SIXTH COMMITTEE HEARS DIFFERING VIEWS ON CODE OF CRIMES AGAINST INTERNATIONAL PEACE AND SECURITY
Aggression was a classic crime against mankind, stated the representative of Algeria. Rather than undertaking the "pointless exercise" of seeking to define that crime, the International Law Commission should rely on the definition established by the General Assembly in its resolution 3314 (XXIX).
The representative of the Czech Republic said that he endorsed the decision of the Commission to delete the threat of aggression from the code of crimes. The representative of Greece said that the threat of aggression had been mentioned in the Charter. If notions like attempt, incitement and complicity found their way into the code, it should also include the threat of aggression.
Germany's representative said that for the code to serve as the cornerstone of an international enforcement system of criminal law, it must be quite clear which persons could be held personally accountable for having committed the crimes being prosecuted. As currently drafted, the paragraphs on responsibility and punishment were overly broad. The representative of the Philippines said that States still had the primary responsibility to prevent individuals from committing acts of destabilization against other countries.
Argentina called for the inclusion in the draft code of war crimes and atrocities committed in non-international conflicts. India said that the code should not deal with situations arising out of internal conflicts. The code had been intended only to address crimes affecting international peace and security.
Also speaking this afternoon were the representatives of Norway (on behalf of the Nordic countries), Romania, Netherlands, Slovakia, South Africa, Uruguay and Hungary.
The Sixth Committee will meet again at 10 a.m. tomorrow, 17 October to continue its discussion of the report of the International Law Commission.
Committee Work Programme
The Sixth Committee (Legal) met this afternoon to continue its consideration of the report of the International Law Commission (document A/50/10) on the work of its forty-seventh session, which was held from 2 May to 21 July.
The Commission was established by the General Assembly in 1947 to promote the codification and progressive development of international law. Today, the debate centered on the draft code of crimes against the peace and security of mankind -- chapter II of the report. For detailed information, see press release GA/L/2863 of 12 October.
NOUR-EDDINE SIDI ABED (Algeria) said that the work of the International Law Commission over the years had maintained the status quo rather than reform it. The persistent quest for compromise had been unable to transcend all the barriers facing the Commission. The time had come to consider seriously ways and means of improving the working methods of the Commission.
The Commission had unfortunately not completed its work on the draft code of crimes against the peace and security of mankind. Algeria favoured limiting the list of crimes to those which were difficult to dispute. The Commission should ensure that they were defined in detail. Aggression was a classic crime against mankind. Seeking to establish a new definition of that crime would be a pointless exercise, he continued. Aggression had been defined by the General Assembly in its resolution 3314 (XXIX). The decisions of the Security Council should not be able to influence the workings of an international criminal jurisdiction. The Commission should not endorse the non-egalitarian structures of international law and of international relations.
The 1948 Genocide Convention had provided a broadly-acceptable definition of that crime, he said. Any attempt to broaden that definition would only make matters more complicated. Acts of terrorism should be considered crimes of exceptional seriousness. Algeria believed that the crime should be included in the draft code. The definition of terrorism developed by the Special Rapporteur had been a good starting point. The alteration of demographic realities by moving settlers to occupied territories was a crime of exceptional gravity; colonial domination should remain on the draft code of crimes.
VACLAV MIKULKA (Czech Republic) said that the Commission had clearly achieved consensus regarding the inclusion of aggression, genocide, war crimes and crimes against humanity in the draft code of crimes. By following a maximalist trend, the Commission would have risked turning the draft code into a stylistic exercise. A concise code limited to the most serious crimes would be more likely to be adopted by States.
Crimes to be included in the code should be massive in nature. The code should precisely define the crimes, so that the personal liability of individuals was in line with the national liability of States. In that connection, the draft code should be harmonized with provisions on State responsibility. The characterization of an action as a crime against the peace and security of mankind should not be allowed to conflict with the principle of the primacy of national law. The Czech Republic hoped that in its second reading the Commission would improve the definition of crimes to be included in the draft code.
