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Deal on Crimes vs Humanity Emerging

ROME.  A compromise by Canada that would allow the International Criminal Court (ICC) to prosecute "widespread or systematic" attacks is one of many promising signs that agreement can be forged to define the Court's core crimes, Italian officials say.

The Canadian proposal, which includes the phrase "widespread or systematic attack directed against any civilian population" in its chapeau but includes elements of both widespread and systematic attacks in its subsequent definition, has drawn both criticism and approval from nations here.

In general, however, Italy - among other "like-minded" nations - is prepared to see the proposal as the basis for a workable compromise, argued Mauro Politi, legal adviser to the Italian delegation.

Calling the Canadian approach "a very cleverly constructed proposal", Politi cautioned, "It is not a perfect formulation for us." But, he added, "this formula has attracted widespread consent ... We would be willing to accept and to live with this compromise."

Felicity Wong of New Zealand's foreign ministry added that, despite criticism of the Canadian compromise, the language could actually serve as a basis to try a wide range of crimes as crimes against humanity. Regardless of worries or disappointment over compromises, she argued, "it's still going to be a great text".

Not everyone is satisfied. Non-governmental organisations (NGOs) and some delegations want a complete separation between the need to prove "widespread" attacks or "systematic" ones. As Politi acknowledged, Italy has "always advocated a formula of 'widespread or systematic' (acts) ... cutting any kind of linkage (between the two conditions)." However, the South Asian Human Rights Documentation Centre argued in a recent criticism of the compromise that the Canadian proposal used a linguistic "sleight of hand" to attach both conditions to any definition of crimes against humanity without explicitly stating it.

The controversy stems from the proposal's definition of an attack against the civilian population as "a course of conduct involving the commission of multiple acts...directed against any civilian population pursuant to or knowingly in furtherance of a governmental or organisational policy to commit those acts".

By defining an attack in those terms, the Centre wrote, the compromise requires the ICC prosecutor to prove both that "multiple acts" were committed and that there was a "governmental or organisational policy" being furthered; in other words, that the attack was both widespread and systematic.

Compromises like that have left some "like-minded" negotiators worried that they are conceding too much than is necessary to build a strong, tough Court. But Politi Monday voiced the flipside of that concern, arguing he was confident that the ICC would reach agreement on definitions of the three core crimes of genocide, war crimes and crimes against humanity.

"We have found a sufficiently constructive debate," said Umberto Leanza, alternate head of the Italian delegation. "The atmosphere in general is a positive one ... The preliminary stage should now be over. What we need now is to move to a strictly negotiating stage."

Leanza told reporters Monday that some 30 articles have already been sent to the drafting committee, on topics ranging from language about genocide and the composition and administration of the Court to indictment criteria and pre-trial procedures.

However, he added, the major controversies, including the role of the Security Council and the prosecutor's powers, still lay ahead. Even there, though, the number of nations moving from strong criticism of an 'ex officio' prosecutor empowered to initiate investigations without prior state or Security Council recommendation to acceptance of that concept is growing rapidly, Leanza argued.

But some items are less likely to be resolved easily. Politi pointed to the definition of aggression, noting that the UN Charter gives a role to the Security Council to define when aggression has been carried out by one state against another.

Hicham Hamdan of Lebanon, chair of the Arab states' coordinating group, has argued that the 15-nation Council should not be given an exclusive role and that the 185-nation General Assembly should also play a part in determining aggression. (Arab states have been upset by the lack of action by the Council to determine aggression in several armed attacks, including those conducted by Israel against Lebanon and other neighbouring countries.)

"I cannot make a forecast" about whether aggression will be defined during this conference, Politi conceded, but he added there could also be a possibility that a later review conference could add aggression to the three core crimes. In any case, warned Italian minister Giuseppe Panocchia, major decisions on the ICC must be made by Jul. 17, since any continuation or follow-on conference would be "not worth considering".  

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