From 29 November to 17 December 1999, the third Session of the Preparatory Commission (PrepComm) for the International Criminal Court was held at the United Nations Headquarters in New York. According to resolution F, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court on 17 July 1998, the PrepComm focused on two instruments necessary for the functioning of the Court: the Rules of Procedure and Evidence and the Elements of Crimes. It was also discussed the definition of Crime of Aggression.

As regards the Rules of Procedure and Evidence, the PrepComm considered rules related to the following Parts of the Rome Statute of the International Criminal Court: Part 2 (Jurisdiction, Admissibility and Applicable Law); Part 4 (Composition and Administration of the Court); Part 6 (The Trial); Part 7 (Penalties); Part 8 (Appeal and Revision); Part 9 (International Cooperation and Judicial Assistance) and Part 10 (Enforcement).

A rolling text PCNICC/1999/WGRPE(2)/RT.1 on rules 2.1 through 2.23, covering articles 11, 12, 13(b), 14, 15, 17, 18 and 19 was introduced during the first week of the PrepComm. There were a few suggestions that will have to be taken up at the next PrepComm session (13-31 March 2000).

RULE FOR ARTICLES 11 (JURISDICTION RATIONAE TEMPORIS) AND 12 (PRECONDITIONS TO THE EXERCISE OF JURISDICTION)

Based on a combined Bosnian and French proposal this rule addresses the jurisdiction of the Court granted by a non-State party through a declaration made under Article 12(3). Article 12(3) provides that a non-State party may lodge a declaration with the Registrar to accept the exercise of jurisdiction by the Court with respect to "the crime in question". Rule 2.1 clarifies this, stating that such a declaration will provide the Court with jurisdiction "with respect to the crimes referred to in Article 5 of relevance to the situation". There was general agreement by the majority of countries on the substance of this rule and it was thought that although it could be said to be outside the strict letter of the Statute it was definitely within the spirit. This rule was referred back to the original drafters, Bosnia and France to be re-drafted in consultation with those States who had drafting suggestions.

As regards article 15, on the powers of the Prosecutor, the main argument concerned whether a State could, at the Art. 15 stage, make a challenge to the admissibility. It was strongly argued that there was no contemplation for the involvement of a State. This was seen by many States as the pre-Trial proceeding where the Prosecutor is simply seeking authorisation from the pre-Trial Chamber to commence an investigation. The Prosecutor may not at this time be aware of the whole situation or have identified any suspects. Therefore, it was thought of as impossible to see how a State could have a place at this time as there is, as yet, no case to challenge. States can only have a place after the admissibility has been decided and the Court is established as having jurisdiction. It was further argued that if States were invited to be involved at this preliminary stage (as they were in the French Proposal) then this could lead to two challenges against the admissibility - one at the Article 15 stage by the State and then again at a later stage under Articles 18 and 19 when the State or accused (who may not have been identified at the Article 15 stage) is brought before the Court. Article 19(4) allows for challenge only once, except in exceptional circumstances. A State could use the finding or identification of an accused as exceptional, this would provide delays and place burden on the Court.

The strongest argument for States being allowed to object and challenge at this point was that it was contemplated in the Statute in the language of Article 19(5) which provides that challenges to admissibility by a State should be made at the "earliest opportunity". The question of a State which is about to collapse was also raised as a basis for why States should be allowed to challenge at this early stage. Objections to these arguments were that there was a difference in allowing a State to object at this stage and having a rule which expressly invites States to participate at this stage. Further, if needed the situation of a collapsing State could be seen as an exceptional circumstance and the issue could be decided at the discretion of the judges when it arose. The legal policy considerations and lex ferenda of Article 15 were also questioned, the aim of which, it was decided, were to avoid overburdening the Court at this early stage. These policy considerations were not consistent with State participation at the Article 15 stage.

Rule 2.10 covers Prosecutor notification to States parties and States that would normally exercise jurisdiction after the Prosecutor has decided to commence an investigation as contained in Article 18(1). Most delegations supported the wording as contained in the informal paper. Several delegations requested that the rule be deleted because it added nothing to the Statute and as worded may actually give rise to additional litigation.

Rule 2.11 covers a State's request for deferral as referenced in article 18(2) and the information provided by the State to the Prosecutor. Most delegations welcomed the rule but wanted the information given by a State qualified as "detailed", "sufficient", "detailed", or "full." It was acknowledged that States would have to give the Prosecutor more detailed information on investigations than the Prosecutor would have to furnish to States and it was further suggested that the State should supply information to the Prosecutor at the same time it requests deferral.

Rule 2.12 applies to applications by the Prosecutor to investigation notwithstanding a State's request for deferral. The rule requires applications by the Prosecutor to the pre-Trial Chamber to be in writing and contain the basis for application as referenced in article 18(2). Some delegations felt the rule went beyond the Statute while others agreed with the wording of the rule as it is. Discussion also referred to "Court" as defined in the Statute to include all three organs and not just the Chambers.

Rule 2.13 governs the procedure to be used on the pre-Trial Chamber when deciding on applications by the Prosecutor to investigation notwithstanding a State's request for deferral and corresponds to article 18(2). Most delegations questioned reference to the Chamber being able to hold a hearing because they felt it created an onus to have a hearing but that a hearing at this preliminary stage was too onerous and would create undue delay in the proceedings. Some delegations thought the rule superfluous, given Rules 2.11 and 2.13, and recommended retention of the portion of the rule relating to the pre-Trial Chambers examination of the Prosecutor's application and issuing its decision thereon.

Rule 2.14 corresponds to article 18(3) which governs prosecutorial review six months after the date of a State's deferral. The rule requires any application made by the pre-Trial Chamber after the Prosecutor's review to be in writing and to contain the basis for application. Several delegations emphasised that the review was by the Prosecutor and only if he felt an investigation should occur could he then make application to the pre-Trial Chamber. After making application, then the procedure should be the same as for all applications by the Prosecutor to initiate an investigation as in Rule 2.13. Several delegations proposed deletion of the first sentence of 2.14(a) and proposed different language, while retaining 2.14(b) and (c). Many delegations proposed combining Rules 2.14 and 2.15 and re-lettering the paragraphs of 2.15 as 2.14(d) and (e) so that after prosecutorial review and decision to commence an investigation, the Prosecutor would then apply to the pre-Trial Chamber to initiate investigation, with the pre-Trial Chamber to determine the appropriate proceedings, decide on the application and so inform the Prosecutor and State of its decision. It was generally agreed that the procedure should be the same as for an initial application by the Prosecutor and that a review situation as envisaged in Article 18(3) would arise only in two conditions, namely, after an earlier application or after a deferral without a previous application.

