3. UN Doc. A/CONF.183.9. The certified true copy of that ‘authentic’ text was circulated by the Secretary-General in note C.N.560.1998.TREATIES-2 (Depositary Notification), 15 October 1998. However, that text contains many inaccuracies and discrepancies between one or other of the language versions. At the first session of the Preparatory Commission (PrepCom) the Under-Secretary-General, Legal Counsel (Corell) announced that a correction process had been commenced with circular note C.N.502.1998.TREATIES-3 (Depositary Notification), 25 September 1998, that further errors had come to light, and that an official version of the Statute, including the corrections, would be issued during the July session of PrepCom. Press Release L/2912, 26 February 1999, p. 5. A second set of corrections was circulated in C.N.357.1999. TREATIES-14 (Depositary Notification), 18 May 1999. On 17 August 1999, after the end of the second session of the PrepCom, the Secretariat issued new texts incorporating the corrections noted in the two depositary notices, under symbol PCNICC/1999/INF/3. That is for the information of the PrepCom, and it has been taken into account in this article. In C.N.537.1999. TREATIES-16 (Depositary Notification), 1 July 1999, the Secretary-General issued some further proposed corrections to the English, French, Russian and Spanish authentic texts. It is not clear on what basis the Secretariat was acting in this matter, or how and when a fully correct authentic text in all six languages will be available. By virtue of Art. 79 of the Vienna Convention on the Law of Treaties, 1969 (1155 UNTS 331)Google Scholar, the correction of agreed errors in the authentic text of a treaty is a matter for the signatory states and the contracting states, together with the depositary. For the view of the United States on this aspect, see the Note of 5 November 1998 from the Permanent Mission of the United States to the Secretary-General, reproduced in 93 AJIL 484 (1999)Google Scholar. There is no provision regarding the correction of errors that are not agreed, but principle would suggest that all the states that participated in the adoption of the text ought to be involved. Vienna Convention, Art. 9. The position of states that have ratified the Statute on the basis of the original authentic text is not clear. The Note of 15 October states that certified true copies are established specifically for the purpose of enabling the Governments concerned to complete the internal procedures of ratification, acceptance, approval or accession. There is no known instance of the correction of an entire convention in all six authentic texts. For the correction of the entire Chinese text of the Genocide Convention, cf., GA Res. 691 (VII), 21 November 1952. And see my Developments in the Law of Treaties 1945–1986 at p. 436 (Cambridge, Cambridge University Press 1989)Google Scholar. In addition, virtually none of the documentation of the Rome Conference and the Report of the Committee of the Whole on which the final decisions were made, is available, not even on the website that the UN has created for the International Criminal Court. This seriously hampers all attempts to understand the Rome Statute. On the PrepCom, see text to n. 15 infra.

For an account by participants of the Rome Conference, see Lee, R.S., ed., The International Criminal Court: The Making of the Rome Statute-Issues, Negotiations, Results (The Hague, Kluwer Law International 1999)Google Scholar. Lee was the Executive Secretary of the Rome Conference.

4. Prosecutor v. Duško Tadić (Jurisdiction), Case No. IT–94–1–AR72, Decision of 2 October 1995; ICTY Judicial Reports, 1994–1995 (I) 343, 365 (paras. 10–11); 105 ILR at 457.

5. See n. 3 supra.

6. The relationship agreement between the United Nations and the International Tribunal for the Law of the Sea, adopted by the General Assembly of the United Nations in Res. 52/251, 8 September 1998, uses that expression. That was the first relationship agreement between the United Nations and an international judicial organ created by a treaty drawn up under the auspices of the United Nations. We may presume that any relationship agreement to be concluded between the UN and the International Criminal Court will use a similar expression.

7. Art. 5 reads: ‘The present Convention applies to any treaty which is the constituent instrument of an international organization, without prejudice to any relevant rules of the organization.’

8. Legality of the Use by a State of Nuclear Weapons in Armed Conflict advisory opinion, ICJ Rep. (1996)(I) pp. 66 at 75 (para. 19).

