COMMITTEE IS TOLD PROPOSED INTERNATIONAL CRIMINAL COURT SHOULD BE COMPLEMENTARY TO NATIONAL JURISDICTIONS
Press Release
GA/L/2876
COMMITTEE IS TOLD PROPOSED INTERNATIONAL CRIMINAL COURT SHOULD BE COMPLEMENTARY TO NATIONAL JURISDICTIONS
19951030 Nature of Crimes to Be Referred to Court Is Discussed; Difference of Views on Timing of Conference to Adopt StatuteThe proposed international criminal court should be a permanent, independent institution linked to the United Nations, the Sixth Committee (Legal) was told this afternoon as it began considering the report of the ad hoc Committee on the establishment of such a court.
The representative of Spain, speaking for the European Union, said the court should be complementary to national criminal jurisdictions. Resort should be made to it when the court decided that national systems were not available or were ineffective.
Several speakers said that the court's jurisdiction should be limited to the most serious international crimes -- genocide, war crimes and crimes against humanity -- with other infractions left to national courts. Japan said that the definitions of crimes in the draft statute for the criminal court should be made more specific, so as to protect the rights of accused persons.
The representative of Australia called for the convening of an international conference to adopt the statute of the court in the first half of 1997. The representatives of France and China said that it was premature to set a date for such a conference. Both favoured a step-by-step deliberation of outstanding questions.
The report of the Ad Hoc Committee was introduced by its Chairman, Adriaan Bos (Netherlands). He said that an international criminal court could function properly only if a substantial majority of members of the international community accepted its establishment and role.
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Also speaking this afternoon were the representatives of Canada and Italy. The representatives of Bangladesh, Russian Federation and Lebanon also spoke as the Committee completed its analysis of the report of the International Law Commission.
The Sixth Committee (Legal) will meet again at 10 a.m. tomorrow, 31 October, to continue discussing the report of the Ad Hoc Committee.
Committee Work Programme
The Sixth Committee (Legal) met this afternoon to begin consideration of the report of the Ad Hoc Committee on the Establishment of an International Criminal Court (document A/50/22). The Ad-Hoc Committee was established by General Assembly resolution 49/53 of 9 December 1994, to review issues arising from the International Law Commission's draft statute for an international criminal court. The Committee met at Headquarters from 3 to 14 April and from 14 to 25 August.
In its report, the Committee recommends that the General Assembly organize future work towards an early completion of a draft convention establishing the court, which should subsequently be considered by a conference of plenipotentiaries. The Committee also recommends that the General Assembly mandate it to draft the text, as well as to continue discussions on the court. The establishment of a single, permanent court would obviate the need for setting up ad hoc tribunals for particular crimes, thereby ensuring stability and consistency in international criminal jurisdiction.
The report further states that the court was envisaged as an independent permanent judicial organ, to be established by a multilateral treaty. It would not be a full-time body, but would operate when required to consider a particular case. The possibility that the court could remain permanently in session if its caseload so required, was not excluded. The court would be available to States parties to its statute, and in certain situations, to the Security Council.
During discussions, the role of the Security Council was described as consistent with its primary responsibility for the maintenance of international peace and security. The intervention of the Security Council in triggering the jurisdiction of the court were to be limited only to the most serious crimes against international peace and security. There were different views as to whether a Security Council referral should obliterate the need for State consent.
The report also states that, as emphasis was placed on the need to promote general acceptability of the statute of the court, it was argued that the court should have jurisdiction only over a few "hard-core" crimes, including aggression, genocide, war crimes, crimes against humanity, serious violations of the laws and customs applicable in armed conflict, and treaty- based crimes.
Many representatives expressed the view that inclusion of terrorism, drug trafficking, torture, apartheid or other crimes prohibited by international treaties in the statute of the court would overburden it. It was said that those crimes should be dealt with by national courts.