Rule 2.15 corresponds to article 18(6) and is meant to operate in exceptional circumstances so that the Prosecutor can seek to apply to the pre-Trial Chamber to be able to continue to take steps to investigation and preserve evidence. Most discussion focused on the importance of any proceedings being ex parte because otherwise would destroy the purpose of the rule.

Rule 2.16 covered the situation of the Prosecutor receiving more than one request for deferral and requiring that each deferral be dealt with on a "first come, first served" basis. Most delegations requested deletion of the rule on the basis that the Court should not be put in the position of deciding which State should investigate if more than one request for deferral was received. Some delegations suggested that multiple requests for deferral should be based on the gravity of the offence.

Rule 2.17 corresponds to article 19 and concerns the procedure used by the Court for challenges based on admissibility or jurisdiction. The rule requires all challenges to be in writing and allows the Court to adopt appropriate measures for the proceedings. Some delegations requested that all challenges besides being in writing should contain reasons. Discussion focused on the difficulty of addressing both admissibility and jurisdiction in the rule but that situations may arise where admissibility is so obvious that the Court may never get to address the issue of jurisdiction. Delegations also questioned the ability of any State concerned being able to participate in the proceedings since only States directly concerned to the question should participate.

Rule 2.18 corresponds to article 19(3) and allows victims representations to be in any form and further addresses how victims will be notified of the Court’s proceedings. Notice is not to endanger the integrity of the proceedings. The Registrar is to provide a summary of the proceedings to victims so as to help them focus their submissions/representations.

Rule 2.19 corresponds to article 19(3) and governs the manner in which the Registrar shall inform those who have referred a situation that proceedings regarding challenges to jurisdiction and admissibility have commenced. Delegations made a few proposals to clarify the rule’s language.

Rule 2.21 underpins article 19(8) and allows the Prosecutor to pursue necessary investigative steps and mirrors the rule for preservation of evidence under article 18.

Rule 2.23 is meant to cover the situation where the Court has ruled it does not have jurisdiction or that the case is inadmissible but it has custody of the accused. The rule’s drafters felt that release was inappropriate as was transfer to a non-party State and that this situation did not apply to issues of jurisdiction. The other problem was multiple applications on admissibility with the Court avoiding choosing winners from among various States. Thus the rule focuses on returning the person back to the transfer State.

Part 4 of the Statute is related to the "Composition and administration of the Court". This part of the Statute aims at regulating the activity of the organs of the Court such as the Presidency, Chambers, Office of the Prosecutor and Registry. During the proceedings of the Preparatory Commission held during the summer, the attention of the delegates was focused on rules related to the removal from offices of judges, Prosecutor or deputy Prosecutor, the Registrar and the Deputy Registrar, in cases of serious misconduct and serious breach of duty to be applied and disciplinary measures to be taken against them. Different topics have been dealt with during the Preparatory Commission recently concluded. During the last working group held the 16 of December a relevant number of rules, after intense negotiations, have been approved, at first reading. These rules describe the organisation and functions of the Registrar with regard to the Court, with regard to the victims, the witnesses and the defence. A Victims and Witnesses Unit has been established and several function have been assigned to it. A number of rules create the figure of the so-called "single judge" appointed by the pre-Trial Chamber. In addition, a number of rules regarding excusing, disqualification, death and resignation of judges and Prosecutor have been approved.

A rolling text was introduced during the first week: PCNICC/1999/WGRPE(4)/RT.1/Add.1. The discussion on the rules contained in this document began during the first week of the Preparatory Commission but no agreement was then reached. During the last week a compromise was reached during informal consultations and several rules have been approved at first reading.

According to rule 4.1.5, a judge, the Prosecutor or a Deputy Prosecutor have to make a confidential request in writing to be excused from sitting in a case. There is no a specific list in the rules that explain when a judge should excuse himself. Accordingly reference should be made to the general provision contained in art. 41(2) of the Statute which indicates that a judge should not participate in case where his/her impartiality might reasonably be doubted on any ground.

Rule 4.1.6. indicates five grounds that lead to the disqualification of a judge and can be applied, mutatis mutandis, to cases of excuse. In order to obtain the disqualification of a judge, any judge can fill a request to the Presidency. If the absolute majority of the other judges agree on it, the judge is disqualified. According to rule 4.1.6, disqualification can be requested for when it appears that a judge has personal interest or has already been involved in cases in which the accused was an opposing party or when he could have already formed an opinion on the case at hand or when he expressed an opinion on the case or when he is actively involved in an organisation involved in the case. This list of cases of disqualification may be revised at the second reading. Paragraph 3 of rule 4.1.6 points out, confirming the analogous provision contained in the statute (Art. 41 (2) (c)) with regard to judges, that decisions on disqualification with regard to the Prosecutor and Deputy Prosecutor should be taken by an absolute majority of the judges.

Rule 4.1.8 relates to the case of death of a judge. According to this rule, the Presidency shall notify the President of the Bureau of the Assembly of the States Parties in writing of the death of a judge. Notifications should be made also to the Prosecutor, to a deputy Prosecutor, to the Registrar or to the Deputy Registrar.

According to rule 4.1.9. when a judge, the Prosecutor or the Deputy Prosecutor, the Registrar or the Deputy Registrar, resigns, he or she should endeavour to give, at least 6 months in advance notice of the date on which his/her resignation will take effect. Before resignation a judge should do every effort to accomplish his duties in relation to unfinished proceedings.

Document PCNICC/1999/WGRPE(4)/RT.2/ADD.1, presented during the third week of the PrepComm, contains several provisions that deal with distinct, although related, subjects.

In this paragraph it is stated that the Registrar will be the channel of communication of the Court. This rule involves that it is up to the Registrar the daily communication between the Court and a number of subjects that rotate around the Court such as States, counsels, victims, media and NGOs. In addition, the Registrar is in charge of assuring the internal security of the Court while the security outside the Court is left to the hosting State. The Registrar as organ in charge of the non-judiciary activity of the Court will maintain a database containing all the particulars of each case brought before the Court. The activity of the registry will be coordinated by a set of rules prepared by the Registrar and approved by the presidency.

According to point 1 of paragraph C the registry will perform 7 functions. These include: informing victims of their rights under the Statute and the rules, assisting victims and witnesses by informing them on everything that concerns their interests, assisting them to obtain protective measures, assisting victims to organise their legal representation, assisting victims to participate in different phases of the proceedings, assisting witnesses to testify before the Court and notifying victims in a timely manner of the key decision of the Court.