9. Cf., the joint separate opinion of Judges McDonald and Vohrah in Prosecutor v. Erdemović, Judgment, 7 October 1997, in the Appeals Chamber of the ICTY, Case No. IT–96–22–A; 111 ILR 315.

10. Cf., Wood, M., ‘The Interpretation of Security Council Resolutions’, 2 Max Planck Yearbook of United Nations Law (1998) p. 73Google Scholar. Nevertheless, the view is sometimes expressed that the Statutes of these Tribunals are nonetheless established by treaty — the Charter of the United Nations. Carrillo-Salcedo, J.A., ‘The Inherent Powers of the International Tribunal for the Former Yugoslavia to issue “Subpoena duces tecum” to a Sovereign State’, Mélanges en honneur de Nicolas Valticos: Droit et justice (1999) pp. 269, 278Google Scholar.

11. See SC Res. 808 (1993) and 827 (1993), of 22 February and 25 May 1993 respectively. The Statute of this Tribunal is annexed to the report of the Secretary-General submitted in accordance with Res. 808, Official Records of the Security Council, 48th year, Supplement for April, May, June 1993 (Doc. S/25704 and Add.1) at 117. This Statute is reproduced in the Tribunal, 's Basic Documents at p. 1, 2nd edn. (1998)Google Scholar, which also reproduces the Secretary-General's report at p. 161.

12. The Statute is annexed to SC Res. 955 (1994), 8 November 1994.

13. The Assembly of States Parties is probably to be regarded as a ‘treaty body’ as that concept is developing in United Nations practice. Cf., Establishment of the Court and relationship with the United Nations, List of main issues. Background paper by the Codification Division, Doc. A/AC.249/1998/L.10 (mimeo., 20 December 1998). The Office of Legal Affairs of the UN Secretariat has consistently taken the view that a treaty body established by a treaty concluded under UN auspices is an organ of the UN. See opinions of 15 September 1969 on the privileges and immunities of the members of the Committee on the Elimination of Racial Discrimination, and of 17 August 1976 on the question of whether that Committee is a subsidiary organ of the UN. That Committee is composed of individuals, but it would seem that there is no difference of principle if the treaty organ is composed of the representatives of states.

14. One might hope that the Assembly of States Parties will be authorized under the Charter to request advisory opinions of the International Court. For reasons stated in the previous note, there is no reason why it should not be considered an organ of the United Nations within the meaning of Art. 96(2) of the Charter.

15. There will thus be a short overlap when both the PrepCom and the Assembly of States Parties will be in existence. That overlap will terminate with the conclusion of the first session of the Assembly.

16. Particulars of the first session of the PrepCom of 1999 are given in Press Release L/2912, 26 February 1999. See also Proceedings of the Preparatory Commission at its first session (16–26 February 1999), Doc. PCNICC/1999/L.3/Rev.1 (2 March 1999). Proceedings of the second session of the PrepCom are given in Press Release L/2933, 13 August 1999; and Proceedings of the Preparatory Commission at its Second Session (26 July–August 1999) Doc. PCNICC/1999/L.4. Documents of the 1999 sessions of the Preparatory Commission are available online at http://www.un.org/law/icc/prepcomm/docs.htm. For an account of the first two sessions of the PrepCom, see K. Dörmann at p. 283 of this volume.

17. See on this Rosenne, S., ‘International Tribunal for the Law of the Sea: 1996–97 Survey’, 12 The International Journal of Marine and Coastal Law (1998) p. 487CrossRefGoogle Scholar.

