PROPOSED INTERNATIONAL COURT SHOULD HAVE INHERENT CRIMINAL JURISDICTION, LEGAL COMMITTEE TOLD
Press Release
GA/L/2878
PROPOSED INTERNATIONAL COURT SHOULD HAVE INHERENT CRIMINAL JURISDICTION, LEGAL COMMITTEE TOLD
19951101 Speakers Address Roles of Security Council, International Criminal Court; Possible Conflict Between International, National Jurisdiction also AddressedThe proposed international criminal court should be an independent institution with inherent jurisdiction over serious international crimes, the Sixth Committee (Legal) was told this afternoon.
The representative of New Zealand said that it would be "shameful" if permanent members of the Security Council were able to prevent the criminal court from dealing with a situation by claiming that the Council was already seized of the matter. Even so, the representative of the United States said the statute should recognize the authority of the Security Council to refer situations to the court. A primary purpose in establishing the court was to avoid the necessity for the Council to establish ad hoc tribunals.
The representative of Mali said that aggression was a serious crime against peace and security, but there was not yet consensus on a definition of that crime. The representative of South Africa added that aggression and treaty-based crimes might be included in the court's jurisdiction at a later stage.
The representative of Malaysia said that national criminal jurisdictions should be given precedence over the international court, especially when the matter in question involved a national of that State. It remained to be determined whether inherent jurisdiction was consistent with the United Nations Charter. Ireland's representative suggested that cases be brought before the international court only when national courts had proven inadequate. It was of the utmost importance to establish who should have the power to give jurisdiction to the international court.
Also speaking this afternoon were the representatives of Netherlands, Poland, Guatemala, Kenya, Brazil and the observer of the International Committee of the Red Cross.
The Committee will meet again at 10 a.m. Thursday, 2 November, to continue its discussion of the proposed international criminal court.
Committee Work Programme
The Sixth Committee (Legal) met this afternoon to continue consideration of the report of the Ad Hoc Committee on the Establishment of an International Criminal Court (document A/50/22).
In its report, the Committee recommends that the General Assembly organize work towards an early completion of a draft convention establishing the court and change the mandate of the Committee to draft such a text. The original mandate of the Committee permitted it to review issues arising from the draft statute of the court, proposed by the International Law Commission. The Committee was instituted by the General Assembly in December 1994 and has since held two sessions.
(For background information, see Press Release GA/L/2876 of 30 October.)
Statements
TEUNIS HALFF (Netherlands) said he pictured an international criminal court as "a strong, alert and independent judicial organ, well equipped to try the most serious crimes of concern to the international community as a whole". Limiting the jurisdiction of the court to only a few crimes might facilitate a solution. It would be preferable to confine the jurisdiction to genocide, serious violations of the laws and customs applicable in armed conflict and crimes against humanity.
He said he would also prefer not to include, at least for the time being, the crime of aggression because of the difficulties in developing a clear-cut definition of such a crime and because of its political character. Review conferences should be made possible, in order to ensure the possible inclusion in the future of the crime of aggression and possibly other serious crimes.
"The consent of States to the exercise of jurisdiction by the court may be indispensable if the court has jurisdiction over a wide range of crimes of very different nature, some of which could equally be dealt with on any national basis", he continued. "Such consent, however, becomes much less necessary and much less desirable with regard to such crimes as genocide and other crimes against humanity. Those crimes are often committed by organs of the State that could easily frustrate the functioning of the court if consent to their own prosecution were required."
Growing importance was attached to the concept of complementarity, he said. That notion should be further elaborated in several parts of the statute. Other issues that deserved further discussion were the question of admissibility, the roles of the prosecutor and presidency and the cooperation between the court and national jurisdictions. Also, a compromise needed to be
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achieved between the requirements of various legal systems, in particular the systems of common and civil law.
