World Court President Urges Greater Use Of Court's Advisory Mechanism in Conflict Prevention

The draft code of crimes against the peace and security of mankind should be limited to a circumscribed list of serious international infractions, the Sixth Committee was told this morning as it continued consideration of the report of the International Law Commission. The Commission has, for several years, been elaborating the draft code.

The crime of aggression should be included in the draft code, the representative of Bulgaria told the Committee, but the definition of aggression contained in General Assembly resolution 3314 (XXIX) was too broad and legally imprecise. Ireland said that the international legal community could not ignore the role and work of the Security Council in pronouncing on an act of aggression.

Many representatives addressed the relationship between the draft code of crimes and the draft statute of the proposed international criminal court. Japan cautioned against discrepancies in the definition of crimes between the two instruments. China said that as the proposed court would likely employ the code, United Nations Charter provisions on aggression should be included in the code.

The observer of Switzerland said that there was no need strictly to link the draft code of crimes with the draft statute of the proposed international criminal court. However, those texts should be harmonized, he said.

The representative of Croatia said that wilful and severe damage to the environment deserved to be treated separately in the draft code, although often that action was a form of war crime. The representative of Bosnia and Herzegovina urged that mass rape and sieges against civilian targets should receive special attention in the draft code.

Also this morning, Mohammed Bedjaoui, President of the International Court of Justice told the Committee that the Court had, in recent years become a protagonist in the maintenance of international peace and security. No less than 10 cases were now before the Court, involving questions ranging from the legality of nuclear weapons to genocide. He urged that the international community make greater use of the Court's advisory mechanism as a means of conflict prevention.


Committee Work Programme

The Sixth Committee (Legal) met this morning to hear the address by the President of the International Court of Justice and to continue consideration of the report of the International Law Commission (document A/50/10).

In continuation of the debate on the report, the Committee discussed the draft code of crimes against the peace and security of mankind -- chapter II of the document. The Commission plans to submit its final draft to the General Assembly next year.

This year, the report states, considerable progress has been made in the drafting committee of the draft code. The Commission has decided, as a matter of priority, to concentrate on four international crimes -- aggression, genocide, systematic or mass violations of human rights and exceptionally serious war crimes. For detailed background information on the report, see press release GA/L/2863 of 12 October.


CHEN SHIQIU (China) said that elaboration of the draft code was an extremely important task undertaken by the International Law Commission, especially at a time when the discussions on setting up the international criminal court had run into great difficulties, due to the absence of a universally acceptable international criminal code. It was a politically sensitive issue, which involved different criminal law theories and practice of various countries. It was also essentially a question of progressive development of international law.

While the Commission was still far from reaching a full agreement on what specific crimes should be included, there was a clear trend and developing consensus that the draft code should be limited to the most serious crimes against the fundamental interests of mankind, he continued. He believed there was little doubt whether genocide should or should not be included, although its definition needed to be improved.

The key to the question, whether the crime of aggression should be included, was whether agreement could be reached on its definition, he continued. As the code would most probably be used by the international criminal court, it may be necessary to have relevant provisions of the United Nations Charter relating to that issue either in the definition of aggression or in the general principles of the code. The harmonization of the code and draft statute of the Court would almost certainly come up at a later stage.

Regarding the violations of human rights, he said that the code needed to be further studied. He also believed that crimes in serious violation of the rules and conduct of war could be included, but there was a clear need to distinguish "serious violation" from "general violation" in the code. As for the inclusion of other crimes, such as crimes of international terrorism and drug trafficking, a full exchange of views was necessary.

CHUSEI YAMADA (Japan) said such crimes as the threat of aggression and intervention did not satisfy the standard of precision generally required by

domestic criminal laws. Apartheid, recruitment and use, financing and training of mercenaries and others could be covered by articles for other crimes.

He noted that the Commission had decided to refer to the drafting Committee four crimes -- aggression, genocide, violations of human rights and war crimes -- for consideration as a matter of priority on second reading. The crimes of international terrorism and illicit traffic in narcotic drugs could be effectively dealt with in national courts within the existing legal framework through international arrangements, and were unlikely to qualify as crimes for inclusion in the code. A restrictive approach would enhance the wider acceptability of the code and would contribute to ensuring universality.

Regarding the definition of aggression, he noted the differences of opinion and said that it was necessary to elaborate a precise definition for the purpose of individual criminal responsibility. Aggression was, in the first place, an act of State. It was the view of his Government that the determination by the Security Council on the existence of an act of aggression was a prerequisite for the commencement of trial proceedings on the crime of aggression.

