Today 21st November the WGA Chaired by Ambassador Paul Seger from Switzerland was held.

During
the discussion, facilitators of the Informal WGA to the Rules of Procedure and Evidence provided their
conclusions. The decision was to not recommend to the ASP the temporary absence of a judge
amendment proposal while, on the contrary, the language cluster proposal was considered worthy
to be discussed further during the ASP.
In the meeting it has been also decided to avoid additions and amendments to the Rome Statute,
leaving time to the ICC to consolidate its mandate. Particular opposition has been expressed to the
amendment proposed by Kenya on Art. 27.

Below full notes of the meeting.

Working Group on Amendments

21st November, 2014
Chair, Switzerland (Ambassador Paul Seger)

Items on todays agenda are: 1) Conclusions from the facilitators of the Informal WGA on the
Rules of Procedure and Evidence (RoPE); 2) To continue the discussion on proposals of
amendments to the Rome Statute (RS).

Peru (Angel Horna) (facilitator RoPE on temporary absence of a judge)

Amendment proposal to Art. 140 bis of the RoPE is related on a temporary absence of a judge
and comes directly from the Court.
Four requirements or safeguards have been proposed by the Court to be included: 1) The
absence of the judge is due to illness or other unforeseen urgent personal reasons; 2) The
hearing of the case continue in the absence of that judge for completion of a specific matter
which has already commenced and can be concluded within a short timeframe; 3) The
Chamber is satisfied or, if it is not practicable to consult the absent judge, the remaining
judges of the Chamber are satisfied that this arrangement; 4) The parties must consent to this
arrangement.
The amended proposal from one of the State Party (Germany) adds other two requirements:
1) At least one of the remaining judges has not been temporarily absent before in the hearing
of this case; 2) The absent judge is given the opportunity to make himself familiar with the
entirety of the proceedings conducted in his absence by means of video recording and the
transcript.
Some doubts have been raised during the discussion of both proposals since they can
undermine Art. 74(1). Furthermore, the flexibility proposed from these amendments is not
considered consistent with Art. 39(2)(b)(ii) and Art. 64(3)(a) of the RS.
Some delegations consider the proposed text ambiguous while some others claim that this is a
praxis already adopted by the Court so there is no need to adopt these amendments.
The Court prcised that the words hearings and stage of the trial do not mean necessarily
throughout the trial or every minute of the trial.
We also had in mind factual situations: vulnerable witnesses have to journey long distances
from small villages and far countries to provide their testimony.
The conclusion of this informal group taken by the majority is that the attempt to codify this
article does not appear to be an absolute necessity at this point of time. We are satisfied with
the state of affairs and practices that could be already used by the Court with the consent of

the parties. However we would recommend the Court to continue in making more complete
proposals on this issue for future consideration.

UK ( Jesse Clarke)

We were and remain in favour of this proposal. We are disappointed but there are no
objections to the conclusion drawn by the facilitator.

Sweden ( Pernilla Nillsson)

I am not sure the majority does not need the codification of this practice. It is simply that no
agreement has been reached.
Does this amendment proposal still stand or will not be discussed anymore?

Chair, Switzerland (Ambassador Paul Seger)

Proposal remains in standby. This WGA should maintain the dialogue with the Court for future
discussion on the issue.
This WGA will not recommend to the upcoming ASP to continue with this proposal.

Norway , (Andreas Motzfeldt Kravik) (facilitator RoPE on the language cluster)

Findings: a large majority is in favour of these amendments but there are some delegations
which are still under consultation. Amongst them some are more likely to be in favour of the
amendments while others express some concerns but have not reached yet their final
decision. No delegation firmly expressed their opposition.
Our conclusion is that there is a growing consensus not an absolute consensus.
We can recommend the ASP to discuss for the adoption of these proposals bearing in mind
that some delegation is still consulting with the capital.
I will conduct bilateral consultations during the weekend in order to have a more clear view
from the consulting delegations to be presented at the next meeting Monday 24th November.