According to point 2 of paragraph C, a Victims and Witnesses Unit is established and this unit will include personnel with specific expertise. There will be experts of witness protection and security, legal and administrative matters including areas of humanitarian and criminal law, logistics administration, psychological expertise in criminal proceedings, gender and cultural diversity, children, elderly persons, social work and counselling, health care, interpretation and translation. In other words, the victims and witness unit should be a team of experts that deal with every possible case that may arise in the life of the Court. Several delegations were against the fact to have a unit composed of so many people. Accordingly, the use of the wording "may include, as appropriate" reflects these concerns and leave open to the Registrar the determination of the number of people to be employed in the Victims and Witnesses Unit.

Point 3 of paragraph C entitled "Functions of the Victims and Witnesses Unit" indicates that the victims and witnesses shall serve the Court and the Defence in all matters related to the protection afforded to all witnesses, victims who appear before the Court, and others. In addition the Unit shall perform 8 functions. These include: recommend to the organs of the Court the adoption of the protection measures, informing victims and witnesses of their rights, assisting victims to obtain legal advice, acting in cooperation with the States, formulating long and short term plans for the protection of witnesses, making available to the Court training in issues of trauma, sexual violence, security and confidentiality, recommending the elaboration of a code of conduct emphasising the vital nature of security and confidentiality for investigators of the Court. The functions listed reproduce, in some cases, those already assigned to the Registry. Accordingly, following the view expressed by some delegation, an ad hoc footnote has been added to stress the need for a review of this rule to avoid repetitions.

Point 4 of paragraph C, "Appointment and qualification of counsel", points out the requirements to be a counsel in the proceeding of the ICC. Indeed, the rule foresees that the counsel should have an established competence in criminal law and procedure and have the necessary relevant experience. In view of the foregoing, it is left to the judges to determine whether, having regard to the circumstance of the case at hand, the counsel appointed meets the necessary requirements.

Point 5 of paragraph 5 "Responsibilities of the Registrar related to the rights of the defence" gives to the Registrar the task of "organising the staff of the registry in such a manner as to promote the rights of the Defence". Several delegations, bearing in mind that ICTY has a Defence unit, advocated strongly the need for an a hoc Defence unit as a distinct body within the registry. Some others did not. Accordingly, the rules as drafted while not establishing the Unit, leave to the Registrar the possibility to establish such a unit whether he deems it necessary to promote the rights of the Defence. In promoting the right of the defence, the Registrar will facilitate the protection of confidentiality, provide support, facilities and information to counsels and assist arrested persons in obtaining legal advice.

In addition the Registrar is in charge of ensuring the professional independence of defence counsel and the development of a Code of Professional Conduct for counsel appearing in front of ICC. In negotiating these provisions, several delegations challenged the right of attributing such a role to the Registrar. They claimed that it is up to the judges to assure the rights of the defence. Indeed, the right of the defence is an element of the principle of equality of arms which is the other face of the principle of fair trial which, according to the Statute, should be assured by the judges. Probably, this issue will be raised again at second reading stage.

Point 6 of paragraph 5, "Assignment of counsel to indigent persons", provides that the Registrar will maintain a list of counsels that fulfil the requirements described above, available at the request of the indigent person. This list will be created in consultation with any independent representative body of counsel and following the criteria of accused free choice of counsel and the needs of an accused in raising a defence.

The last point (7) of paragraph 5 describes the procedure for the adoption of the Code of professional conduct. A draft text will be prepared by the Presidency following a proposal by the Registrar in consultation with the Prosecutor. The Code, which at this stage is still a draft, will then be transmitted for the purpose of adoption to the Assembly of States parties. A State party, the judges by an absolute majority or the Prosecutor can propose amendments to the Code. The procedure for amending the text of the Code of Conduct has not been specified.

Document PCNICC/1999/WGRPE(4)/RT.3/ADD.1, presented during the third week of the PrepComm, provides rules on a number of distinct elements.

Article 39 of the above document, a pre-Trial Chamber shall designate a single judge on the basis of pre-established criteria. The name "single judge" has been chosen not only because the expression is contained in the Statute, under Art. 39, paragraph 2 (b) (iii), but also in order to avoid confusions with the so called "reporting judge" who was the subject of a proposal not accepted by the majority of the delegates. The competence of the judge is described in a negative way. Accordingly, the single judge will deal on each question on which no decision by the full Chamber is expressly provided for by the Statute or by the Rules.

According to article 50, there are a number of decisions that will be published in the official languages of the Court: Arabic, Chinese, English, French, Russian and Spanish. These decisions include: all the decisions of the Appeals Division, the decisions of the Court on its jurisdiction or on the admissibility of a case, the decisions of a Trial Chamber on guilt, sentencing and reparations to victims and the decisions of the pre-Trial Chamber. This list is subject to further negotiations because it seemed very difficult to have a complete list and, in addition, many delegates were in favour of a different approach. Indeed, they argued, following the ICTY approach, that only for specific reasons of confidentiality the decision of the Court should not be published. In addition, the second paragraph of this rule leaves to the Presidency the faculty of publishing other decisions concerning issues of general interest. Article 50 includes also a number of provisions on the working languages of the Court. Accordingly the Presidency shall authorise that an official language of the Court be used as working language when this language is understood and spoken by the majority of those involved in the case and the Prosecutor or the Defence so request. This rule has been the object of an intense debate and there is a footnote added to it, which suggests that it has been too broadly defined. Indeed it is difficult to understand exactly which people the expression "the majority of those involved in the proceedings" refers to. This rule includes also a criterion for choosing the adoption of a working language and this is to render the proceedings more efficient. To the end of article 50, two provisions have been added: the first assigns to the Court the duty to arrange for the translation and interpretation services necessary to the proceedings; the second recalls that the Court, in publishing any document, should ensure to protect confidentiality of the proceedings and the security of victims and witnesses.

Rule 6.5 is a highly contentious rule which was considered extensively at this PrepComm. The rule as presently drafted aims to stipulate procedures to be followed by the Court in cases of rape and sexual violence where the accused wishes to assert that the victim consented. The rule states that in such situations, the accused must first give notice to the Court, describing the substance of the evidence he intends to introduce or elicit from the victim. The accused must set out what the relevance of the evidence is to an issue in the case.

Before the evidence is admitted, the rule stipulates that the Court will hold an ‘in camera’ hearing on whether, in effect, the consent was genuine, and whether it was of sufficient probative value to be admitted.

The rule was introduced by the Canadian delegation who explained that it was necessary in order to protect victims of sexual violence from being questioned about the sexual contact in Court thereby suffering further trauma as a result of the questioning. The aim of Rule 6.5, is therefore to weed out those cases where the defence of consent is not viable and highly relevant in an ‘in camera’ hearing with the aim of protecting the victim from any questioning by the accused on the issue of consent.