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According to the report, the court was intended to complement national criminal justice systems and would enhance effective prosecution and suppression of crimes of international concern. It was also noted that the International Law Commission did not intend the proposed court to replace national courts, and that States had a vital interest in remaining responsible for prosecuting violations of their laws.
During the debate in the Committee, many delegates urged that the principle of complementarity be more clearly defined and that the authority which would determine the adequacy of national courts be clearly established. Some stated that competent national courts should have priority over the international court; others cautioned against the primacy of national jurisdictions being invoked to shield criminals.
According to the report, representatives were divided over the question of "inherent jurisdiction" of the court over serious international crimes, which would allow the court to proceed with the prosecution of crimes without being requested to do so by its member States. Some felt that inherent jurisdiction was incompatible with principles of complementarity and of national sovereignty as articulated in the United Nations Charter. Others argued that, given the magnitude of the core crimes included in its statute, the international court should not be unduly restricted in its freedom to prosecute.
Regarding the related issue of "trigger mechanisms", several speakers urged that the role of the prosecutor be more fully elaborated and expanded to include the initiation of investigation or prosecution of serious crimes. Other representatives stressed the importance of State consent in any trigger mechanism for the court.
In the debate on State consent requirements, some delegations expressed the view that any State party to the statute should be entitled to lodge complaints with the prosecutor about serious crimes under general international law. It was further suggested that with respect to some crimes, such as genocide, complaints should not be limited to States parties.
However, the report continues, the views were also expressed that only the States concerned that had a direct interest in the case, such as the custodial State, the territorial State or the State of nationality of the victim or suspect, should be entitled to lodge complaints. It was also remarked that the choice of concepts such as extradition, surrender and transfer, could have very different and far-reaching consequences in various States.
Delegations agreed that, to provide clear guidance to the court and to protect the rights of the accused, general rules of international law should
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be included in the statute or in an annex, with questions of lesser importance to be determined by the court in particular cases.
The report also states that in addition to the draft statute, the Ad Hoc Committee discussed the relationship between States parties, non-States parties and the international criminal court; cooperation with the international court, including apprehension and surrender; judicial assistance; recognition of international criminal court judgements; enforcement of sentences; and mutual recognition of judgements. The Committee's working group also considered the issue of general rules of criminal law.
Annexes I and II to the report contain guidelines for the consideration of the question of the relationship between States parties, non-States parties and the court, and for consideration of the question of general principles of criminal law.
International Law Commission
K.H. MORSHED (Bangladesh) suggested that the crime of apartheid be restored to the code of crimes against mankind, since racial discrimination readily lent itself to State and institutional patronage. The historical phenomenon of racial discrimination contained a germ of genocide. He also supported restoration of the crime of wilful and severe damage to the environment as one of the core crimes to be included in the draft.
Speaking about State responsibility, he said that the difficult notion of "State crimes" had attracted considerable debate. It was not easy to dismiss the concept since there were so many situations in which crimes could not be attributed to individuals. How, he wondered, would it be possible to attribute to a single individual a widespread crime that lay at the foundation of a State -- as had been the case in South Africa? In such a case the whole membership of the offending law-making body or ruling party may have to be indicted. That would come close to indicting the State itself.
On the settlement of disputes, he said the International Law Commission had integrated compulsory negotiations into its proposed mechanism for conflict resolution. That may be of service under general international law since unconditional compulsory negotiations offered a promising route to the amicable settlement of disputes. Compulsory third-party proceedings were an essential prerequisite for the democratization of international society. Countermeasures were admissible only in a framework which embraced compulsory third-party proceedings, he said.
ROMAN KOLODKIN (Russian Federation) expressed satisfaction with the work of the Commission on the topics of State succession and reservations to treaties. However, the Commission had encountered serious problems
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deliberating on the topics of the draft code of crimes against mankind and State responsibility.
