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ICC, a Legal Obstacle Course

ROME.  Profound differences of opinion on key issues affecting the role, functions and financing of a future International Criminal Court (ICC), as negotiations enter the critical last two weeks, are worrying legal experts and human rights activists.

"What's the big picture?" asked Roger Clark, jurist and a Samoan delegate to the ICC.

"The ICC will adopt existing international law, except where it is occasionally a question of improvising, or where we can't accept its implications. "What's happening is a partial codification of already existing law," said Clark, who was among speakers at the Palamnesty debate Friday, entitled 'The Necessary for International Justice'.

He said some legal progress had been made in the past few weeks. "We gave up on Actus Reus...but there has been progress in defining intent - the US has made an attempt to define this more rigorously, and we have developed a workable notion of superior orders at the ICC," he added.

"This was fudged at Nuremberg and by the military code. It was also fudged when the French destroyed the Rainbow Warrior in New Zealand waters," Clark said.

Some of the difficulties in the negotiations have stemmed from the differences between international and criminal law of different countries.

"There is a gap in the ICC conference between the criminal and the international lawyers," said Clark.

Other issues with major legal implications, like the question of capital punishment, have also entered the ICC debates as "wildcards" and drawn sharp divisions among some delegations, he added.

Christopher Hall, legal advisor to Amnesty International, said there had been mixed progress in the last few weeks vis a vis the 16 points that the group wanted to see in an ICC. But that key areas remain to be decided as governments go into as concrete negotiations over provisions this week.

So far, he explained: "The conference can't agree on the scope and definition of crimes, which is essential. It is still reinventing and wrestling with definitions formed at Nuremberg."

Hall called "worrisome" the fact that some states are questioning ICC jurisdiction over unarmed, apart from armed conflict, and that "a small group of states is making trouble over the question of whether gender can be included" in the statute.

The Court's independence from political influence was "yet to be resolved," as is the touchy issue of the independence of the ICC prosecutor, since "a large minority group of states is opposed and as the conference progresses this principle is under attack - it's still a very controversial issue".

Also unsettled is the issue of Security Council control over the Court, and "we may not know the outcome of this one until the last day", Hall explained. state cooperation with Court action. "This principle is currently in great danger...we risk having an a la carte court, where states decide to cooperate with the court or not, on a case by case basis, despite having signed a treaty," warned Hall.

Other questions up in the air are state cooperation with the ICC's actions, funding for the Court and whether states would be allowed to make reservations on the ICC statute.

Other speakers said delegates ought not lose sight of the conference aims: "At an international level we have no police, no government or parliament. The ICC is the culmination of a battle for international law rather than the rule of the strongest," said Lucio Levi of the European Federalist Movement.

ICC president Giovanni Conso added: We need a good statute created by July 17 - it will be a defeat if the conference has to be continued elsewhere." Alison Dickens


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