MAREK MADEJ (Poland) said the principle of complementarity constituted one of the most essential and general elements of the whole idea of establishing an international criminal court. Even after the establishment of such a court, national criminal justice systems would retain their primacy and principal applicability in all cases including crimes of international concern. The reference to the principle of complementarity should make it very clear to what extent the primacy of national jurisdictions would be preserved in the statute of the court.
The inherent jurisdiction of the court should not be exclusive, but certainly mandatory, he continued. If a particular State became a party to the convention establishing the court, additional consent of that State to the inherent jurisdiction of the court would not be required. Genocide should be included in the inherent jurisdiction of the court.
The question of inclusion of aggression into the scope of inherent jurisdiction of the court required further careful consideration, he said. Serious violations of the laws and customs applicable in armed conflicts should be combined with grave breaches of the Geneva Conventions as one category of crimes. Such combined category of war crimes, as well as crimes against humanity should also be included in the jurisdiction of the court. The scope of so-called treaty crimes should be further discussed and elaborated.
SUBRAMANIAM THANARAJASINGAM (Malaysia) said it was necessary to determine where and how to draw the line between the jurisdiction of the international criminal court and national jurisdictions. The jurisdiction of national criminal courts should be given precedence over the international court, especially when the matter in question involved a national of that State.
As regards inherent jurisdiction, he said, it must be determined whether that idea was consistent with the principle of national sovereignty enshrined in the United Nations Charter, whether it was consistent with the principle of complementarity and whether it was compatible with the principle requiring the consent of States to the jurisdiction of the international criminal court.
Malaysia believed that articles of the draft statute dealing with the Security Council should be stricken, as they would undermine the impartiality of the court. The proposed articles would confer greater powers on the Charter than had been provided under the Charter. The role of a political Security Council was incompatible with that of a judicial institution such as the criminal court. The permanent Council members, with their veto power, could render the court ineffective by blocking the referral of cases to it.
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Further consideration should be given as to whether consent requirements should extend to additional States which would have a significant interest in cases, such as the State of nationality of victims and of accused persons, and the target State of the crime. The consent of the State of nationality of the accused might be important in cases where its Constitution or fundamental law prohibit extradition of its nationals.
With regard to crimes to be considered by the international court, he said that the constituent elements of each crime should be specified to avoid ambiguity. Malaysia endorsed the definition of genocide contained in the genocide Convention. The precise legal definition of aggression might be difficult to ascertain. War crimes might be open to interpretation and it might be impossible to precisely define crimes against humanity.
FRANCIS MAHON HAYES (Ireland) said the establishment of an international court would be a vital element of international peace and security. The ad hoc nature of the tribunals for the former Yugoslavia and Rwanda made clear that the international community would be better served by a permanent institution.
The proposed international court should be called upon to adjudicate situations of exceptional gravity, he continued. Only through an institution such as the proposed court could the international community effectively demonstrate that massive human rights violations would never go unpunished.
He said the court should have the right to prosecute acts such as murder, torture and rape when committed during armed conflict. But its jurisdiction should be extended to cover such major violations as summary or arbitrary executions, torture and disappearances committed in peace time.
The principle of complementarity would determine whether the basis upon which the court operated was judicial or otherwise, he said. Under that principle, courts which would normally adjudicate those crimes would be national courts. Only when national courts proved inadequate would cases be brought before the proposed new court. It was of the utmost importance to establish who should have the power to give jurisdiction to the international court.
As to crimes to be considered by the court, he said drug trafficking should not have been removed from the initial list. The argument that apartheid should remain on the list for historical or deterrent reasons was also understandable. The crime of aggression would be the most important crime to come before the court. If the court was not mandated to deal with that crime, it would lose its raison d'etre. To function properly, an international criminal court must have jurisdiction to deal with the crime of aggression. It was up to the Security Council to determine the existence of a threat to international peace and security and to decide on measures to be
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taken to meet such a threat. Such a crisis might also lead the proposed court to take action. The court should operate independently in such circumstances; it was essential that there was no blurring of the court's responsibilities with those of the Council.
