreinformation call +1-626-449-1795.

Compiled by Denise Lifton and PascaleNorris of the CICC.

The International Criminal Court MONITOR • November 1997 Page 9

Regional Reports, Continued

Arturo Carillo Suarez on the August PrepCom

During the recent PrepCom, mycolleague Hernando Valencia Villaand I were able to participate inalmost all of the PrepCom’s dailysessions, as well as in the vastmajority of the morning andafternoon strategy sessionsorganized by the CICC. I attendedboth Sunday NGO meetings;Hernando the first. In addition, weattended many of the lunchtimemeetings with interesteddelegations, especially those heldwith the Like-minded Group. Wedid find it difficult, however, toattend and participate in theplethora of other meetingsconvened by particular NGOs onspecific topics, sometimes due tothe fact that these meetingsconflicted with those organized byother NGOs or the Coalition itself.On the other hand, we took an

active role in the meeting held thefinal week of the self-called Africa-Latin America Working Group onNational and Regional Strategies.

The result of this activity wasvaried. On the one hand, bothHernando and I were obliged todeal rapidly with a slew of issuesand information related to the ICC.While an excellent learningexperience, we sometimes feltfrustrated given that it was our firsttime attending a PrepCom. AsHernando repeatedly pointed out, amore in-depth orientation for(relative) newcomers, at thebeginning and throughout thesessions, would have been veryuseful.

On another level, we were ableto establish ties with theColombian delegation to thePrepCom, through fairly regular

informal chats with the delegatesent up from the Ministry of Justicein Bogota. (No similar relationshipwas possible with the NY delegatesbecause they hardly attended thePrepCom!) We thus were able togauge the level of importanceattributed to the ICC process by theColombian government (notmuch!), as well as some of theofficial positions adopted to date inthis respect. I should point outthat the copy of the Colombiandelegate to the 6th Committeeintervention from last year, whichwas supplied to us by the CICC,was a crucial piece of information.

Finally, we were able tocontribute to the joint effort by theAfrica-Latin America WorkingGroup on Regional and NationalStrategies. This effort led to awritten and oral proposal with

regard to these strategies for studyby the plenary of NGOs, and foruse by the CICC and its memberorganizations in the course of theirwork at the national and regionallevels.

Another result of ourparticipation in the PrepCom wasthat we left New York committed toworking actively in favor of an ICCin our respective places ofresidence, Madrid and Bogota. Iwould like, personally and onbehalf of my institution, to thankthe CICC for the opportunity toparticipate in the recent PrepCom.It was extremely rewardingexperience, both professionally andpersonally.

Arturo Carrillo Suárez, ColombianCommission of Jurists

The International Criminal Court MONITOR • November 1997Page 10

Convention on Human Rights, theInternational Covenant on Civiland Political Rights, and the U.N.Convention on Torture. In varyingdegrees these conventions permitparties to file complaints againstthose that may be violating theircitizens ’ rights. With a fewexceptions from Europe, states donot complain against each other,either for fear of jeopardizing theirrelations with each other or ofterrorist reprisals. Without theNGOs espousing claims on behalfof individuals, all these instrumentswould be totally useless to thevictims of state atrocities. The ICCprosecutor thus needs to havepower to initiate prosecutions,acting on information supplied bythe Security Council, states,individuals and above all theNGOs.

Special mention must be madeof a meeting which I chairedbetween members of the Coalitionand SADC (Southern AfricanDevelopment Community)delegations. This was an extremelyproductive meeting. Unlike theirsuper-power counterparts, SADCdelegations were not only willingto explain their positions on

various issues but were also keenlyreceptive to the views of the NGOs.They solicited these views to enablethem to formulate or refine theirpositions. In SADC the Coalitionhas a committed and articulate ally.