Some delegations, notably Australia, Bosnia, and the USA were in favour of the rule as set out by the Canadian delegation. Other delegations such as the UK and the Russian Federation were concerned about the accused having to prove that the defence of consent was "highly" relevant before being able to introduce the evidence. Some delegations such as Israel and Singapore were opposed to the current formulation of Rule 6.5 on the basis that it has the effect of reversing the burden of proof and is thereby in contravention of Article 66 and the presumption of innocence.

No consensus could be reached during extensive negotiations on Rule 6.5 and as result it will be considered further at the next PrepComm.

The footnote to Rule 6.5 was also considered, namely whether the victim’s prior or subsequent sexual conduct could ever be admitted as evidence by the accused and whether there should be a rule prohibiting the accused from adducing such evidence. Like Rule 6.5, the issue was highly contentious.

The delegations of Australia, France, Canada and Bosnia were in favour of such a rule on the basis that the victims prior sexual conduct would never be relevant in the kind of cases before the ICC. However, the delegations of the Netherlands and Singapore were opposed to having an absolute rule prohibiting the introduction of such evidence in every case. They thought it better to vest the Court with a discretion to determine if and when such evidence should be admitted if required for the fairness of the proceedings.

The rolling text on rule 6.5 was presented during the third week of the PrepComm. It is contained in document PCNICC/19999/WGRPE(6)/RT.1.

Discussion here centred around a series of issues including the factors to be taken into account in the determination of a sentence; the ability of the Court to impose a financial penalty on accused persons in addition to a term of imprisonment, the maximum amount for such a fine and the consequence of a failure to pay a fine; the question of forfeitures; and the relationship between the Court and the Trust fund (PCNICC/1999/WGRPE(7)/RT.2).

The issue of the factors to be taken into consideration in the determination of sentences dealt with the question of mitigating or aggravating factors. Debate concerned whether there should be one Chapeau text or two separate lists for the mitigating and aggravating factors, whether these list(s) should be exhaustive or illustrative, and whether to require that the Court "shall" or "may" take such factors into consideration. Several States expressed concern that the principle of legality required all aggravating factors to be definitively listed and thus called for an exhaustive list. Other States questioned the appropriateness of listing factors such as ‘attempt’ as a mitigating factor, stating that in crimes of mass violence the fact that there may be survivors may be more a consequence of sheer coincidence rather than deserving of any credit to the perpetrator. The position as reflected in the final draft text expresses the need for flexibility on the different factors concerned and the need not to be too binding and constraining, but rather provide a framework to guide the judges. As formulated, the Court in its determination of the sentence must bear in mind the totality of any sentence of imprisonment and fine; must ‘balance’ aggravating and mitigating factors, and ‘give consideration’ to a number of general factors such as the extent of damage caused and harm caused to victims and their families, the degree of intent, but also factors such as age, education and social and economic condition of the convicted person. On the issue of two lists, an attempt at a compromise was reached that allowed for an element of certainty and clarity, while restraining the degree of flexibility permitted judges in dealing with unforeseen circumstances arising in individual cases. As such, there are two lists which mention specific grounds which the Court ‘shall take into account’, but which remain non-exhaustive, but the way this non-exhaustive nature is formulated is different for each list. The first refers broadly to ‘mitigating factors such as….’, whereas the second contains a sub-clause referring to ‘other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned’. While the distinction may appear slight, the intention was to make the non-exhaustive clause more restrictive in the case of aggravating factors.

A number of States also requested the inclusion of a reference to life imprisonment, given the difficulty with their respective constitutions, stating that such penalty would specifically be justified by the extreme gravity of the crime and the individual circumstances of the accused.

The first issue under consideration under fines dealt with the criteria to be applied in determining whether to order a fine. Rule 7.2 encompasses these debates by specifying that the Court must first determine whether imprisonment is a sufficient penalty, and requires the Court ‘to take into due consideration’ the financial capacity of the convicted person, including any orders for forfeiture and reparations, as well as other factors referred to in the previous rule. The method of payment may be by lump sum or by instalments. Meanwhile, the Court is given the option of calculating the amount of the fine according to a system of daily fines. This last provision arose out of a detailed proposals by Spain in document DP. 2 and Brazil and Portugal in document DP. 4 based on somewhat elaborate methods of calculation. The sub-rule survived as Rule 7.2(4), but in an unelaborated form that may not prove of particular utility for the Court.

The working group dealt at length on the thorny question of whether the Rules should specify a maximum amount that a person would be liable for, seen as a fundamental aspect of predictability, nulla poena sine lege, by several States. France proposed specifying a maximum monetary value in the Rules, while Spain and Brazil proposed a system for the calculation of a maximum based on the circumstances of the accused along a daily fines model. The final draft of the chair resolved the issue by way of a maximum percentage amount (75%) to be imposed on the ‘value of the convicted person’s identifiable assets, liquid or realisable, and property’. This thus gives predictability through the specification of a maximum percentage, but allows for flexibility by the judges on a case by case analysis.

Also difficult was the issue of whether a person would be liable for an additional term of imprisonment for failure to pay a fine, including the maximum term for such a secondary term of imprisonment. Some questioned whether such an additional term would consistent with the Statute, while others argued that if there was no consequence for a failure to pay, the enforcement of fines would become meaningless. A clarification was also brought that such punishment should be only in cases of wilful and voluntary withholding of funds. The final text in Rule 7.2(5) allows the Presidency, on its own motion or at the request of the Prosecutor, satisfied that all available enforcement measures (under Article 109) have been exhausted, ‘may as a last resort extend the term of imprisonment for a period not to exceed a quarter of such term or five years, whichever is less’. Such a determination ‘shall take into account the amount of the fine, imposed and paid’ and shall not be applicable in the case of life imprisonment, nor lead to a total period of imprisonment in excess of 30 years. The Court must, additionally, hold a session in camera to obtain the views of the sentenced person and the Prosecutor, and the Court must warn the convicted person that an extended period of imprisonment may result from of a failure to pay any fine imposed.

Rule 7.3 specifies that forfeiture orders should be considered in separate hearings in order to consider evidence that may be specific to the identification and location of assets and other proceeds derived directly or indirectly from the crime. To hold such hearing as part of the original hearings before the Trial Chamber, it was felt, would unnecessarily lengthen and possibly confuse proceedings, since the factors and evidence under consideration could be considerably different to those under examination in a determination of the guilt of the accused. In such hearings, any bona fide third party with interests will be able to submit evidence, but the question of how to notify and identify such third parties remains at issue.