JAMISON S. BOREK (United States) said much remained to be done to develop a court that would be acceptable to the international community. The discussions in the Committee had demonstrated a growing consensus to restrict the jurisdiction of the court to genocide, crimes against humanity and war crimes. Some governments had also been attracted to the proposition that crimes under the torture Convention and the Convention on the Safety of the United Nations and Associated Personnel be incorporated in the court's jurisdiction.
She did not believe that there was enough support to include aggression, drug crimes, terrorist crimes or violations of the apartheid Convention within the court's jurisdiction. The crimes of terrorism and drug crimes also presented particular problems of investigation and prosecution.
The question of consent deserved further consideration, as the current focus on territoriality would often yield unfair and illogical results, she continued. It was also important to elaborate further the principle of complementarity. She believed that, "for a permanent court which will face many possible and unknown cases, national jurisdiction should enjoy a presumption of regularity".
The statute should recognize the authority of the Security Council to refer situations to the court, she said. It should also ensure that all States must cooperate with the court. A primary purpose in establishing a permanent international criminal court was to avoid the necessity for the Security Council to establish ad hoc tribunals to deal with crimes arising under international humanitarian law.
FRANCISCO VILLAGRAN KRAMER (Guatemala) said different legal systems would have to reach an agreement on certain issues in order for the court to function, and negotiations were needed between countries. The principle of complementarity must be viewed in a new context. He disagreed that the court must function only when justice collapsed or was ineffective in a particular country.
Speaking about the jurisdiction of the court, he said that it entailed application of existing conventions, as well as norms of general international law. Crimes that would fall under the categories of treaties and general principles of international law should include genocide and other international crimes. Apartheid, drug crimes and international terrorism should be added to the list.
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The question of applicable law should go hand in hand with the question of the list of crimes, he continued. Small countries might also visualize the court as a mechanism of settling their disputes with larger countries. Discrepancies as to the nature of the notions of extradition and delivery of accused persons to the court were a cause for discussion.
Speaking about the role of the Security Council, he said it had been established by the Charter. The Council had competence of both legal and political nature, but the use of the veto power was a cause for concern.
CHEICKNA KEITA (Mali) said that the establishment of an international criminal court would raise the struggle against crime to the international level. In today's world, serious traumas experienced in one State were often felt in neighbouring territories, as occurred in the former Yugoslavia and Rwanda. The proposed international criminal court should be a permanent institution. Ad hoc courts could not play any role in deterrence.
He said the proposed court should be limited to the most serious international crimes -- genocide, war crimes, crimes against humanity and terrorism. The draft code of crimes against the peace and security of mankind should serve as a guide and the court should only prosecute individuals. Aggression was a serious crime against peace and security, but there was not yet a consensus definition of that crime. Also, there were practical difficulties associated with prosecuting States and their leaders.
The criminal court should be made up of highly qualified international jurists serving in their individual capacities, he added. The mandate of the ad hoc committee on the establishment of an international criminal court should be changed into that of a preparatory committee for an international conference, whose purpose would be to advance the drafting of a court statute.
FELICITY WONG (New Zealand) said that she would like to see an international conference of plenipotentiaries in 1997. The political reality for reasonable governments today was that it was now indefensible to argue against the establishment of a court. No State could credibly argue that there should be no international court before which criminals such as those responsible for atrocities in Rwanda and Yugoslavia could be called to account.
The international community did not need a court that would remain latent until activated at the will of the strong against the marginal, she continued. Access to justice should be available equally to the weak and powerful. The decision to pursue individual criminals should reside with the court itself. Also, the court should be the body that carried out the principle of complementarity and decided whether national jurisdictions were available and effective.
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If the international court was limited to the most serious crimes, she said, the presumption must be that the court would have a superior claim to exercise jurisdiction. The very nature of the crimes contained in the draft statute demanded that the international community seek collective responsibility. The court must not have the burden of demonstrating that it had jurisdiction by proving there was no effective national jurisdiction available.