Chair, Switzerland (Ambassador Paul Seger)

Since no delegation takes the floor I take silent as consent.

The second point of the agenda is: amendment proposal to the RS.
Mexico proposal.

Mexico (Alejandro Sousa)

The use of Nuclear Weapons should be added to Art. 8 of the RS and be criminalized as a War
Crime in the context of an international and internal armed conflict.
Nuclear Weapons are not targeting any specific object causing loss of civilian life but not only.
The use of Nuclear Weapons is against the IHL principle of proportionality and is a threat for
the humanity as a whole.
Our intention is to recommend this amendment to the ASP.

UK

We dont see importing this issue to the ICC mandate would be a good solution.
Even if proposals have 10 years old does not mean that now is the time to introduce them
We should leave time to the ICC to consolidate its good practice and the mandate we have
already given it without adding any other issue.
The Court is still new so new crimes should not be adopted yet.

Kenya (James Waweru Ndirangu)

We are still consulting but we are eager to bilaterally work with Mexico on this proposal.

Mexico

We also are willing to continue to work on this proposal after the ASP.
We believe that the discussion held in other fora is a testimony about the importance of this
issue.
The contrariety to the IHL allow us to insert this issue also in the RS.

Chair, Switzerland (Ambassador Paul Seger)

Kenya proposal.

Kenya

Our proposal to amend Art. 27 is not a try to rewrite the RS out of practice.
It is historically clear now that prosecution of sitting Head of State (and sometimes also former
Head of State) by the ICC is very difficult.
This is a pragmatic proposal since these difficulties are evident since 10 years and not only for
the Kenyan case.
We do not want to secure impunity. We are trying just to add a comma not a full stop. Just for
a 4-5 years mandate of a sitting Head of State or maximum for the second mandate.
This is a very reasonable amendment.

Liechtenstein ( Rene Holbach)

What happens if one is indicted and then becomes Head of State or vice versa?
Liechtenstein Head of State is also the prince so there would be a lifelong exemption. For us
would be a full stop not a comma.

For us Art. 27 of the RS is a funding principle and cannot be touched.

UK

Netherland ( Marcel)

My capital gave me a clear indication: the current Art. 27 is a cornerstone of the RS and we
cannot support any amendment.

Norway

What if a sitting Head of State change the Constitution to extend duration of its mandate?
Official capacity should be irrelevant to allow the Court to fight impunity.
We align with the UK and Netherland position.

Sweden

As a kingdom we have the same problem than Liechtenstein but also the mandate of our
Prime Minister can last very long (we had one for 20 years) so we align our position with UK,
Netherland and Norway.
Regarding Mexico, Belgium and Trinidad and Tobago proposals we think that we need to
provide our support to the Court and not adding any issues by amending the RS.

Belgium ( Antoine Missone)

We align with the position of the other delegations.

By modifying this Article we tempt sitting Head of States to modify in their own favour their
mandate both legally than illegally.

Canada, Germany, Slovenia and France align with the other delegations without adding anything.

Chair, Switzerland (Ambassador Paul Seger)

Several delegations pointed that Art. 27 is a firm cornerstone of the RS and should not be
modified although the discussion can continue after the ASP.
There is also an expressed concern regarding amendments to the RS. We must give the Court
the time necessary to grow and consolidate with its current mandate.
Adjournment on the Kampala amendments by Liechtenstein.

Liechtenstein

San Marino has been the last State to ratify the Kampala amendment on the Crime of
Aggression so the number of ratification is now 19. We expect to have more than 20
ratification after the ASP. Entry into force of this amendment will be with 30 ratifications. We
expect that in 2017.

Chair, Switzerland (Ambassador Paul Seger)

I will start to draft the final Report to be submitted to the ASP and to the new Chair of the
WGA. The discussion of this Report will start on Monday. Discussion will be on which elements
should be addressed on the Report. The Report will be circulated the 26th November for
comments.
Next meeting Monday 24th November.