As to the crime of aggression, there was a clear distinction to be drawn between the role of the Security Council and that of an international criminal jurisdiction. Aggression should fall within the specific and exclusive jurisdiction of an international criminal law regime. The Czech Republic endorsed the decision of the Commission to delete the threat of aggression and colonial domination from the code of crimes.
DAG WERNO HOLTER (Norway), speaking on behalf of the Nordic countries, said he was in favour of the code of crimes. However, important questions of both principle and technical nature remained unsolved, and further general clarification was needed on the draft. Crimes to be included in the code must fulfil the criteria of classification and suitability. That meant that they should, in fact, be acts against the peace and security of mankind and that they could be regulated by that kind of instrument.
The narrower focus on the issues of special priority was the most fruitful one, he continued, but the list of crimes did not necessarily have to be final. It could be revised and extended after the code was completed. For the code to become a successful instrument of international law, it must have broad support from the countries of the world.
SILVIA A. FERNANDEZ DE GURMENDI (Argentina) said the discussion of the draft code of crimes against peace and security of mankind was especially important in view of the negotiations on the establishment of an international criminal court. Surgery on the initial list of crimes had been done to save the patient, she said. The limited approach to the list of crimes coincided with the clear trend in the committee on the establishment of the international criminal court, which would have to concentrate on the most serious crimes.
In order to prosecute the crime of aggression, an a priori statement of an act of aggression by the Security Council seemed inevitable under the provisions of the United Nations Charter. Subsequent judicial action remained not quite clear and objections could arise concerning the course of action, resources being limited or non-existent.
Regarding crimes against humanity, she said that progress should be made to include the most serious atrocities committed internally. The topic of war crimes should also include those committed in non-international armed conflicts. She also supported the use of the term "crimes against mankind". She felt that crimes committed in the time of peace could endanger the state of peace and international security and should be included.
FLORIN POSTICA (Romania) said that the tragic events in the former Yugoslavia and Rwanda had made clear that monstrous crimes still took place which set aside the rules of war. Rather than simply managing those crises, the international community should anticipate future outbreaks by permanently setting aside the principle of impunity. A code of crimes, together with an international criminal court, could address crimes which threatened civilization.
Romania believed that only the six most serious crimes should be retained in the draft code. The crime of aggression had caused many divergences in the International Law Commission and in the ad hoc committee on the establishment of an international criminal court. It would likely continue to cause difficulties because it had not been precisely defined in an international instrument; and because aggression was generally carried out by States, and not by individuals.
An extensive list of crimes to be included in a draft code would not be the most realistic course of action. The solutions proposed by the Commission would not satisfy everyone, but work should proceed.
RAUL DEL MAR (Philippines) said that today, more than ever, the international community had the opportunity to embark on the progressive development of international law. For many years politics had prevailed over law. In the post-cold-war world, the legal option was needed. The shock and confusion faced in international crises today largely resulted from waking up in a world absent of superpower confrontation.
Recent events in the former Yugoslavia and in Rwanda had shown that individuals could be at the centre of criminal acts in violation of human rights. States were primarily responsible for their own acts and the actions of individuals. But individuals could violate the sovereignty of States. National laws were not ready for that phenomenon. In many jurisdictions, individuals could plot, scheme and destabilize another country without fear of criminal prosecution.
Evolving international law to address the modern reality that individuals could and did commit crimes against the interests of States should not be allowed to distract States from their primary responsibility to prevent such acts. States had the primary responsibility to render justice in those crimes.