Another productive meetingwhich, again, I had the honour toconvene and chair, was betweenAfrican delegations and the AfricanNGO representatives. It wasattended by the current Prosecutorfor the International CriminalTribunal for Rwanda, who sharedhis experience on the workings ofan international tribunal. In themain the discussions centeredaround the low level ofparticipation by African states inthe Prepcom. While there wasgreater African participation at theAugust prepcom than at theFebruary prepcom, far too manyAfrican seats were still empty. Lackof resources was reported to be themajor factor. Although a VoluntaryFund to assist less-developedcountries send delegates,information on this Fund did notreach the capitals of eligible statesor if it did, it reached there too latefor the August PrepCom.Complaints were also expressed bysome delegations about the

meagerness of the assistance. Another factor for the low

attendance of African states wasthat some of them did not regardthe ICC as a priority. In some casesthere were instances of poorcoordination between African themissions in New York and thecapitals, and between the ministriesof foreign affairs and of justice.There were also instances where themissions in New York lackedinstructions on key issues fromtheir capitals, with the result thatthey did not take any stand onthese issues during thenegotiations.

The Coalition for anInternational Criminal Court is amicrocosm of international civilsociety working together for theestablishment of the Court. In away it can also be said to representthe conscience of the peoples of theworld yearning for peace andjustice. I commend the men andwomen who conceived the idea ofthe Coalition. I am grateful to havebeen given an opportunity to play apart in it.

Dr. Daniel N. Nsereko is a Professorof Law at University of Botswana.

or not they are echoed in domesticlaw. After all, article 10 of theInternational Covenant on Civiland Political Rights states that “theessential aim” of any prison systemshall be “reformation and socialrehabilitation” of the offender.This point is important, as it servesto underscore the goals ofinternational justice, which is toboth combat impunity and topromote reconciliation of societiesthat have been devastated by warand human rights abuses.

William A. Schabas is professor oflaw and head of the law school at theUniversité du Québec à Montréal. Forfurther reading on the subject ofpenalties for international crimes, see:William A. Schabas, “Sentencing andthe International Tribunals: For aHuman Rights Approach”, (1997) 7Duke Journal of Comparative andInternational Law 461-517. WilliamA. Schabas, “War Crimes, Crimesagainst Humanity and the DeathPenalty,” (1997) 60 Albany LawJournal 736-770.

Nsereko, Continued from page 8 Schabas, continued from page 5

is the essential and ultimate socialmechanism by which women areforced into a subordinate positionas compared to men.”

About GenderThe term “gender” is not a

unitary concept. It has manycomponents as an “individualstatus” and as a “social institution.”For the sake of brevity, let us saythat:

s as an “individual status” itrefers to the ways in whichroles, attitudes, values andrelationships regarding girlsand boys, women and men areconstructed by all societies allover the world.

s as a “social institution” it refersto the ways in which thedivision of labor, kinship, socialcontrol, ideology, religion,imagery, (the culturalrepresentations of gender andthe embodiment of gender insymbolic language and artisticproduction) createdistinguishable social statusesfor the assignment of rights andresponsibilities.

As a structure, gender divideswomen in the home and in themarketplace, legitimizes authorityand the power imbalance betweenmen and women within everysocial class, ethnicity, age-bracketor other groups of people andinstitutionalizes the male and malevalues as the paradigm ofhumanity. Understanding howgender is constructed individuallyand socially helps us to understandthat masculinity is a construct too.

As we are creating a mechanism topunish those who commit theatrocities which have been labeledthe “core crimes,” it would beimportant to reflect on the fact thatsince the vast majority of thosewho commit the crimes or areresponsible for them are men, oneof the probably causes of thesecrimes may well be the socialconstruction of the masculinegender and therefore one of thesolutions may well lie in creatingmechanisms that will helpconstruct less violent men.

About Gender PerspectivesThe concept of “gender

perspectives” is based on theunderstanding that in all situationssome perspective of interpretingreality is present. Historically, themale perspective has beenregistered as the description ofobjective reality. In fact, we are sofamiliar with the male point ofview that even when aninterpretation is clearly biasedtowards the male view, thisinterpretation may be considered“objective” and is therefore notperceived as an interpretation at all.This happens to men and womenbecause both men and womenhave been socialized and educatedin the male perspective and becausethe social institution of gender hasstructured the male point of view asthe human point of view.