Speaking about the relationship between the draft statute of the proposed international criminal court and the draft code of crimes, he wondered if it was feasible to adopt two international legal instruments of substantive law containing similar crimes and definitions. One way of avoiding duplication would be to concentrate the efforts of the Commission on such crimes that would not be included in the statute of the criminal court, which would make the draft code of crimes a potential source for additions to the statute.
Regarding the draft on State responsibility, he said the part of the draft concerning delicts and their consequences should be completed in the near future. The Commission could return to the articles on responsibility for crimes at a later date.
The articles devoted to State crimes and their consequences remained unclear, he said. It was also doubtful, whether the proposed mechanism empowering the Security Council and the General Assembly to determine the existence of a crime and attribute it to a State was compatible with the Charter of the United Nations.
JOSEPH AKL (Lebanon) said significant progress had been made on the subject of the draft code of crimes. The limitation of the list to several hard-core crimes was justified, but he hoped that it was provisional. There were several crimes that deserved to be incorporated in the code, including foreign and colonial domination, racial discrimination and wilful and severe damage to the environment. Clear, precise and rigorous definitions of crimes should be included in the code, as well as penalties for wrongful acts.
It was necessary to consider a mechanism that would allow the addition of crimes to the draft code in the future. Provisions of the code should be harmonized with the draft statute of the international criminal court. Establishment of settlers in a seized territory also should be included in the draft. A more vigorous definition of international terrorism was also needed.
Speaking about reservations to treaties, he said the legal norms determined by the Vienna conventions were satisfactory, despite certain gaps and ambiguities. It was necessary to supplement the existing texts and adopt guidelines and model clauses on the matter of reservations to treaties.
Chairman of Ad Hoc Committee
ADRIAAN BOS (Netherlands), Chairman of the Ad Hoc Committee on the Establishment of an International Criminal Court, said that crimes such as
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aggression, genocide, war crimes and crimes against humanity violated fundamental human rights and struck at the very foundations of the international legal system. When the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 it recognized that a judicial organ would be needed for the prosecution of certain serious crimes and requested the International Law Commission to study the establishment of an international criminal court.
After establishing two successive committees in 1951 and 1953 to draft a statute for such a court, the Assembly decided to put off that exercise pending the elaboration of a definition of aggression, and the completion of the Draft Code of Crimes against the Peace and Security of Mankind. The Assembly adopted the Definition of Aggression in 1974 and the International Law Commission completed a first reading of the Draft Code in 1991. Fifty years of United Nations efforts culminated in the Commission's completion of a draft statute for an international criminal court in 1994. The statutes and rules of procedure of the ad hoc tribunals for the former Yugoslavia and for Rwanda would influence the statute of the future permanent court, he said.
The Ad Hoc Committee generally agreed that the proposed court should be established by means of a multilateral treaty and that it enjoy a close relationship with the United Nations. Discussion of complementarity (the principle which holds that the international court should be complementary to national criminal jurisdictions) centred on whether the principle should be more fully developed in the draft statute, and on the need to examine the role of the international court with regard to the jurisdiction of national courts.
On the issue of jurisdiction, members of the Ad Hoc Committee agreed that genocide, war crimes (including the 1949 Geneva Conventions) and crimes against humanity should be included in the draft statute. There was less agreement on the crimes of aggression and treaty crimes, he noted.
It was suggested that a mechanism be developed allowing the list of crimes to be periodically reviewed so as to permit the inclusion of other crimes.
The Chairman said the notion of inherent jurisdiction for the international criminal court would be facilitated if the scope of the court's jurisdiction were to be confined to a few core crimes, and if its statute precisely specified the mechanisms by which States would accept the jurisdiction, as well as State consent requirements and conditions for the exercise of jurisdiction, the mechanism for triggering the exercise of jurisdiction by the court, the role of the Security Council in activating the court, and the applicability of a statute of limitations to the exercise of the court's jurisdiction.
