Women's Caucus Report on the ICC Preparatory Commission held during November 29 - December 17, 1999.
The December Preparatory Commission meeting on the InternationalCriminal Court (ICC) has just concluded. We are sending this quick and short report to give you our brief assessment of the status of discussions at the meeting. A more detailed report will follow as soon as we are able to compile each day's notes and summarize them.We thank you all for your support and action on our alert that was sent out during the prepcom on Dec. 3, 1999. We cannot emphasize enough how useful and helpful these are when we are trying to get different state delegations to hear our views and voices. This series of prepcoms has been devoted primarily to developing two documents: (1) an Elements Annex defining the crimes within the Court's jurisdiction and (2) Rules of Procedure and Evidence.
At this point we request your reference to the alert. In the alert we discussed issues arising in the Canadian/German proposal for the Elements Annex relating to Crimes Against Humanity. That proposal was negotiated further without much discussion on the elements of the crimes of sexual violence. We had three major concerns with this proposal with regard to the sexual violence crimes: (1) that the elements of the crime of enslavement, and by extension sexual slavery, were too restrictive and should encompass all ways and means of acquiring, facilitating and exercising powers of ownership over a person; (2) the footnote in the crime of enforced sterilization (that it does not relate to birth control measures) must be removed; and (3) the crime of 'other forms of sexual violence' should be required to be comparable in gravity to all other grave crimes against the person and not only to the crimes of sexual violence, which might result in the requirement of physical impact or invasion and would also undermine the principle of non-discrimination on the basis of gender in Art. 21(3) of the Statute. In the draft rolling text adopted at the end of the prepcom, there are more footnotes to these sections to suggest that these are not final and will be re-visited in the next prepcom.
As noted in our action alert, a proposal on crimes against humanity was submitted in the second week of the prepcom by 11 countries of the Arab League - not as an official proposal of the entire League as had been anticipated. This proposal had elements in all crimes of sexual violence as well as persecution and imprisonment that essentially sought to exclude prosecution of these crimes when committed as a matter of religious and cultural norms and within the sphere of the family. The proposal is clearly contradictory to the statutory provisions of art. 21(3) of the ICC statute (which says that the application of laws be without discrimination on the basis of gender) and therefore should not have been considered or taken seriously at all. Many state delegations including delegations from the global south recognized this and made interventions to that effect.
Despite a wide recognition that this proposal was contradictory to the statute, some delegations entered into negotiations with the Arab group who sought to drop these restrictive elements in crimes of sexual violence in exchange for raising the overall threshold for all of the crimes against humanity. It is disturbing to note the willingness on the part of some key delegations - in addition to the United States which has made no secret of wanting a higher threshold for crimes against humanity -- to entertain such discussions. These discussions has created a situation where elements of sexual violence crimes are being used as a bargaining point to raise the threshold for crimes against humanity when in fact the 11 Arab countries proposal on sexual violence crimes had no basis to be considered in the first place. The result of these negotiations was that the draft rolling text did not include the elements excluding 'the family matters' but has language that substantially raises the threshold for all of the crimes against humanity.
Since many delegations raised an objection to this higher threshold, there is a footnote in the draft rolling text to say that any further discussion on lowering the threshold will bring back the discussion on the 'family elements' of the crimes of sexual violence. We believe raising the threshold will cause many situations of crimes against humanity-- including crimes of sexual violence -- to escape the net of the ICC. Precluding family situations from the definitions of crimes of sexual violence completely undermines the essence of these crimes and would prevent many situations of severe sexual and gender violence from ever being prosecuted.
Most of the negotiations between the 11 Arab countries and some delegations involved in drafting text took place in informal discussion and conversations. We are therefore particularly disturbed by the footnote in the draft rolling text on elements of crimes against humanity adopted at the end of the meeting as the text to continue work at the next prepcom. This footnote is in the elements of the crime of rape and makes an open and blatant admission of using the elements of sexual violence crimes as a bargaining chip to raise the threshold of all crimes against humanity in the chapeau.
We are appalled that the preparatory commission allowed for such an unprincipled way of going about discussion on elements of crimes against humanity in pursuit of achieving a consensus. We believe it to be unprincipled because linking the discussion of the threshold in the chapeau of crimes against humanity to elements of crimes of sexual violence is discriminatory and contradictory to the mandate in Art. 21(3) of the ICC statute. Such a link implies that the 'family elements' contained in the proposal by the 11 Arab countries for crimes of sexual violence are somehow justifiable and could therefore be excluded from being considered crimes against humanity. Secondly, both the chapeau and the elements of crimes of sexual violence are separate issues and merit separate discussion without any link to each other.
Simultaneously, in the negotiations of rules of procedures and evidence, discussion relating to issues of admissibility and jurisdiction were made difficult by the U.S. proposal. This proposal on rules for Article 17 and 18 of the statute essentially undermines the independence of the Prosecutor and seriously burdens the Prosecutor and the Court with procedural delays that could eventually make the court ineffective and incapable of serving its purpose of ending impunity and doing justice. There are states that are opposed to such weakening of the court's ability to function and the rules proposed by the U.S. are not receiving much support.
In the negotiations on Rules of Procedure and Evidence, the discussion on rule 6.5 on evidence in crimes of gender and sexual violence remained inconclusive and will be carried over to the next prepcom. The two issues under discussion are the issues of consent and sexual conduct as evidence. The issue of consent has been made difficult by the elements of crime of rape, which essentially do not conceive of the crime of rape in non-coercive circumstances. The Caucus position is to prohibit or effectively restrict admission of such evidence. The draft rolling text on this rule has reverted back to the original rule of prohibition of such evidence and discussion will continue in the next prepcom.
Overall, at this prepcom, the Caucus experienced a feeling of loss of influence in the process, particularly as compared to the last prepcom. We are still assessing the reasons for such loss but believe this to be largely due to the process of negotiations and discussion itself. At some level, no matter how successful our lobby strategies are, in the end it is only a few delegations sitting in the informals (where NGOs are not allowed), a handful of delegations drafting the rolling text and some powerful delegations that exert influence in a substantive way. This process often leaves out views of delegations that may be less powerful and more sympathetic to gender issues.
Despite the above, we are pleased that none of the above discussions have been finalized and will continue in next prepcom. The next prepcom is scheduled from March 13-31, 2000. We believe the most effective advocacy strategy for the next prepcom in the light of our experience at this prepcom will be to influence delegates in the capitals by groups in their respective countries. Further, an inter-sessional meeting has been announced and will be held in Siracusa from January 31-February 5, 2000 to discuss some of the elements of crimes against humanity and the mental elements for the crimes.
This provides us with an opportunity to influence the delegates on our issues in a more informal setting before the March prepcom. Since most of the issues at this prepcom remained inconclusive, these will continue to be issues of struggle for us at the next prepcom.
[Source: Women's Caucus for Gender Justice. December '99 ICC Prepcom Report. 27dec99]
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