The draft code of crimes and the draft statute of the international criminal court were closely linked in reality, although they were drafted separately, he continued. If the definitions of applicable crimes were to be included in both documents, it would not only cause a serious duplication of work for the General Assembly, but might also create discrepancies in the definition of crimes between the two instruments, which, in the worst case, would prevent the ICC from functioning effectively. It was essential to ensure the universality of both instruments.

MAURICE BIGGAR (Ireland) said that international law must pronounce itself on heinous international crimes. To that end, the international community must balance principle with the need for practical detail. The new code must define crimes covered, jurisdiction to try the accused, mechanisms to bring accused persons to trial, appropriate safeguards for defendants, penalties and arrangements for their imposition.

The decisions of the International Labour Organisation to concentrate on six of the original crimes placed before it had been both practical and realistic. Only a small number of exceptionally grave and heinous acts should be characterized as crimes under the code. Individual responsibility should be ascribed to the question of culpability for those crimes.

Regarding the definition of "aggression", he said that the workings of international law must take into account the realities of international life. Some delegations had raised doubts as to the involvement of the Security Council as provided for by Article 39 of the Charter, preferring to base their approach on the basis of General Assembly resolution 3314 (XXIX) (1974). Realistically, the international legal community could not ignore the role and work of the Security Council. The draft code of crimes should be open to amendment in light of future international circumstances, he said. Ireland strongly believed that drug trafficking should be addressed in a future draft code.

Statement by President of the International Court of Justice

Mohammed Bedjaoui, President of the International Court of Justice, said that the Charter of the United Nations had provided that the Security Council could take action to enforce the decisions of the World Court, but that enforcement was always predicated upon temporal expedience. There was no international police force or prosecutor.

Today, the International Court of Justice had become a protagonist in the maintenance of international peace and security. No less than 10 cases, from four continents, were now before the Court. It was dealing with substantial international questions, he said. The Court was considering two questions for advisory opinions on the legality of nuclear weapons. The case brought before the Court by Bosnia and Herzegovina dealt with the issue of genocide. It seemed as though the destiny of the Court was subject to the sudden turns and reversals of world history. The Court was very active today, having come back from the nadir of its activity in 1977, when it had no cases before it.

Despite the Court's more active docket, over the past 30 years the number of States agreeing to the binding character of the Court's decisions had hovered at about 30 per cent. The 1985 decision by the United States to deny the binding nature of decisions had been important. Acceptance of compulsory jurisdiction was far from being the only criterion for determining the extent to which States were prepared to have their disputes settled by the court. The rapid expansion of United Nations membership in the post-war period had complicated the role of the Court. The two-fold, and then three- fold, expansion in the number of States had seen a defiant rejection of binding decisions by the new States that had not participated in the drafting of international law. The Soviet Union and the socialist bloc in general had shown no interest whatever in the Court having a binding character, he said.

It had not been until the end of the 1980s and the beginning of the 1990s that the Court saw a true surge in its caseload. Among the factors that had facilitated that change had been the decision by the Court to provide recourse by States to ad hoc chambers. The new attitude of the States of the former Soviet bloc, which had begun with Soviet President Mikhail S. Gorbachev's call for acceptance of the binding judgement of the Court, had been another key factor in the increasing recourse to the Court. Nearly all those States had withdrawn their reservations relating to the Court. Some of those States -- Poland, Estonia, Bulgaria, Hungary and Georgia -- had even accepted compulsory jurisdiction.

The advisory jurisdiction of the Court was under-utilized, he said. The opinions of the Court often had a "pacifying effect" on conflicts, he said. Advisory opinions could often be a means of conflict prevention. Virtually no political conflicts were free of legal questions. Conflicts often grew out of States' fears of losing control while attempting to resolve disputes peacefully. The Court hoped that the "psychological barriers" to the Court's participation in dispute settlement would continue to fall.

Draft Code of Crimes

BRANIMIR ZAIMOV (Bulgaria) said that the proposed code of crimes against the peace and security of mankind should take the form of a draft convention containing provisions precise enough to ensure effective prosecutions. While generally supporting limitation of the draft code to those crimes proposed by the Special Rapporteur, his Government believed there was a strong case for retaining "wilful and severe damage to the environment" as a crime in the code. There should be consistency between crimes to be included in the draft code of crimes and in the draft statute for an international criminal court.

