COMMITTEE IS TOLD AGGRESSION SHOULD BE WITHIN JURISDICTION OF PROPOSED INTERNATIONAL CRIMINAL COURT

31 October 1995

Press Release
GA/L/2877

COMMITTEE IS TOLD AGGRESSION SHOULD BE WITHIN JURISDICTION OF PROPOSED INTERNATIONAL CRIMINAL COURT

19951031 Relationship between New Body and Security Council Is Discussed

Aggression constituted the "epicenter of international criminality", the representative of Greece told the Sixth Committee (Legal) this morning as it continued its consideration of a proposed international criminal court. Fifty years after Nuremberg and the recognition of aggression as a violation of international law under the United Nations Charter, the court could not ignore that crime. If the court were barred from exercising jurisdiction over aggression until such time as the Security Council decided on the matter, she said, it would be paralysed into inaction.

Germany said that if aggression were included in the court's jurisdiction, the Security Council would play an essential role. The Council should have the power to refer situations to the court, he said.

The representative of Venezuela said that while the Security Council played a primary role in the maintenance of international peace and security, that responsibility was not exclusive. The court should be open to the Council, but it should not be made the subject of political decisions.

The representatives of Sweden and Lesotho urged that the court adjudicate only the most serious international crimes. Both favoured the inclusion in the statute of a review mechanism whereby additional crimes could be added to the court's jurisdiction at a later date.

The principle of complementarity between national and international jurisdiction should be clarified by clear and precise rules which would grant priority competence to the international court, said the representative of Belgium.

The representative of Mozambique urged that consensus be achieved on complementarity and on inherent jurisdiction prior to the convening of a conference of plenipotentiaries.

When it meets again at 3 p.m. tomorrow, 1 November, the Sixth Committee will continue its discussion of the proposed international criminal court.

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue 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 last year to review issues arising from the draft statute for such court. It has been argued that 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.

(For background information, see Press Release GA/L/2876 of 30 October.)

Statements

EDUARDO J.B. KOLOMA (Mozambique) said the Ad Hoc Committee on the Establishment of an International Criminal Court had been established to review the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission.

The report of the Committee raised a range of substantive legal issues, which still needed to be properly addressed, he said. The principle of complementarity between international and national jurisdictions still needed to be clarified, as well as the questions of the specification of crimes to be addressed, and the inherent jurisdiction of the court. There must be consensus or at least a broad understanding on those questions before a decision was taken on the convening of a conference of plenipotentiaries.

He said the mandate for future work of the Committee should be changed to include preparation of a consolidated text of a convention for the establishment of an international criminal court. While ardently supporting the idea of the early establishment of the court, he had serious doubts about the possibility and viability of completing the bulk of the work in 1996.

HUG0 COVELIERS (Belgium) said he attached great importance to the establishment of an international criminal court, which would prosecute and punish perpetrators of crimes on an international level. The establishment of a single permanent court would obviate the need to convene ad hoc tribunals for particular crimes. He was pleased that genuine progress had been achieved in identifying the problems to be resolved before the establishment of the court.

With respect to the court's jurisdiction, he said it should include genocide, serious violations of rules of conduct of armed conflict and crimes against humanity. There should also be a review clause making it possible to extend the list of crimes to be brought before the court in the future. To implement the principle of complementarity, it was necessary to set clear and

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precise rules, inferring the priority of competence on the international court, which should not be excessively restricted in its jurisdiction.

He said the draft statute prepared by the International Law Commission would be an excellent basis for the establishment of an international criminal court. Now was the time to actively pursue the drafting of a convention, which should be subsequently presented to an international conference of plenipotentiaries.

VICTOR RODRIGUEZ CEDENO (Venezuela) said the court should exercise its jurisdiction when national courts were unavailable or ineffective, subject to the agreement of those governments. The principle of complementarity should be strictly observed.

The preparatory committee to develop an international convention would have to consider issues of applicable international law, he added. The list of international crimes with which the court would be seized should be limited. Venezuela had serious reservations about the crime of aggression being included in the draft. Only the most important international crimes should be included in its statute.