FANI DASKALOPOULOULIVADA (Greece) said that aggression was the primordial crime in international relations. The problems with defining that crime were substantial, but the attempt by the Commission, which reflected the United Nations Charter, had adequately responded to basic definitional needs. The involvement of the Security Council in defining aggression merited further study. Although a determination of the Council as to the existence or non- existence of aggression should be binding on the international criminal court, the reverse should not be true. But the international criminal jurisdiction should not be precluded from deciding that there had been aggression in the absence of a Council determination; that would be to the detriment of justice and could amount to the submission of justice to political considerations.
Genocide should be included in the code of crimes, she said. Greece supported the new formulations of that crime developed in the Commission, particularly insofar as they included the notion of incitement and attempt, which would bring the definition closer to that of the Genocide Convention and the definitions used in the ad hoc Tribunals for the former Yugoslavia and for Rwanda.
Greece would have preferred that the draft code of crimes retain prohibitions on the establishment of settlers in an occupied territory and changes to the demographic composition of occupied territories. Greece also regretted that the "threat of aggression" had been removed from the draft code. Threat of aggression was mentioned in the Charter. If notions like attempt, incitement and complicity found their way into the code, it was perfectly feasible to include the threat of aggression.
ADRIAAN BOS (Netherlands) said there was an interrelationship between the work of the ad hoc committee on the establishment of an international criminal court and the work of the International Law Commission on the code of crimes. Not only were the discussions in the Commission and the ad hoc committee parallel, but they also seemed to tend in the same direction.
The position of the Netherlands was that the code of crimes should be limited to the most serious crimes, and that the international criminal court should only have jurisdiction with respect to those very serious crimes. A very close relationship should be established between the identification of crimes, the creation of the international criminal court and the acceptance of the jurisdiction of the court for the crimes identified.
The latest report of the Commission on the draft code still contained two crimes which should fall outside its scope, he continued, namely the crimes of international terrorism and of drug trafficking. Neither illicit trafficking in drugs or terrorist activities should be put on the same level as the large-scale violations of humanitarian norms in the former Yugoslavia or the genocide in Rwanda.
JAN VARSO (Slovakia) said the questions of the substance and the purpose of the draft code and the activities to be included in it remained of great importance. The questions of peace and security of mankind deserved the greatest attention of the international community and needed a firm legal basis. The international legal order was constantly called into question by acts against peace and security. The purpose of the code was to protect the state of peace within the international community and to protect human rights all over the world. The code was to be seen as an international preventive instrument, as well as the instrument providing for punishment.
Society wished and must ensure that social order be guaranteed, which should determine the acts and activities deemed as crimes against that order, he continued. A clear distinction should be made between criminal acts and the objects to be protected. Seriousness, mass nature, consequences and the effect of a crime on the foundations of social order should also be evaluated. If a crime against peace had been committed, it must be judged as such unequivocally. Aggression was a typical example of such a crime.
Aggression should be included in the acts against peace, he continued. Similarly, genocide should be included in the crimes against mankind, as well as drug trafficking and terrorism. The code should formulate the crimes clearly, avoiding the risk of breaking laws while prosecuting an individual.
J.J.C. LE GRANGE (South Africa) said the code should be sufficiently precise and should include the most serious international crimes. It should also strengthen international law and enhance international peace and security.
The policies and practices of apartheid had been condemned by the Security Council and by the international community in many relevant resolutions, he continued. Article 20 of the draft on apartheid should be maintained, for it had reached far beyond the borders of South Africa. The contention that the territorial impact of apartheid had been limited was incorrect. The crime of apartheid was still fresh in memory and should not be excluded from the draft code. Its exclusion should be reconsidered.
NALIN SURIE (India) said his delegation was not satisfied with the outcome of the last session of the Commission and expressed regret that the draft code in its second reading did not include several crimes, which had been considered important in the first reading of the draft. He strongly believed that specific reiteration and inclusion of several crimes, proposed to be left out in the second reading, would enhance the value of the code.
Any weakening of the draft code of crimes would correspondingly weaken the importance of the establishment of a permanent international criminal court.