18. The final structure of the Rome Statute differs from the original proposal of the International Law Commission. That was structured as follows: Part 1 (Arts. 1 to 4), the establishment of the Court; Part 2 (Arts. 5 to 19), Composition and administration of the Court; Part 3 (Arts. 20 to 24), Jurisdiction of the Court; Part 4 (Arts. 25 to 31), Investigation and prosecution; Part 5 (Arts. 32 to 47), the Trial; Part 6 (Arts. 48 to 50), Appeal and review; Part 7 (Arts. 51 to 57), International co-operation and judicial assistance; Part 8 (Arts. 58 to 60), Enforcement; Annex, Crimes pursuant to [designated] treaties. That proposal did not contain final clauses. However, Appendix I discussed possible clauses of a treaty to accompany the draft statute. Vol. II/2 ILC Yearbook (1994) p. 20Google Scholar.

19. Cf., the explanation given by Sir Humphrey Waldock, special rapporteur on the law of treaties, at the 872nd meeting of the International Law Commission. Vol. I ILC Yearbook (1966) at p. 199Google Scholar.

20. Annex I, Resolution F, para. 7. For the Final Act, see Doc. A/CONF.138/10, 17 July 1998, available online at http://www.un.org/law/icc/index.htm.

21. Having regard to Art 5(2) (see section 6 below), no further consideration will be given here to the crime of aggression, beyond noting that the reference is to individual responsibility for the crime, not the responsibility of the state as such. This follows from Art. 25(1). The crime of aggression for the purposes of this Statute is connected with the relationship to be established between the Court and the Security Council. Art 2 provides that ‘[t]he Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.’ One of the functions of the PrepCom is to prepare a draft of this relationship agreement The Secretary-General is to convene the first Review Conference seven years after the Statute's entry into force.

22. Constitutional difficulties have already been raised. See for example the decision of the French Conseil constitutionnel of 22 January 1999, No. 98–408 DC, to the effect that ratification of the Rome Statute will require revision of the French Constitution. http://www.conseil-constitutionnel.fr/decision/98/98408/index.htm. An unofficial English translation of this decision is reprinted at p. 493 of this volume. For commentary, see P. Tavernier at pp. 360–362.

23. It is to be noted that this automatic assumption of jurisdiction through the act of becoming a party to the Statute is an extension of what has been the practice as regards the International Court of Justice. There, the act of becoming a party to the Statute implies acceptance of the Court's jurisdiction to render advisory opinions and its so-called incidental jurisdiction, but not its jurisdiction over the merits of a contentious case. This extension is justified in the case of the constituent instrument of a permanent international criminal court. It would be self-defeating were the consent of a state to be required for the Court to have jurisdiction in a particular case.

24. See the Commission's report in n. 18 supra, at p. 42.

25. Art. 102 defines ‘surrender’, for the purposes of Part 9, as the ‘delivering up of a person by a State to the Court, pursuant to this Statute’. It distinguishes ‘surrender’ from ‘extradition’ which it defines as meaning the delivering up of a person by one state to another as provided by treaty, convention or national legislation. It is not clear what the word ‘convention’ (Fr. convention) means in this context. Either it is a tautology, or it means custom, but given the French text the tautology is probably the correct meaning here. Cf., on this the report of the International Law Commission on the law of treaties, Commentary on Art. 2 of its draft articles of 1966, para. (4), Vol. II ILC Yearbook (1966) at p. 188Google Scholar.

26. The original French text read here peut solliciter. This has been corrected to sollicite in the revised text, thus bringing it into line with the English version.

27. For those Conventions and Optional Protocols, see 500 UNTS 95 and 223; and 596 ibid. 261 and 487. Three cases have come before the International Court on the basis of those Optional Protocols: the United States Diplomatic Staff in Tehran case (USA v. Iran) (1980); the Vienna Convention on Consular Relations (Breard) (Provisional Measures) (Paraguay v. USA) case, ICJ Rep. (1998) p. 248 (discontinued at p. 426), and the LaGrand (Provisional Measures) (Germany v. USA) case, ibid. 1999, 9 (pending). The last two relate to criminal prosecutions of the applicant states' nationals.

28. ICTY Statute, Art. 9(2); ICTR Statute, Art. 8(2). For an example of a deferral order, see ICTY Trial Chamber decision of 8 November 1994 in Prosecutor v. Tadić, ICTY, Judicial Reports, 1994–1995 (1)3. This was the ICTY's first decision.