This is why even though lawand legal institutions reflect mostlythe male point of view, we considerthem objective or “gender neutral”when in fact they have created andmaintained many privileges for themale of the human species,institutionalizing impunity for

many crimes committed by mentowards women and children ofboth sexes.

Some people feel that theincorporation of genderperspectives is too light a task to bedealt with when the issue at handis the prevent of such egregiouscrimes as the ones we are dealingwith. It is precisely because thevast majority of laws, legalinstruments and institutions havebeen created without a genderperspective that the everydayviolations of women ’s humanrights are invisible to the law andthe most atrocious violations havebeen rendered trivial.

Because men and theirexperiences are considered orperceived as central to the humanexperience, women’s experiencesare considered or perceived as “toospecific” or particular to a “specialgroup.” Incorporating a genderperspective into our interpretationof reality, any reality, permits us tounderstand that men’s experiencesand their interpretation of them areas central or peripheral to thehuman experience as those women.

Fortunately, governments andthe UN have committed to theincorporation of genderperspectives in all activities relatedto human rights in many summitsand conferences including theHuman Rights Conference inVienna, as well as the Cairo andBeijing Conferences.

More specifically, theCommission on Human Rights inits Resolution 1997/44 encouraged“..those States participating in thedrafting of the statute of theInternational Criminal Court togive full consideration to

integrating a gender perspective...”This means that most

governments are committed to theidea of creating an ICC that will beresponsive to the needs andexperiences of both genders. Thiswill not happen if reference towomen or to “gender concerns” arementioned only in theorganizations aspects of the ICC ashas been suggested.

Women’s concerns should bementioned wherever needed byeven more importantly, genderperspectives must be incorporatedin all matters. This does not meanthat the statute should incorporatedetailed procedural or evidentiaryconcerns. However the statuteshould be drafted in such a waythat the later drafting of these ruleswill necessarily include women’sexperiences and concerns.

In drafting these generalprinciples, delegates shouldremember that discriminationbased on the sex of a person isprohibited in practically allInternational Treaties and in mostnational constitutions and yetsexual and gender-based crimesagainst women are probably themore “impune” of crimes. It isobvious then that a generalstatement is not enough. This iswhy the women ’s caucus isadvocating for a more thoroughincorporation of genderperspectives.

Alda Facio is the director of theWomen’s Caucus for Gender Justice inthe ICC. For more information aboutthe Women ’s Caucus for GenderJustice in the International CriminalCourt, contact them at +1-212-697-7741 or email <iccwomen@igc.org>.

Gender, continued from page 5.

“... There has been a revolutionin the last few years in usinginformation in support ofhuman rights worldwide. Theeffect of this revolution hasbeen felt in places like theDemocratic Republic of theCongo, Burma, Serbia andeastern Europe.”

Thomas Warrick, formerly of theCoalition for International Justice,

from the tribunal-watch listserv.

Recent months have seen more and moreinformation about the ICC coming out on theinternet. The home page of the NGO Coalition(http://www.igc.apc.org/icc) has receivedincreasing numbers of “hits” to its site everymonth, and subscribers to the icc-info emaillistserv are in the hundreds. Meanwhile, ourpartners have been busy putting their positionpapers, action alerts, and conference reportsonline.

Redress www.redresstrust.orgThe Redress Trust is a London-based NGOworking on issues of reparation and victim'srights. A summary of their recentrecommendations on inclusion of victim'srights in the ICC statute is available on the site.

Association Internationaldes Avocats de la Defensewww.hri.ca/partners/aiad-icdaa

This site contains materials in English andFrench about the recently formed InternationalAssociation of Defense Attorneys, a network ofdefense lawyers interested in the InternationalCriminal Court and the ad hoc tribunals. TheAIDAD web site explains the association’s goals,with a membership form to become moreinvolved with their efforts.