There could not be any distinction between an act of aggression and war of aggression, he continued, as long as the conduct involved gave rise to consequences of sufficient gravity or magnitude as to threaten the peace and security of mankind. A mere emphasis on wars of aggression would not be adequate. Similarly, definitions of genocide and other crimes would have to be reviewed carefully before they could be included in the code.
Speaking about crimes against humanity, he said the criterion of "systematic and mass violations of crimes against humanity" was necessary for it to be incorporated as a crime in the code. Lack of consensus on applicable standards, inadequate appreciation of the contextual factors surrounding such violations, absence of credible and impartial means of establishing facts were other factors compounding the complications in that respect.
More work needed to be done on the issue of war crimes, he continued. The scope of the code needed to be kept clearly defined; it should not deal with situations arising out of internal conflict, as the code was meant to deal with crimes affecting international peace and security. A definition of terrorism could be attempted by a method of enumeration on the lines of several international conventions on that subject. Keeping in view the increasingly insidious relationship between terrorism and illicit drug trafficking, he supported the inclusion of drug trafficking as a crime under the code.
CHRISTOPH MULLER (Germany) said the decision to limit the number of infractions to be included in the draft code of crimes would make it more likely that the code would some day become operative. For the code to serve as the cornerstone of an international enforcement system of criminal law, it must be quite clear which persons could be held personally accountable for having committed the crimes being prosecuted. As currently drafted, the paragraphs on responsibility and punishment were overly broad, reflecting notions of complicity and attempt that were too comprehensive. Like an overly-exhaustive list of crimes, too broad a notion of participation in a crime made it less likely to be accepted by the international community.
The draft code of crimes had not yet achieved the precision of definition required to meet the rigorous standards of criminal law, and did not offer a firm basis for unambiguously establishing individual responsibility. Aggression should be an integral part of the draft code, he continued, but it was difficult to define that crime precisely enough to establish individual responsibility. Any characterization of individual behaviour as a crime of aggression had to be preceded by a determination that a State had performed an aggression. Given that the Security Council had primary responsibility for the maintenance of international peace and security, the question arose whether the fact of an aggression by a State could be determined without engaging the responsibility of the Council. That question needed further discussion.
MARIA DEL LUJAN FLORES (Uruguay) said the International Law Commission should endeavour to expand international law and to strengthen the fundamental human rights upon which international law was founded. It was important that the International Law Commission establish a concrete linkage between the elaboration of the draft code and its work in the area of State responsibility.
The draft code of crimes should retain its prohibitions against wilful destruction of the environment, she said. Uruguay believed that crimes should be clearly defined in the code and that minimum and maximum ranges of penalties for those crimes should be clearly set out.
GYORGY SZENASI (Hungary) said his Government endorsed the use of the terms "crimes against humanity" and "war crimes" because that terminology better corresponded to the wording used in the Charter of the Nuremberg Tribunal, and in various penal codes. Hungary endorsed the decision of the Commission to further examine the possibility of covering the issue of wilful and severe damage to the environment in the code.
Turning to other chapters of the International Law Commission report he said that State succession and its impact on the nationality of natural and legal persons was a topic of special interest to Hungary, which saw problems of that kind in five of its seven neighbouring States. Hungary supported the customary rules of international law by which predecessor States were obliged not to withdraw the nationality of the persons concerned, and by which successor States were obliged to grant nationality to a well-defined category of persons. Both types of States should be obliged to grant a right of option, he said.
Regarding State responsibility, he said that States should be prohibited from employing counter-measures that included the use of force, extreme economic or political coercion, violations of the rights of diplomatic or consular agents, or any conduct which derogated basic human rights.
Hungary believed that international liability for injurious consequences arising out of acts not prohibited by international law was a crucial subject in emerging international environmental law. Hungary endorsed the view of the Commission that States did not have unlimited freedom to carry out or permit activities in their territories. States should cooperate in good faith to minimize the risk of significant transboundary harm.
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