29. GA Res. 217 A (III), 10 December 1948.

30. 999 UNTS 171, 1059 UNTS 451, 1131 UNTS 396. The Secretary-General's report on the basis of which the Security Council adopted the Statute of the ICTY makes specific reference to the Convention in para. 101 and elsewhere in dealing with the trial itself. For a discussion of the meaning of ‘fair trial’ in the context of the ICTY, see the Judgment of 15 July 1999 of the Appeals Chamber in Prosecutor v. Duško Tadić, Case No. IT–94–1–A, paras. 29–56.

31. The expression that the Court must ‘satisfy itself’ that it has jurisdiction in any case brought before it requires a positive finding by the competent Chamber that it has jurisdiction in the case. The 1994 draft of the International Law Commission contained, in Art. 24, a provision along those lines. The Commentary explained that the article ‘is intended to spell out the duty of the court (and of each of its organs, as appropriate) to satisfy itself that it has jurisdiction in a given case’. Vol. II/2 ILC Yearbook (1994) at p. 45Google Scholar. The same phrase ‘satisfy itself appears in Art. 53 of the Statute of the International Court of Justice, and has been interpreted in that sense. Cf., Rosenne, S., The Law and Practice of the International Court 1920–1996, III, 1401 (1997)Google Scholar. No similar provision appears in the Statutes of the ad hoc Tribunals.

32. See Art. 51 on the Rules of Procedure and Evidence. Art. 83 governs proceedings on appeal. Further at n. 47 infra.

33. Another problem will arise if the requested state is not a party. Art. 88 requires States Parties to ensure that there are procedures available under their national law for all forms of co-operation which are specified under Part 9. There is no such obligation for non-parties. States that are not parties to the Statute are unlikely to have national provisions for the surrender of persons to the Court, as distinct from their national provisions for extradition in the usual sense of the word. For definitions of ‘surrender’ and ‘extradition’ for the purposes of the Statute, see n. 25 supra.

34. The complicated structure of this provision requires the text to be given here in English and French.

35. Art. 5 (Crimes within the jurisdiction of the Court) reads:

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

36. 78 UNTS 277.

37. It should be noted that the ICJ placed together in a single sentence Arts. II and III of the Genocide Convention. Application of the Genocide Convention (Preliminary Objections) (Bosnia and Herzegovina v. Yugoslavia) case. ICJ Rep. (1996) (II) p. 595 at p. 615 (para. 31). The handling of genocide in the Rome Statute blurs the particular heinousness not only of the crime of genocide, but also of its ancillary crimes. They should be in a category of their own.

38. In the preparatory work for the Rome Conference, much thought was devoted to the question of the placement of the ‘ancillary’ crimes set out in Art. III of the Genocide Convention. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, United Nations, General Assembly, Official Records, 50th session, Supplement 22 (A/50/22) paras. 59 to 62; Report of the Preparatory Committee on the Establishment of an International Criminal Court, ibid. 51st session, Supplement 22 (A/51/22), Vol. I, paras. 58 to 64 and Vol. II at p. 57; Report of the Preparatory Committee, Doc. A/CONF.183/2/Add. I. The question whether to include Art. III of the Convention in the definition of the crime of genocide in the Statute was related to the question of whether to include in the appropriate general part of the Statute provisions on ‘ancillary crimes’ related to the ‘core crimes’. The Rome Conference decided on the latter solution.

39. These cases are Prosecutor v. Akayesu, Judgment of 2 September 1998, Case No. ICTR-96–4-T (http://www.un.org/ictr/english/judgments/akayesu.html) (the accused pleaded not-guilty) and Prosecutor v. Kambanda, Judgment of 4 September 1998, Case No. ICTR-97–23-S-S (http://www.un.org/ictr/english/judgments/kambanda.html) (the accused pleaded guilty). These cases are excerpted in 37 ILM (1998) p. 1319 and p. 1411Google Scholar, respectively. On the Akayesu case, see 93 AJIL (1999) p. 195Google Scholar.