Aggression should be included as a crime in the draft code, he said. However, the definition of aggression contained in General Assembly resolution 3314 (XXIX) was too broad and legally imprecise. The term "crimes against humanity" was preferable to "systematic or mass violations of human rights"; the former term corresponded to language used in international and domestic law, as well as in case law.

The draft code of crimes would only be complete if it included three essential elements: crimes, penalties and jurisdiction. A scale of penalties should be established, with the courts left to determine penalties applicable in each case. One article should set out minimum and maximum limits for all crimes in the code, with severity of penalties corresponding to the gravity of crimes.

BUDISLAZ VUKAS (Croatia) said that although the Commission had made considerable progress on the first reading of the draft code of crimes against mankind, differences on the basic issues persisted. There were no easy solutions for the problems. The code in the form of the declaration would not be worth all the efforts. The code needed to be an effective tool against serious international crimes.

The reduction of the list of crimes to those most dangerous to international peace and security suggested the possibility of the quick adoption of the document, he continued. It could be adopted by a resolution of the Security Council, which was mandated to maintain the peace and security of mankind.

The new, short version of the text on aggression was acceptable to his delegation, although he would like to see a list of acts of aggression along with the definition of the crime. If apartheid were deleted as a specific separate crime, he would like it to be included in another article. Inclusion of forced disappearance among the crimes against humanity was desirable. In respect of war crimes, he was ready to accept the new title.

Finally, in view of experience of war against Croatia, he was interested in the article on the wilful and severe damage to the environment. It deserved to be treated separately, although often it was a component of war crimes. He hoped the work of the Committee would contribute to the work of international commission on that important topic.

DJORGE KOCETKOV (Bosnia and Herzegovina) said his republic had been exposed to brutal aggression, and the large majority of its inhabitants had been subjected to acts of terror. More than 200,000 innocent civilians had been killed and nearly half of the population had been dispersed all over the world. The Karadzic regime and other responsible parties were to be held accountable for their crimes. Not all Bosnian Serbs supported Karadzic, who was a war criminal indicted by the International Tribunal.

In consideration of the draft code of crimes, he said, certain acts of war crimes should have special attention. They were not new in international law and had been recognized in previous relevant instruments of international law. In view of their brutality, those acts should be included under the topic of war crimes, including those committed during long sieges.

He said the long siege of Sarajevo by the forces of the Karadzic regime continued. The civilian population had been shelled and sniped at. Massacres of civilians had taken place in the market place and in the streets of the city. The aggressor had also cut off utilities at will, as well as communications with the world, including the functioning of the Sarajevo airport. There was good reason to consider that criminal act in the category of war crimes. Mass rape of women and girls, practised as part of "ethnic cleansing", should also be so designated.

DIDIER PFIRTER, Observer from Switzerland, said that this year the work of the International Law Commission on the draft code of crimes had evolved around the definition of crimes and the scale of penalties, which were important for both domestic legislation and the international legal order.

On the relationship between the draft code of crimes and the draft on State responsibility, he said the code of crimes pertained to the penal responsibility of individuals, while the draft on State responsibility concentrated on that of States. Thus, while the texts would overlap in some respects, they should have some differences. Even the definition of aggression might not be identical in both texts.

Speaking about the relationship of the draft code of crimes with the statute of the international criminal court, he said the code should be of service to the international penal tribunals. The code needed not be strictly linked to the statute of the criminal court, but both instruments were steps towards a single aim to punish especially heinous acts, with regard to both States and individuals responsible. However, the texts should be harmonized as much as possible.

Such a convergence was already appearing regarding the definition of crimes, he continued. He welcomed the decision to take into consideration only the most serious crimes. With respect to specific categories of crimes, he said that aggression was a State rather than an individual crime. Given the difficulties of identifying individual perpetrators of that offence, the matter should be carefully evaluated and probably limited only to conduct of a war of aggression.

With respect to genocide, he said there was no doubt that it should be included on the list. On massive violations of human rights, he supported the proposal to bring them under the heading of "crimes against humanity". A list of those crimes should be formulated.

Speaking of wilful damage to the environment, he said such acts could be either included under other topics, or kept as a separate item. On penalties, he said it was possible either to leave the scale of the penalties to national judges, or provide in the code for the absolute maximum and minimum possible penalties.


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For information media. Not an official record.