The last rule under consideration dealt with the Trust Fund. Article 79.3 specifies that the Trust Fund ‘shall be managed according to the criteria to be determined by the Assembly of States Parties’. At issue in the working group was whether the Rules could deal with substantive management aspects, such as enabling the Court could make orders directing the Trust Fund to make specific awards to victims, and leave only the administrative duties of the Trust Fund for formulation by the Assembly of States Parties. It was decided that the issue should be dealt with by the Assembly of States Parties, but the chair suggested that the debate was a useful pre-discussion of an issue that will pop up in future consideration by that body. The only part of the original proposed French rule that was retained was one enabling the Court to request the representative of the Trust fund to submit written observations to it before making an order.

During the third week a rolling text was introduced on Part 8 Section 4 on Revision of conviction or sentence: PCNICC/WGRPE(8)/RT.1.

Rule 8.11 sets out the procedure to be followed by the Court in cases where a convicted person seeks revision of conviction or sentence under Article 84(1) of the Statute. The proposed rule is an amalgamation of proposals by the delegations of France and Australia. The rule is essentially a procedural rule setting out the initial process and steps the Court should take in determining if an application is meritorious.

During discussions on the rule, most delegations were of the view that since the first stage of the appeal was a simple process, the corresponding rule should also be simplified. The French and Australian proposals had envisaged an oral hearing to determine if an application was meritorious. However, most delegations were of the view that such a stage was unnecessary. Accordingly, Rule 8.11 merely stipulates that the Appeals Chamber will issue a written decision. The rule to emerge from discussions is a procedural rule setting out what steps the Court should take and how to make a decision on whether an application under Article 84(1) is meritorious. The determination of whether an application is meritorious will be made by a majority of the judges of the Appeals Chamber.

Rule 8.12 is concerned with the procedure the Court should follow after the Appeals Chamber has found an application to be meritorious under Rule 8.11. The Appeals Chamber will hold an oral hearing, allowing all relevant parties to make submissions. At the hearing the relevant Chamber will determine whether the conviction or sentence should be revised. Again, as with Rule 8.11, most delegations were concerned that Rule 8.12 should set out a simple procedure for the Court to follow. Accordingly, the rule emerged from discussions is a simple procedural rule setting out what course should be followed in making a determination, such as obliging the Court to hold an oral hearing once an application is deemed meritorious, the granting of the relevant Chamber making the determination with the same powers as the Trial Chamber under Part 6 of the Statute and its corresponding Rules. The determination shall be taken by a majority of judges and shall be supported by written reasons.

During the third week a rolling text was introduced on Part 8, Section 5 on Compensation to an arrested or convicted person: PCNICC/WGRPE(8)/RT.2.

Section 5 has three rules, 8.13, 8.14 and 8.15. It sets out the procedure to be followed by the Court in cases a person wishes to seek compensation on account of being wrongly arrested or convicted.

Rule 8.13 stipulates that the request for compensation must be made in writing to the Presidency. The President will then designate a Chamber of the Court composed of three judges to make the determination. Some delegations were concerned that the initial draft of the rule did not stipulate that the matter was to be passed on to an actual Chamber of the Court to consider the request. These concerns were accordingly reflected in the rule to emerge from discussions. Sub-paragraph (b) of 8.13 stipulates that the request for compensation may not be made more than 6 months after the person making the request was notified of the grounds giving rise to his claim for compensation, namely the unlawfulness of his arrest, reversal of conviction or the existence of a grave miscarriage of justice. The person making the request can be assisted by counsel. Some delegations were concerned about the inclusion of a six month time limit within which the person is to make his application for compensation. However, these concerns were not reflected in the rule to emerge from discussions.

Rule 8.14 stipulates that the Prosecutor must be informed on any application for compensation and should be able to make representations. The Chamber designated shall hold an oral hearing and the decision taken by a majority of judges.

Rule 8.15 sets out what factors the Court should take into consideration when determining the amount of the compensation to the person, such as the consequences of any miscarriage of justice on the situation of the person making the request.

Regarding part 9 of the Statute, a discussion paper was submitted by the co-ordinator during the second week of the PrepComm on rules relating to article 87: PCNICC/1999/WGRPE(9)/RT.1

On rules relating to art. 87 the text presented, was mostly accepted: it establishes which are the organs responsible for the transmission and receipt of any communication relating to international cooperation and judicial assistance. It is the Registrar the main responsible, as he shall transmit the requests for cooperation and shall receive all information and subsequent documents from requested States; the same organ shall be the recipient of all communications concerning changes in designation of the national channels deputed to receive request for cooperation. Consequently the national authority charged with receiving requests for cooperation will have to be provided of all important information (rule 9.2). In case the State Party has more than an official language it will be obliged to present all documents in any of its official languages. Some discussions were held on the case in that the requested State party has not decided an official language. A general consensus was expressed with regard to a translation of the request of cooperation into one of the working languages of the Court. In the same way a translation is requested when a State non party to the Statute decides to assist the Court (rules 9.3; 9.4).

On rules relating to articles 89 to 101 of the Statute, a discussion paper was submitted by the Co-ordinator during the second week of the PrepComm: PCNICC/1999/WGRPE(9)/RT.2

The case of challenge to admissibility of a case before a national court has been reworded during the last week of the PrepComm, so that the Chamber of the Court, given certain conditions (art. 89, paragraph 2) concerning the ne bis in idem challenge brought by a person, can ask for obtaining all relevant information from the requested State. The Court may transmit the request for transit by any medium capable of delivering a written record. It has been provided the possibility for a temporary surrender: the person shall be kept in custody during his or her presence before the Court and shall be transferred to the requested State once his or her presence before the Court is no longer required and, at latest, when the proceedings have been completed. The last rule, 9.9, concerns the arrangements for surrender. In particular it fixes the relations between the requested State and the Court, precisely the Registrar will keep all the necessary contacts.

The request for surrender will have to be accompanied by a complete translation of all documents concerning the surrender (warrant of arrest/judgement of conviction) in a language that the person totally understands (9.11). The time limit to submit documents supporting the request for surrender will be 60 days from the date of the provisional arrest (9.12).

Intense work required the wording of the rule 9.15 concerning the Transfer of a person in custody. During the different informals some delegations were in favour of the deletion of 2 sub-paragraphs not clear enough. The compromise was reached in rewording the rule defining: the responsible for the transfer of a person in custody (the national authorities), the responsible for the proper conduct of the transfer (the Registrar) and the rights of the person in custody to raise matters on the conditions of his/her detention (rule 9.15 (a) (b) (c) (d)).

