SIXTH COMMITTEE CONCLUDES DISCUSSION ON DRAFT CODE OF CRIMES
SIXTH COMMITTEE CONCLUDES DISCUSSION ON DRAFT CODE OF CRIMES19951017 The majority of States in the International Law Commission had favoured the development of an exhaustive codification of crimes against the peace and security of mankind, the representative of Iran told the Sixth Committee this morning as it concluded discussing the draft code. Unfortunately, he said, the Special Rapporteur had acceded to the view of a small minority of States.
The representative of Chile said that the inclusion of threat of aggression and unarmed intervention in the draft code would have impeded its adoption.
The representative of the United Kingdom said that the core crimes against the peace and security of mankind identified by the Commission bore a striking resemblance to those that were emerging as core crimes in the statute for an international criminal court. If negotiations on a Court were well advanced, there was no need for a code.
The representative of Sri Lanka said that some viewed the draft code as a general declaration of policy, while others hoped it would be a precise statement of applicable criminal law. Even if the draft code achieved consensus, it should be allowed to encompass new areas of law in coming years.
Mexico had hoped to see greater progress on the draft code of crime, that country's representative said. The code should include reference to articles that had been deleted, so as to make the view of the Commission more clear.
When it meets again at 10 a.m. tomorrow, 18 October, the Sixth Committee will continue discussing the International Law Commission report, focusing on State responsibility and international liability for injurious consequences arising out of acts not prohibited by international law.
Committee Work Programme
The Sixth Committee (Legal) met this morning to continue consideration of the report of the International Law Commission on the work of its forty- seventh session, which was held from 2 May to 21 July (document A/50/10).
Today, the Committee was expected to begin debate on the topics of State responsibility (chapter IV of the report) and of international liability for injurious consequence arising out of acts not prohibited by international law (chapter V).
On State responsibility, the report states that a series of articles was adopted for inclusion in the third part of the draft concerning settlement of disputes. Methods of settlement suggested included negotiation, good offices and, mediation and conciliation and arbitration. Models for a conciliation commission and an arbitral tribunal have also been prepared. The notions of a "State crime" and "injured State" remained controversial.
On the question of international liability for injurious consequences arising out of acts not prohibited by international law, the Commission made progress on certain aspects. Those dealt, in particular, with prevention and the notion of damage caused to the environment, as well as the freedom of and limits on action by States. It also adopted articles dealing with freedom of action and the limits, prevention and cooperation. It adopted another article as a working hypothesis under the title "liability and compensation".
(For background information, see press release GA/L/2863 of 12 October.)
Draft Code of Crimes
JOHN DE SARAM (Sri Lanka) said that in its final stages of reading the draft articles for a code of crimes, the International Law Commission still faced inconsistent views when it came to the general purpose of the code. Some saw it as a general declaration of policy; others felt it should be a precise statement of provisions to be applied in a criminal jurisdiction. For the code to be credible, it would need to adhere to existing multilateral international law and treaty law.
Even if the draft code achieved consensus in the General Assembly, it should not serve as a comprehensive code for all time, he said. Its scope should be enlarged over the years as new areas of consensus emerged. It would be a relatively simple matter for the code of crimes to embrace generally- accepted treaties in force. Reaching a decision on terrorism or on
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aggression precise enough for inclusion in the code might be a futile endeavour; pending such definitions, the international community should take action against those acts which were clearly identifiable and universally condemned.
EDMUNDO VARGAS (Chile) said that only the most serious crimes should be subject to codification by the International Law Commission. Crimes should be violations against all of humanity, and should adhere to customary international law. It was not appropriate to include crimes for which there was insufficient existing practice.
The Commission had acted rightly in deleting certain provisions from the code which would have led to theoretical arguments. The inclusion of threat of aggression and unarmed intervention into domestic affairs would have created obstacles to the adoption of the code. Non-intervention remained a pillar of international law, he said.
Aggression, genocide, systematic and massive violations of human rights, war crimes, terrorism, illicit drug trafficking and willful and severe damage to the environment should be retained in the code of crimes, he said. As to the crime of aggression, the International Law Commission might consider including in its definition of the crime an addendum with examples of earlier acts of aggression. Murder, torture and forced "disappearances" should also be included in the code.
DJAMCHID MOMTAZ (Iran) said that his delegation realized with concern that the International Law Commission had decided to limit the draft code of crimes to those infractions which were difficult to dispute. The majority of States had favoured an exhaustive codification of crimes, he said. He regretted that the majority of developing nations had not submitted written statements confirming that point of view, he said. In consequence, the Special Rapporteur had acceded to the view of a small minority of States. The Commission should balance legal idealism with political realism. Unfortunately, realism had been pushed to the extreme. The list of crimes included in the code should be supplemented by a list of all crimes that were considered to be international crimes under existing instruments.
Iran was concerned that intervention -- which was still destabilizing sovereign States -- had been deleted from the code. Non-intervention had been declared by the International Court of Justice, in its June 1986 decision concerning paramilitary activities in Nicaragua, to be a fundamental principle of international customary law. The International Court of Justice in that ruling had made clear that the sending of mercenaries was equivalent to a cross-border intervention by regular military forces. Intervention also included the breaking-off of trade relations, he said.
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SOCORRO FLORES (Mexico) said she had hoped for greater progress on the draft code of crimes against the peace and security of mankind. However, that lack was explained by the complexity of the matter involved. The twelve crimes initially included in the draft were all undoubtedly sanctionable. However, only crimes of major magnitude should be included.
She appreciated progress achieved in formulation of some of the crimes and said that while some of the paragraphs deleted from the draft were not useful, reference should still be made to them, to make the position of the Commission clearer. She considered it very important that definition of genocide should be based on the 1948 Convention on the Prevention of Genocide. There should be still greater rigor in defining the crimes against humanity, taking into consideration the systematic and massive nature of those crimes.
There should be an exhaustive list of all possible offenses under the heading of war crimes, she continued. She was not sure that the crime of international terrorism should be included in such an instrument as the code. Her delegation was willing to make further contributions to the work of the Commission on the formulation of the draft code.
F. BERMAN (United Kingdom) said he saw signs that light was beginning to dawn in respect of the draft code of crimes, but the core crimes identified by the Commission bore a striking resemblance to those that were emerging as the core crimes to be embodied in the statute for an eventual international criminal court. It was clearer than ever that if the Committee was deep in negotiation on a court, there was no need for a code. He renewed his request that the Commission not waste its valuable energy and scarce time on an idea which had been overtaken by events.
Speaking about State responsibility, he said that the chapter on that topic was a great disappointment. It was now abundantly clear that the unresolved issue of "State crimes" was not a mere optional extra on top of an otherwise tidy regime. He sided with those members of the Commission who were urging that there was no point in expecting the drafting committee to rescue the situation. Unless the Commission was prepared to take hold of the situation and jettison the concept of "State crime", he saw no prospect of a final product acceptable to States.
Regarding State succession, he said that some of the issues involved were sensitive and far-reaching, and on the present stage, one could only reserve one's position on the substance. The topic of reservation to treaties had been tackled with great verve and energy and stood as a model of what could be achieved in a mere two years.
He was particularly pleased to see that the Commission was already actively seized with the question of reservations to human rights treaties.
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He shared the view expressed by the United States that there should be no question of presupposing different legal regimes for reservations to different types of treaty.
Speaking about the rights and duties of States for the protection of the environment, he said he did not believe that international environmental law was as yet developed enough to sustain a study of that kind, or that the highly technical and variable nature of the issues lent themselves to general global treatment.
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