40. Prosecutor v. Tadić (1997), Case No. IT-94–1-T, 112 ILR 1, p. 21, para. 635.

41. 82 UNTS 279.

42. The Draft Code, which has been under consideration virtually throughout the existence of the International Law Commission, was finally adopted in 1996. Report of the International Law Commission on the work of its 48th session, 6 May-26 July 1996, ch. II. GAOR, 51st session, Supplement 10 (A/51/10). The General Assembly has not yet decided on the final disposition of this Draft Code. Different tribunals, including the ICTY, are showing an inclination to rely on it when dealing with crimes against humanity. Likewise the House of Lords in its judgment of 24 March 1999 in the Pinochet case (R. v. Bartle and the Commissioner of Police for the Metropolis and others (Ex parte Pinochet), Weekly LR (1999) 827.

43. A curious omission from the jurisdiction of the International Criminal Court is ‘piracy’, once regarded as the international crime par excellence. Cf., Art. 105 of the UN Convention on the Law of the Sea of 1992.

44. 75 UNTS 5 (Final Act), 31, 85, 135, 287; 1125 ibid. 3. This is noted by Meron, Th., War Crimes Law Comes of Age (Oxford, Oxford University Press 1998) p. 307Google Scholar. For a detailed account of the sources and relevant case law regarding the war crimes set out in Art. 8, prepared by the ICRC, see Doc. PCNICC/1999/WGEC/INF.2 and Add.1, 2.

45. In many countries the Conventions, duly ratified, may be part of the law of the land. Cross-referencing to other treaties can be a source of difficulty in the application of one or other of the two instruments, in cases where a state is party to only one of them.

46. This document does not appear among the relevant series of numbered documents. The reports of the Preparatory Committee present the different proposals without attribution of authorship. The text was furnished to me by the International Committee of the Red Cross.

47. For the Rules of Procedure see Doc. A/CONF.183/6, 23 June 1998. The significance and intent of the phrase ‘within the established framework of international law’ [dans le cadre établi du droit international] in this context is far from clear.

48. The Secretary-General is required by Art. 123 to convene the Review Conference seven years after the Statute's entry into force ‘to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5’. The failure of the Rome Conference to agree on a definition of drug trafficking as a crime within the jurisdiction of the Court is ironic. It was GA Res. 44/39, 4 December 1989, dealing with drug trafficking, that initiated the renewed consideration by the International Law Commission of the topic of the International Criminal Court. That resolution is even recited in para. 3 of the Final Act.

49. The PrepCom is to prepare the Elements of Crimes, together with the Rules of Evidence and Procedure, by 30 June 2000. They shall enter into force on adoption by a two-thirds majority of the members of the Assembly of States Parties. This language, which follows Art. 108 of the Charter of the United Nations, means a two-thirds majority of all the States Parties, whether or not present and voting at the meeting when the vote is taken. On the Elements of Crimes, see the 1996 Report of the Preparatory Committee on the Establishment of the International Criminal Court, vol. I, para. 56, GAOR, 51st session, Supplement 22 (A/51/22).

50. See Doc. PCNICC/1999/L.3/Rev.1, 2 March 1999, Annex III. At the very least they will affect the element of mens rea required for each individual crime.

51. The ‘entry into force’ of a multilateral treaty is a complicated matter. There is a distinction between its entry into force generally, and its entry into force for a particular state. See on this the resolution on the intertemporal problem in public international law adopted by the Institute of International Law at its Wiesbaden session in 1975. 56 Annuaire de l'Institut de Droit international, (1975) p. 536Google Scholar; reproduced in Institut de Droit international, Tableau des Résolutions adoptées (1957–1991) (1992) at p. 110Google Scholar. Further in Rosenne, S., Developments in the Law of Treaties 1945–1986 (Cambridge, Cambridge University Press 1989) p. 76Google Scholar.