An Introduction To The International Criminal Court - Institute for ...

punishment and the rights of victims 165
The debate about capital punishment threatened to undo the Rome Conference.
Unlike many other difficult issues, which had been widely debated
and, in some cases, resolved during the Preparatory Committee sessions, the
question of the death penalty had been studiously avoided throughout the
pre-Rome process. At the December 1997 session of the Preparatory Committee,
Norwegian diplomat Rolf Einer Fife, who directed the negotiations
on sentencing, simply refused to entertain debate on the matter, saying this
would be addressed at Rome. Capital punishment might not have been such
an issue were it not for sharp debates that took place in another forum, the
United Nations Commission on Human Rights. Beginning in 1997, progressive
States had pushed through resolutions on abolition of the death
penalty. A particularly difficult exchange took place in March and April
1998 and, although the abolitionists won the day, it appears that a handful
of retentionist States decided that they would counterattack. 12
The campaign was led by a persistent group of Arab and Islamic States,
together with English-speaking Caribbean States, and a few others such
as Singapore, Rwanda, Ethiopia and Nigeria. The Rome negotiations were
a perfect occasion for them to attempt to promote their position, because
adoption of the Statute would require consensus. A small but well-organised
minority searching for a degree of recognition of the legitimacy of capital
punishment was in a position to extort concessions, and to an extent they
were successful. Desperate to resolve the issue and ensure support for the
draft Statute as a whole, the majority of delegates agreed to include a new
Article stating that the penalty provisions in the Statute are without prejudice
to domestic criminal law sanctions, 13 as well as to authorise a declaration by
the President at the conclusion of the Conference pandering to the sensitivity
of the death penalty States on the issue. 14 Nevertheless, the exclusion of
12 CHR Res. 1998/8. See Ilias Bantekas and Peter Hodgkinson, ‘Capital Punishment at the United
Nations: Recent Developments’, (2000) 11 Criminal Law Forum 23.
13 Rome Statute, Art. 80.
14 ‘The debate at this Conference on the issue of which penalties should be applied by the Court has
shown that there is no international consensus on the inclusion or non-inclusion of the death
penalty. However, in accordance with the principles of complementarity between the Court and
national jurisdictions, national justice systems have the primary responsibility for investigating,
prosecuting and punishing individuals, in accordance with their national laws, for crimes falling
under the jurisdiction of the International Criminal Court. In this regard, the Court would
clearly not be able to affect national policies in this field. It should be noted that not including
the death penalty in the Statute would not in any way have a legal bearing on national legislations
and practices with regard to the death penalty. Nor shall it be considered as influencing, in the
development of customary international law or in any other way, the legality of penalties imposed
by national systems for serious crimes.’