Another issue has been very much discussed during the last two informals and this concerns the Assurance provided by the Court under art. 93, paragraph 2 : some asked for its total deletion because, they sustained, it was in addition to the trigger mechanism. Although the phrase has been reworded respect to the last drafting of the Chair the possibility for the Chamber of the Court to provide the assurance has been kept, and the adding part lies in the possibility for the Court to do so on its own motion or at the request of the Prosecutor. The second paragraph of rule 9.16 has been totally simplified but still the main concept, that is the possibility for the Court to consider the views of the victims, has been kept.

The last rule relating to art. 93, paragraph 10 deals with the cooperation requested from the Court and the procedures that this transmission requests (requests made by the State are to be sent by the Registrar to the Prosecutor/ Chamber concerned). Not many objections were taken by delegates on rule 9.17, but some were keen on adding that once the Court has decided to grant the request for cooperation or assistance, the persons specified in the request may be present (rule 9.17, paragraph d).

The final compromise on rule 9.19, provides that a person surrendered to the Court may give the view on a perceived violation of article 101, paragraph 1, according to which he/she shall not be proceeded against, punished or detained for any conduct committed prior to the surrender, other than the conduct for which he has been surrendered. According to rule 9.20 when the Court requests a waiver of the requirements of article 101, paragraph 1, the requested state may ask the Court to obtain and provide the views of the person surrendered by the Court.

PCNICC/1999/WGRPE(10)/RT.1 is the discussion paper submitted by the Co-ordinator during the second week of the PrepComm, concerning the Enforcement, referred to Article 103 (role of States in enforcement of sentences of imprisonment) and Article 104 of the Statute (change in designation of State of enforcement).

Rules 10.1, 10.2, 10.3 have been adopted as in the French proposal a part from sub-paragraphs (c ) (d) and (e) of rule 10.3. They fix the communications between the Court and the States on matters regarding enforcement of sentences; the Presidency as organ of the Court under part 10; the publishing made by the Registrar of a list of States of enforcement; in particular rule 10.3 provides the possibility for the Presidency to request additional information to the State prior to taking a decision. The majority of the delegations discussed the possibility of establishing a list describing the relations between the States in condition of acceptance and the Court. This is what was accepted by a general consensus.

Rule 10.4 describes the principles of equitable distribution on the basis, first of all, of the geographical one (a). It provides also the possibility for each State on the list to receive sentenced persons.

Rule 10.5 concerns the conditions for the delivery of sentenced persons to State of enforcement. A compromise was reached on the Australian proposal combined with the French and the Austrian suggestions, so that the delivery will take place only once the decision on the conviction and the decision on the sentence have become final.

This final rule is based on rule 136 proposed by Australia, merged with the French proposal (DP.1): all delegations agreed on the possibility for transferring a sentenced person to the designated State of enforcement only once the decision of the conviction and the decision on the sentence have become final.

Rule 10.6, concerning the views of sentenced person, has been accepted as in the rolling text: the Presidency shall inform the sentenced person about the designation of a State of enforcement and the sentenced person will have the possibility to make written or oral presentations.

Regarding rule 10.7, on information relating to designation, the proposal redrafted by the chairman has been accepted: it states the responsibility of the Court in communicating, once the Presidency notifies to the designated State its decision, some information and documents.

Rule 10.8, concerning rejection of designation in a particular case, is directly related to rule 10.7. Since many delegations disagreed on the wording of this rule, it has been reworded, on the basis of the UK suggestion: "Where a State in a particular case rejects the Presidency designation, the Presidency may designate another State".

Following rule 10.9 on delivery of sentenced persons to State of enforcement, the Registrar has to inform the sentenced person and the Prosecutor on the name of the State responsible for enforcing the sentence; furthermore, the Registrar has to ensure the proper conduct of the transfer. On the other side the transferral has to be done once the sentenced person accepts.

Rule 10.10, on transit, has been very much discussed: transit is a general request for cooperation and to some delegates this issue is already covered by the Statute. An agreement was found in a general way, saying that there should be a general obligation for transit. A compromise was taken fixing when the authorisation is required (a) and the conditions under which the States parties will authorise the transit of a sentenced person (b). On rule 10.11, regarding costs, all delegates agreed on the presented attributions: the costs for the enforcement of the sentence in the territory of the State of enforcement shall be borne by the State, while the others shall be borne by the Court (also those referred in art. 100 (c), (d), (e) ).

Regarding rule 10.12 on change in designation of State of enforcement, the wording presented has been deeply criticised because it seemed to restrict the Prosecutor's role. A compromise has been reached on the basis of the French proposal to add "or at the request of the Prosecutor". It was also decided the maintenance of paragraph (b); in this way the Presidency may act on its own motion or on the request of the sentenced person or of the Prosecutor at any time act according to art. 104, paragraph 1.

Rule 10.13 on procedure for change in designation of State of enforcement, provides the task of the Presidency before such decision has been taken. Paragraphs (b), (c), (d) have been modified: many delegation approved the French and the Austrian proposals. The Presidency, may hear not just the oral presentation of the sentenced person but also the written ones and the Prosecutor; the same has been added in paragraph (d), that is to say that the Presidency has not just to hear expert opinion concerning inter alia the sentenced person but it can also read them.

Rule 10.14 presents the case in which the Presidency would refuse the transfer: it should inform as soon as possible the sentenced person, the Prosecutor and the Registrar of its decisions and of its reasons to do so.

A rolling text (PCNICC/1999/WGRPE(10)/RT.2) which refers to articles 105 to 111 of the Statute (enforcement of the sentence; supervision of the enforcement of sentences and conditions on imprisonment; transfer of the person upon completion of sentence; limitation of the prosecution or punishment of other offences; enforcement of fines and forfeiture measures; review by the Court concerning reduction of sentence; escape) was presented during the second week of the PrepComm.

Another one (PCNICC/1999/WGRPE(10)/RT.3) on rules 10.19 to 10.29 relating to articles 107 to 109 emending document RT.2, was submitted later on.

Rules 10.16 and 10.17 relate to the enforcement of the sentence (art. 105).

It is the Appeals Chambers that orders the transfer of the sentenced person to the seat of the Court sufficiently in advance and the determination of the Court has to be notified without delay to the State of enforcement.

Rule 10.19 refers to the Transfer of the person upon completion of sentence describing rigorously the link between the Court and the State for the enforcement of fines, forfeiture measures and reparation measures.