Universal Declaration ofHuman Rights 50thAnniversary Web Sitewww.udhr50.orgEstablished by the Franklin and EleanorRoosevelt Institute, the 50th anniversary of theUniversal Declaration of Human Rights(UDHR50) web site offers information, news,ideas and opportunities for human rightsadvocacy in the run-up to the 50th anniversaryin December of 1998. The site has a frequentlyupdated calendar of human rights events aswell as their vision statement and list ofendorsing organizations.

No Peace Without Justicewww.agora.stm.it/npwj

Contains information in French and English onthe ICC, including recent media stories on thecourt, government statements, an InternationalAppeal that you can sign online andconferences planned for 1997 and 1998.

Conferencia en AmericaLatina por la Creación deun Tribunal PenalInternational en 1998www.confepaz.org

This site contains valuable information aboutthe Court in Spanish, with documents andphotos from their recent Montevideoconference on the ICC. the conference wassponsored by the Inter-press Service, No PeaceWithout Justice, Parlamento Latinoamericano,and la Universidad para la Paz.

The International Criminal Court MONITOR • November 1997 Page 11

New Net Resources on the ICC

Other Web Sites

Amnesty Internationalwww.amnesty.org

Human Rights Watchwww.hrw.org

Institute for War Peace Reportingwww.iwpr.org.uk

Lawyers Comittee for Human Rights www.lchr.org

Transnational Radical Partywww.agora.stm.it/pr

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o

o

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The NGO Coalition for an InternationalCriminal Court (CICC) welcomes theparticipation of non-governmentalorganizations from all sectors of civil society.

To be a participating organization of theCoalition, a non-governmental organizationmust (1) endorse in principle the creation of ajust and effective International Criminal Courtand (2) wish to be involved at some level withthe efforts to create an ICC. The Coalition doesnot have individual members.

There is no membership fee to join theCoalition. However we encourage members tosupport the Coalition as they are able.

In general the Coalition does not takepositions, but serves to raise awareness of thepositions of its members.

To join the Coalition, or to receive moreinformation in the future, please fill out theform below and return it to the CICCSecretariat.

NGO Coalition for an InternationalCriminal Courtc/o WFM, 777 UN Plaza,12th FloorNew York, NY10017 USAPhone: 1 212-687-2176 Fax: 1 212-599-1332email: cicc@igc.org

About the NGO Coalitionfor an ICC

The main purpose of the NGO Coalition for anInternational Criminal Court is to advocate thecreation of an effective and just InternationalCriminal Court. The Coalition brings together abroad-based network of NGOs and international lawexperts to develop strategies on substantive legaland political issues relating to the proposed statute.A key goal is to foster awareness and support amonga wide range of civil society organizations: humanrights, international law, judicial, humanitarian,religious, peace, women’s, parliamentarian andothers. To these ends, we engage in the followingactivities:

• Convene the Coalition and its working groups,such as the ad hoc Tribunal/ICC funding workinggroup, information/media working group, and aworking group on US strategies.

• Maintain a World Wide Web page, internationalcomputer conferences and listserv email lists tofacilitate the exchange of NGO and expertdocumentation and information concerning the adhoc Tribunals and the ICC negotiations and tofoster discussion and debate about substantive issuesarising from the negotiations for establishing apermanent International Criminal Court.

• Facilitate meetings between the Coalition andrepresentatives of governments, UN officials andothers involved in the ICC negotiations.

• Promote education and awareness of the ICCproposals and negotiations at relevant public andprofessional conferences - including UNconferences, committee, commission andpreparatory meetings.

• Produce newsletters, media advisories, reviewsand papers on the developments and negotiations.