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As to the relationship between the proposed court and the Security Council, he said that it was generally agreed that the Council should be able to refer to the court situations that threatened international peace and security. On the financing of the proposed court, three trends emerged from the Ad Hoc Committee's deliberations. One favoured financing the court from the United Nations regular budget, another supported financing by States party to the statute and a third considered discussion of budgetary matters premature, prior to completion of discussion on other issues.
The Chairman said the court should have the broadest possible participation by States so as to promote universal acceptance. An international criminal court could function properly only if a substantial majority of members of the international community accepted its establishment and role.
HISASHI OWADA (Japan) said the establishment of the international criminal court should be examined with a sense of responsibility, scholastic rigor and political wisdom. It would be a revolutionary leap in the history of codification of international law.
The principle of complementarity stipulated in the draft statute was of cardinal importance, he continued. The international criminal court should complement the national judicial system, when and where it was not effective. Although the establishment of such a court had been anticipated by the Convention on Genocide of 1948, the supremacy of an international court was not stipulated. Saddling the court with an unrealistically ambitious role would jeopardize the universal accession of States to the statute.
He said the jurisdiction of the court should be limited to "core crimes", with other crimes left to national courts. It was the view of his delegation that the definition of crimes in the article of the statute regarding jurisdiction of the court should be more specific, in order to protect the rights of the accused.
On the relationship between the court and the Security Council, he cautioned against possible inconsistencies between the two bodies and against too much dependence of the court on the Council's judgement. Further discussion was needed on the question of application of national law, and prohibition of retroactive application should be more clearly articulated.
PETER McRAE (Canada) said the current international judicial system did not seem capable of responding adequately to situations of massive violations of human rights. The questions of criminal liability and individual accountability for outrageous crimes needed to be addressed at an international level.
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The situations that gave rise to the perpetration of crimes against humanity would inevitably be of concern to the Security Council. The conceptual link between the Council and an international criminal court was most clearly illustrated by the proposal to include aggression as a crime which would fall within the jurisdiction of the court. The Security Council took political decisions that had legal consequences, but that did not mean the court would be unable to operate in an independent and impartial manner.
The statute of the court should allow for jurisdiction in cases of referral by the Council, and should also recognize the authority of the Council over all members of the United Nations in particular situations. Cooperation with the court to bring alleged war criminals to justice should also be stipulated. It would obviate the need for the Security Council to establish ad hoc tribunals in the future.
JUAN ANTONIO YANEZ-BARNUEVO (Spain), speaking for the European Union, said an international criminal court should be established to address situations such as those which had led to the establishment of ad hoc tribunals. It should be a permanent independent institution with the widest possible participation and should be closely linked to the United Nations. The proposed court should be complementary to national criminal jurisdictions; resort would be made to it when the court decided that national systems were not available or were ineffective.
The jurisdiction of the proposed court should be confined to those crimes representing the most serious offenses of concern to the international community, he continued. Any court required clear and precise laws to adjudicate upon and administer; there should be certainty as to the crimes within the jurisdiction of the international criminal court. The statute should also contain provisions on the general rules of criminal law applicable by the court.
The rights of accused persons brought before the proposed court should be protected by proper standards of due process. States party to the court should be required to cooperate, particularly with respect to effective and speedy arrangements for the transfer of individuals to the court.
A consolidated draft convention would be the best instrument upon which to base the work of a conference of plenipotentiaries for the criminal court, he said.
LORENZO FERRARIN (Italy) said the court should be an independent permanent institution with the widest possible participation of States and closely linked to the United Nations. It should be complementary to national systems of criminal justice, but it was not intended to preclude national jurisdictions. The court's mission was essentially to provide a forum for
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trial and punishment of persons accused of crimes of great international concern, when recourse to national jurisdiction may be unavailable or ineffective.
It was important to safeguard the primacy of national jurisdiction legitimately exercised, and also to prevent the jurisdiction of the international criminal court from becoming merely residual and virtually irrelevant to national jurisdictions. Placing excessively stringent conditions on the exercise of the court's jurisdiction would impede its ability to fill in gaps in national judicial systems.