Rules 10.20 to 10.24 concern the Limitation on the Prosecution or punishment of other offences (art. 108) and precisely they describe how the Presidency exercises its control since a State gets this power. The rules have been finally reworded in the rolling text proposed by the Chairman (RT.3). To give more flexibility to the judges of the Court, they have been resumed as much as possible. Following art. 108 these rules state which documents the State of enforcement has to transmit to the Presidency (10.20) and to the Prosecutor (10.21) when it wants to prosecute, try a person or enforce a sentence. In Rule 10.22 sub-paragraph (c) the compromise has been hard to reach because of the important issue on the "temporary extradition": the Presidency will authorise the temporary extradition of the sentenced person to a third State for prosecution only once it has obtained the decided assurances that the person will be transferred back to the State responsible for enforcement.

Rules 10.25 to 10.33 concern all the Enforcement of fines and forfeiture measures and clearly define the tasks of the Presidency such as: seek cooperation and transmit copies of relevant orders to any State with which the sentenced person seems to have direct connections; decide on all matters concerning the disposition of property or assets (10.27); assist the enforcement States under the procedure of the national law of the enforcement State (10.28).

After intense negotiations between delegations that submitted proposals during the previous sessions of the PrepCom (Arab group, Israel, the USA, Switzerland), a consensus was reached for the elements of the crime of transfer and deportation of population, article 8, paragraph 2 (b)(viii).

This text now appears in the discussion paper proposed by the coordinator PCNICC/1999/WGEC/RT.11. In the document it is provided that the conduct took place in the context of an international armed conflict. It is also provided that the perpetrator transferred, directly or indirectly, parts of its own population into the territory it occupies or deported or transferred all or parts of the population of the occupied territory within or outside this territory. A footnote has been added in order to send judges to relevant provisions of International Humanitarian Law for the interpretation of the word transfer.

Agreement was as well reached on the elements of war crimes applicable in internal armed conflict, article 8, paragraph 2 (e). It was agreed to use the same elements of crimes agreed upon for war crimes in international armed conflicts, for similar crimes appearing under article 8, paragraph 2 (b). Few adjustments have been made if the crimes in (e) were not exactly similar to the ones in (b). Agreement on this basket was reached swiftly by all delegations. The rolling text for war crimes in internal armed conflicts appears now in PCNICC/1999/WGEC/ RT.12.

For the war crimes appearing in article 8.2 (b) (iv), (v), (ix) and (xxiv), the American and the Swiss proposals were merged. Consensus was quickly reached for the elements of crimes of (v), (ix) and (xxiv) and now appears in document PCNICC/1999/WGEC/ RT.13. It is interesting to note that for the war crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions (xxiv), the protection was extended to persons, buildings or medical units using the distinctive emblem as well as other method of identification, indicating protection under the Geneva Conventions. This is meant to reflect the evolution of practice in this area where new methods of identification are replacing traditional emblems.

The elements for the crimes appearing under article 8.2 (b) (xxiii), War crime of using protected persons as shields, and (xxv), War crime of starvation as method of warfare, were agreed upon and now appear in document PCNICC/1999/WGEC/RT.14.

The provisions on weapons were largely debated during informal consultations. For the crimes of employing poison or poisoned weapons (xvii) as well as employing prohibited gases, liquids, materials or devices (xviii), discussions concentrated on the formulation of the mental element for these crimes. It was agreed that the accused needs to be aware of the nature of such substance of weapon i.e. that he was using a poison. For the crime of employing prohibited bullets (xix), it was considered unnecessary to require the accused to know that the bullets expand or flatten easily in the human body. In the text approved, it is only required that that the accused be aware that the nature of the bullets is such that their employment would uselessly aggravate suffering or the wounding effect. The language of the last element of this crime, is borrowed from the Declaration of St. Petersburg of 1868. Finally, it is interesting to look at the footnote added to the second element of the crime of employing prohibited gases, liquids, materials or devices(xviii). It was felt necessary to safeguard the evolution of existing or developing rules of international law with respect to the development, production, stockpiling and use of chemical weapons. The 1993 Chemical Weapons Convention provides for a much more detailed and specific list of prohibited chemical weapons for example. The rolling text for these war crimes appears now in document PCNICC/1999/WGEC/RT.15.

The Chapeau is designed to explain and clarify the two common elements to each of the crimes against humanity. The first of this common elements deals with the context in which the conduct must take place, i.e.: the conduct was committed as part of a widespread or systematic attack directed against the civilian population. The second common element deals with the requisite mental element for each of the crime against humanity. The Chapeau clarifies the necessary knowledge of the accused: there is no need to prove "that the accused had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization". It further explains that in the case of an emerging widespread or systematic attack against a civilian population, "the means rea is satisfied if the accused intended to further such an attack". Finally, the Chapeau explains what must be understood by the expression "policy to commit such attack". The acts need not constitute a military attack, but an attack is understood as requiring "the State or organization to actively promote or encourage such conduct as an attack against a civilian population". A number of delegations have expressed here their fear that such a definition may be too restrictive, as an attack is defined only as an active promotion or encouragement of such conduct. It may therefore have the consequence to exclude situations where the State or organization turns a blind eye or acquiesces to the alleged criminal behaviour. During the discussions Egypt proposed to define also the terms "widespread or systematic" in the Chapeau.

The major discussion relating to the elements of the crime of Extermination, Art. 7(1)(b), concerned the mental element as formulated in paragraph 2 of article 7 (1) (b) of the Canadian-German proposal: "The accused intended to exterminate or destroy in whole or in part a civilian population or group, or was aware of a State or organizational policy to do so". Some delegations favoured the deletion of this element because, in their view, it raised the threshold of the crime itself. Other delegations wanted to delete just the last sentence of this paragraph concerning the awareness of a State or organizational policy by the accused because it mirrored too closely the crime of genocide. However, some delegations opted to keep this element as they felt that the intent or policy to exterminate was fundamental in distinguishing extermination from murder.

During the last week of the PrepCom, some delegations (e.g. UAE, Lebanon, Egypt and France) argued that it was not essential for a death to occur in the elements of extermination. The crime of extermination can be perpetrated directly, by killing one or more persons, or indirectly by inflicting conditions of life calculated to bring about the destruction of the population. In the latter case, they argued that death of one person should not be a requirement. This interpretation has not yet been endorsed by a majority of delegations. Another facet to this discussion was whether extermination necessarily involved more than one death. The ICTY and ICTR jurisprudence was recalled, in particular the Akeyesu judgement, to support the argument that a number of persons must be killed in order for the crime to amount to extermination.