For More InformationName & Title

Organization

Address

Phone / Fax

Email

o My organization would like to be a participating organization of theNGO Coalition for an ICC.

o My organization endorses, in principle, the establishment of apermanent International Criminal Court, however does not wish tobe a participating organization of the Coalition.

o Please keep me / my organization informed about the work of theCoalition and progress on the ICC negotiations.

Please return this form to:

NGO Coalition for an ICCc/o WFM, 777 UN Plaza, 12th FloorNew York, NY 10017

This is a partial listing of ourmore than 300 participatingorganizations. A full list isavailable upon request to theCoalition. National networksrepresenting several organizationsare signified by bold-face type.

African Centre for Democracyand Human Rights

African Law Students-YoungLawyers Association

Al-HaqALTERLAWAmerican Bar AssociationAmnesty InternationalAotearoa / New Zealand

Foundation for Peace StudiesAsian Women’s Human Rights

CouncilAssociation des Jeunes Avocats

SenegalaisAvocats sans FrontieresB’nai B’rith International Baha’i International CommunityBangladesh Legal Aid and

Services TrustCanadian Network for an ICCCarter CenterCenter for Development of

International LawCenter for Women’s Global

LeadershipCentre d’Information et d’Etudes

sur le RwandaComisión para la Defensa de los

Derechos Humanos enCentroamérica

Committee for Humanitarians ofSri Lanka

Committees for the Defense ofFreedom and Human Rights inSyria

Committee of FormerNuremberg Prosecutors for anICC

Constitutional Rights ProjectCoordinating Board of Jewish

OrganizationsCroatian Law CentreDePaul Institute for Human

RightsDutch Human Rights Student

Association

EarthActionEgyptian Organization for

Human RightsEquality NowEthiopian Bar AssociationEuropean Law Students

AssociationEuropean Peace MovementEvangelical Lutheran Church in

AmericaFédération Internationale des

Ligues des Droits de l’HommeFranciscans InternationalGhana Committee on

Democracy and Human RightsGlobal Policy ForumHelsinki Citizens AssemblyHuman Rights InternetHuman Rights WatchHumanitarian Law CenterILA Committee on a Permanent

ICCInstitute for the Study of

GenocideInstitute for War and Peace

ReportingInstituto Latinoamericanos de

Servicios LegalesInterkerkelijk VredesberaadInternational AlertInternational Association of

Democratic LawyersInternational Bar AssociationInternational Commission of

JuristsInternational Council of Jewish

WomenInternational Criminal Defense

Attorney’s AssociationInternational Human Rights Law

GroupInternational League for Human

RightsInternational Peace BureauInternational Service for Human

RightsInternational Society for Human

RightsInternational Society for

Traumatic Stress StudiesInternational Women’s Human

Rights Law ClinicInternational Women’s Tribune

Center

Istituto Superiore Internazionale di Scienze Criminali

Lawyers Committee for HumanRights

Leo Kuper FoundationMalayala KalalayamManobik Unnayan ParishadMédecins Sans Frontieres No Peace Without Justice (TRP)Nonviolence InternationalNuclear Age Peace FoundationNürnberger

MenschenrecthszentrumOrdre des Advocats a la Cour de

ParisOxfam-UKPan-African Reconciliation

CouncilParliamentarians for Global

ActionPax ChristiProcedural Aspects of

International Law InstituteQuaker UN OfficeRedressRobert F. Kennedy Memorial

Center for Human RightsRussian Association Women

LawyersSOS BalkanesStudents Against GenocideUnitarian Universalist UN OfficeUnited Church Board for World

MinistriesUnited Nations Association -

JapanUNA - TamilnaduUNA - USAWar & Peace FoundationWashington Working Group

on the ICCWomen’s Caucus for Gender

Justice in the ICCWomen’s Institute for

Leadership DevelopmentWomens Environment and

Development OrganizationWorld Council of Churches

Commission of the Churcheson International Affairs

World Federalist AssociationWorld Federalist Movement -

Institute for Global PolicyZimrights

To Join the Coalition

Partial List of CICC Participating Organizations