The independence of international organs was vital to their efficiency. The Security Council played a primary role in the maintenance of international peace and security, but that responsibility was not exclusive. In view of the grave situations in the former Yugoslavia and in Rwanda, ad hoc tribunals had been established. The proposed criminal court would be meant to replace those institutions with a permanent regime. The court should be open to the Council, but it should not be made the subject of political decisions. The court should be able to determine its own jurisdiction. An effort must be made to establish balanced principles and rules so as to ensure consistency with national laws, particularly those governing prisoners and the use of evidence.

PER SALAND (Sweden) said the proposed international criminal court should be complementary to national legal systems and resorted to only where the court found that those were unavailable or ineffective. The court's jurisdiction should be limited to "core crimes" -- the most serious offences under general international law. That fact, in conjunction with the principle of complementarity, would motivate the court's inherent jurisdiction. He was attracted by the idea of a review mechanism which could be used to widen the range of crimes within the court's jurisdiction.

Penalties in the court should be specified and confined to imprisonment. There was no need to establish fines since the court would adjudicate only the most serious offences. The general rules of criminal law to be applied by the

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court and the offences under the court's jurisdiction should be clearly spelled out.

FANI DASCALOPOULOU-LIVADAS (Greece) said the establishment of ad hoc tribunals for the former Yugoslavia and for Rwanda had made clear that the need for an international criminal court could not be questioned any longer.

Greece believed that the principle of complementarity should be interpreted in a restrictive way. The court should be able to decide not only whether it had jurisdiction over certain crimes, but whether national jurisdiction satisfied in each particular case the requirements which would be set out in the statute. Greece agreed with the list of crimes contained in the draft statute, with the exception of treaty crimes dealing with anti- terrorist conventions.

Aggression constituted the epicenter of international criminality, she continued. No international criminal court could afford to ignore it, 50 years after the Nuremberg trial and the formal recognition of aggression by the United Nations Charter as a violation of international law. Aggression was a crime that could only be prosecuted in an international court since, in the vast majority of cases, national courts of the victim State or States would be least capable to pass judgement.

The court should not be barred from exercising its jurisdiction over an act of aggression in situations in which the Security Council had not decided on the mater. If it were so barred, it would be paralysed into inaction.

REINHARD HILGER (Germany) said that in 1995 the world had witnessed malignant, calculated and devastating crimes, which were insulting to the conscience of mankind. He welcomed the first steps towards international criminal jurisdiction, for there was a need to create a general permanent system based on a treaty.

The draft statute presented by the International Law Commission could be considered a remarkable achievement, he said, but it clearly needed improvement and adjustments. The principle of complementarity was important, and prosecution and punishment must remain a responsibility of the State. Only in cases where national trial procedures may be unavailable or ineffective should an international criminal court play a role.

He welcomed the tendency to limit the jurisdiction of the court to extremely serious crimes and said that aggression should not be excluded; it continued to be one of the crimes covered by the draft code of crimes against mankind. The Security Council would play an essential role in the functioning of the court, if aggression were included in its jurisdiction. The Council should have the power to refer a situation or a matter to the court.

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He said a State that became party to the statute should thereby accept the jurisdiction of the court for the limited number of particularly serious crimes. If national jurisdiction was unavailable or ineffective, the prosecutor should have the power to investigate and prosecute.

PHAKISO MOCHOCHOKO (Lesotho) said the establishment of a permanent international criminal tribunal was long overdue. For 50 years the international community had recognized that such a court was an essential element in building respect for human rights throughout the world.

The primary responsibility for protecting citizens from human rights violations rested with national governments, but more often than not governments had either been unwilling or unable to take appropriate action. As a result, the perpetrators of many criminal acts had escaped without punishment.

The international community could not afford to undertake the daunting task of establishing ad hoc tribunals in every corner of the world in which civil war broke out -- as in the case of the former Yugoslavia and Rwanda. Ad hoc tribunals were no substitute for a permanent international criminal court with the ability to prosecute those accused of gross violations of humanitarian and human rights law.

He said the draft statute gave the court jurisdiction with respect to genocide, aggression, war crimes and treaty crimes. Limiting jurisdiction to the most serious international crimes would promote broad acceptance of the court, thereby enhancing its effectiveness. The statute should leave open the possibility of broadening jurisdiction at a later date.

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