The debate then moved to the crime of Deportation or Forcible Transfer of Population, Art. 7(1)(d). In regard to this crime, it was stressed that the elements should reflect the wording of the crime as contained in the Statute. There was a suggestion to delete element 2 as contained in the Canadian-German proposal under article 7 (1) (d): "the persons concerned were lawfully present in the area from which they were deported or displaced" and to add the adverb "lawfully" at the end of the first element that reads "the accused deported or forcibly displaced one or more persons by expulsion or other coercive acts from the area in which they were lawfully present. The problems arose over the terms "deported" and "forcibly transferred." It was suggested that the word ‘displacement’ be used, as it would cover both the transfer of population within a given country’s borders and the deportation of said population out of a country. In element 4, discussion ensued regarding whether "lawfully present" should be qualified. Egypt, speaking on behalf of the Arab States, pointed out that the words "without grounds permitted under international law" from the Statute, being lex specialis, should be included.

As regards Imprisonment or other severe deprivation of physical liberty, Art. 7(1)(e), it was felt necessary to add an element qualifying the gravity of such imprisonment or other severe deprivation of physical liberty. Only serious departure from fundamental rules of international law warranting individual criminal responsibility could amount to this crime.

The first and the second elements proposed in the Canadian-German proposal of the elements of the crime against humanity of Torture, Art. 7(1)(f), were directly taken from the Statute. The third, introducing a purpose element, was not. In this respect, the Canadian delegation explained that this had been added for the sake of consistency with Art. 8(2)(a)(ii), which deals with the War Crime of Torture. It was discussed at length whether to retain this element or not. The requirement that the conduct concerned had to be committed for a purpose, such as obtaining information or a confession, was considered crucial to some delegations in order to distinguish this crime from the Crime against Humanity of Other Inhumane Acts in Art. 7(1)(j). Since no general agreement was reached, the discussion was postponed until time could be made in informal consultations. During the third week of the PrepCom, the main debate focused on whether to include such purpose element and it was clarified that the difference between "torture" and "other inhumane acts" is the degree of severity of pain and/or injury.

The Sexual Crimes (article 7, (1)(g)(1-6), namely rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and sexual violence were reproduced in the Canadian-German proposal, exactly in the formulation agreed upon for sexual crimes as War Crimes, Art. 8(2)(b)(xxii). The debate was not very intense, as the main issues had already been discussed during the last session of the Preparatory Commission (26 July-13 August 1999). The Canadian-German proposal noted that the explanatory footnote concerning "birth control measures" was not satisfactory, and there was general agreement to revise this crime on second reading. As for the crime of sexual violence some delegations proposed that its gravity should be compared to that of all other crimes against humanity contained in Art. 7(1), not just to the offences of a sexual nature.

As for the crime of Persecution Art. 7(1)(h) the discussion focused on element 1 of the Canadian-German proposal, which reads "The accused severely deprived one or more persons of fundamental rights (…)". Some delegations wanted this expression to be further specified by inserting after the word "fundamental rights" the following: "universally recognized under international law". During the third week of the PrepCom the disputed issues were whether the targeting of groups should be included (with some States speaking against the inclusion and others - including France - speaking in favour of it, and the compromise proposal of placing it in a footnote mentioned by several States). However, this issue was intensely debated in Rome and it is believed by some delegations that by adding such a qualifier would mean re-opening the Rome debates.

As to the crime of Apartheid Art. 7(1)(j) the proposal contained in the Canadian-German proposal (Article 7(1) (h)) was almost identical to those found in the US and Arab States’ proposals and there was general agreement on the formulation of the elements.

As for the Crime of Enforced Disappearance, Art. 7(1)(i), the debate concentrated on element 4 as drafted in the Canadian-German proposal. Some delegations proposed to delete it fully and some others wanted to delete just the last sentence concerning the awareness of a State or organizational policy to commit the crime.

Various evidential problems, including the fact that the abduction of the person and the withholding of information on their whereabouts would often be done by different people, were discussed in relation to the proposed element 5. Some delegates favoured including a time element, while others would have included in the elements some wording from the Chapeau.

The Crime of other inhumane acts, Art. 7(1)(j), was conceived to encompass all the grave offences constituting a crime against humanity when committed as part of a widespread or systematic attack and that are not covered under the previous categories of crimes. For this reason some delegations wanted to change the wording of element 2 from: "The inhumane act was of a character similar to other prohibited acts" in "… similar to acts referred to in art.7,1".

Some delegations wanted to include the concept of ‘universally recognized principles’ to qualify "inhumane act" as it was felt that ‘inhuman acts’ have been given an undefined and unlimited definition allowing for Article 7(1)(k) to include all acts in Article 7(1) and a broader definition of inhuman acts than originally intended. Other delegations maintained that element 3 was based in the Rome Statute, which was a valid compromise, and could not be restricted.

During the last week of the Preparatory Commission, a new document was distributed: PCNICC/1999/WGEC/RT.16. The Discussion Paper proposed by the Coordinator containing a draft text of article 7, was presented as an attempt to reflect the debates and the areas of disagreement as well as the questions where consensus had been reached. Many delegates expressed their general satisfaction with RT.16 as a first draft. The United Kingdom, quoting Winston Churchill, said that it represented "the end of the beginning" of the drafting.

There were many areas of difficulty and RT.16 was expressly and frequently stated to be only a first working draft, the result of a major compromise and a document in need of much revision in the next session (13-31 March 2000). The Chair, introducing the draft, explained that the substantial number of footnotes (31) reflected the areas of disagreement and were a convenient way of flagging up the issues needing discussion at the next PrepCom.

The discussion on the crime of aggression moved to the substantive questions during the three Working Group Sessions on Aggression.

During the first session, delegations laid out their visions regarding the definition of the crime of aggression and the role of the Security Council in the crime. It quickly became clear that the contrary positions of delegations had remained the same and the main point of contention was to what extent the Security Council should be involved. The U.S. delegation made clear that in their opinion "any definition must incorporate a clear reference to the singular authority of the Security Council, under the UN Charter, to determine that aggression has taken place as a precondition to the exercise of the Court's judicial authority over individuals accused of such a crime". The permanent five members can be expected to be of the same view. The position of the group that wishes as little Security Council involvement as possible was voiced by the Syrian delegation. The Syrian delegation acknowledged that the Security Council has the right to rule on aggression but adds that absent an action by the Council the Court should be able to proceed in the investigation and finding of the crime of aggression. The Arab block and all other delegations who had been opposed to any role of the Council in this question agreed with this approach that was initially tabled by the Cameroon delegation. There was no major movement of the interested parties' positions during the PrepComm.

The final paper issued by the coordinator is the attempt to consolidate all existing proposals in one paper: Consolidated text of proposals on the Crime of Aggression (PCNICC/1999/WGCA/RT.1).

The various positions are put into option format and delegations are expected to take a position on the first session of the next PrepComm.