The court should have jurisdiction over the most serious international crimes as described in its draft statute -- genocide, aggression, war crimes and crimes against humanity. Consideration should also be given to extending its jurisdiction to certain treaty-based crimes such as torture and offenses under the Convention on the Safety of United Nations and Associated Personnel.
He said Italy strongly endorsed the inclusion of aggression among the crimes to fall within the court's jurisdiction. The international community should avoid sending a signal of regression with respect to the Nuremberg Charter. The difficulties in defining aggression for the purposes of criminal law could and should be overcome.
HUBERT LEGAL (France) said the draft statute of the proposed international criminal court was the most important subject before the Sixth Committee this year. The two sessions of the Ad Hoc committee had made useful clarification on the important matters of the statute.
He said the jurisdiction of the court should be limited to particularly hideous crimes. Given the exceptional nature of the judgements of the court, he approved of the trend to limit the list of crimes. It should also be clear that the court would try only persons responsible for crimes committed by a State.
Establishment of the jurisdiction of the court should depend on a prior determination by the Security Council of the existence of an act of crime. Since the list of crimes would be very limited, he went on, the jurisdiction of the court would be automatic.
Substantial work also remained to be done on the distribution of jurisdiction between the national courts and the international court. He was in favour of a concurrent jurisdiction of national and international courts. Once State courts had proven to be deficient or had demonstrated the desire to protect the guilty, an international court should exercise its jurisdiction.
He said the court should refer to "handing over", rather than the extradition of the alleged criminal. The court would be effective only if the
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convention establishing it were broadly ratified. The work of the Ad Hoc Committee should not be hasty, but substantive, and a thoughtful step-by-step approach was necessary.
CHEN SHIQIU (China) said it was premature to set a time for the convening of a diplomatic conference or to enter into preparations for such a conference. China favoured an evolutionary approach. The Sixth Committee could continue to discuss substantive questions related to the draft statute of a court, including its rules and administrative and financial questions. A consolidated draft statute for a diplomatic conference to establish the court should be prepared only when consensus was achieved.
The primary responsibility for the prevention and suppression of crimes of international concern still rests with States. The international criminal court should not supplant national courts, or act as an appeal court to national jurisdictions.
China was pleased that the complementarity principle was incorporated into the preamble of the draft statute but wished it had been fully articulated in the operative paragraphs. The draft statute had given the proposed court inherent jurisdiction over genocidal crimes; that egregious departure from the complementarity principle should be corrected. China opposed the concept of inherent jurisdiction and called for revisions of the articles concerned.
Establishment of the court through express consent of States was the only feasible way to proceed, he said. That draft statute had made clear that the court should be established by a multilateral treaty with its relationship to the United Nations to be governed by a special agreement. Acceptance of the court's jurisdiction should be based upon consent and voluntary agreement.
The jurisdiction of the court should be limited to the most serious international crimes -- genocide, war crimes and crimes against humanity. As to aggression, the difficulty was how to define the term. As to treaty crimes, many of those offenses -- such as torture under the Torture Convention -- did not meet the seriousness required. Others, such as endangering the safety of United Nations personnel, could not be said to be of universal concern.
CATE STEAINS (Australia) said many fundamental questions needed to be addressed in drafting a statute for a court. The Committee's report would provide a useful basis for governments to crystallize their views on what crimes should fall within the jurisdiction of the court.
The principle of complementarity was of critical importance, she continued. While the discussion of that principle was not exhausted, the Committee now had a good understanding of the range of approaches that could
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be taken. There had also been a beneficial discussion between experts in criminal procedure regarding extradition and mutual assistance or judicial cooperation.
Her delegation believed that the Ad Hoc Committee had fulfilled its mandate to review the substantive and administrative issues arising out of the draft statute of the court. Time was also ripe to plan for a diplomatic conference to adopt a statute of the court. She thought that such a conference should be convened in the first half of 1997, following a series of preparatory negotiating meetings in 1996.
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