She said the ability of the court to initiate an independent prosecution was of paramount importance, regardless of whether a national investigation was taking place. The prosecutor should be able to investigate and prosecute cases on his own initiative. The court must be able to assume priority over national prosecutions without having to prove first that national prosecution was ineffective. The burden of rebutting the court's superior claim to jurisdiction must lie with national authorities, not with the court.
It would be shameful if the large and powerful, with permanent privileges on the Security Council, were able to prevent the criminal court from dealing with a situation by simply claiming that the Council was already seized of the matter, she continued. The court must be truly independent. The court should have inherent jurisdiction over all the hard core international crimes. The court should also have jurisdiction over certain treaty-based crimes, including torture and offenses established by the Convention on the Safety of United Nations and Associated Personnel. The court could also have a role in adjudicating terrorism in cases with the agreement of the States involved. New Zealand also favoured addressing the crime of aggression and in establishing a role for the Security Council in that aspect of court jurisdiction.
PIETER KRUGER (South Africa) said that the establishment of an international criminal jurisdiction would act as a strong deterrent to those individuals or groups contemplating acts of genocide and other humanitarian crimes. Such a court would prevent the proliferation of ad hoc tribunals, such as those created for the former Yugoslavia and Rwanda. The court should be established by a multinational treaty, rather than by amendment of the United Nations Charter. As a practical matter, the court should start modestly, with the potential to expand its jurisdiction and activities once it had proven its efficacy. Initially, only the core international crimes of genocide, war crimes and crimes against humanity should be included in the court's jurisdiction.
Aggression was an act of war and its application to individuals was not yet possible, he continued. Aggression had not been sufficiently defined to allow for prosecution before an international criminal court. Treaty-based crimes should not be included in the court's jurisdiction. Aggression and treaty-based crimes might be included in the court's jurisdiction at some stage, but such a step was too ambitious at the initial stages.
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South Africa was not averse to the Security Council referring situations to the international courts, he said. That would shield the court from having to make judgements on matters that were essentially political in nature and fell properly within the domain of the Council. Such a referral must not be prescriptive in nature, since the court must remain an independent judicial body. Such a provision would obviate the need for the creation of further ad hoc tribunals by the Council.
S. THUITA MWANGI (Kenya) supported the establishment of a just and efficient court that would enjoy universal acceptance and command the respect of the international community. As there remained critical areas of concern and some major issues needed to be clearly defined, the time was not ripe for convening a diplomatic conference to adopt the draft statute.
The principle of complementarity underscored the primacy of the jurisdiction of national courts, he continued. International criminal jurisdiction should in no way appear to compete with established national jurisdictions. It was necessary, therefore, to elaborate that principle further, so that each article was interpreted. Another topic that remained to be elaborated was the relationship between the draft code of crimes against the peace and security of mankind and the statute of the court.
In conclusion, he said that many developing countries had been unable to send experts to the ad hoc committee meetings. To that extent, its discussions had been limited and unbalanced. The credibility of the court and, therefore, its acceptability could only be enhanced if wide and effective participation of all States was made possible.
JOAO CLEMENTE BAENA SOARES (Brazil) said that creation of a permanent international criminal court would obliterate the need for the proliferation of ad hoc tribunals. The ad hoc committee had fulfilled its mandate to review issues arising from the draft statute of the court. A close relationship between the court and the United Nations was a basic condition for its universality.
Concerning the jurisdiction of the court, he said that it should be limited to the most serious crimes and should apply only to crimes clearly defined in its statute. However, there was a risk of duplicating the work done on the draft code of crimes against mankind. The principle of complementarity was also very important. Although the discussion on the range of that principle was far from concluded, the positions of delegations on the issue had been defined. The principle of State consent also needed further deliberation. The acceptance of the court's jurisdiction by a State was not mandatory, but voluntary.
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BRUNO ZIMMERMANN, observer for the International Committee of the Red Cross, said his organization was interested in developments regarding the repression of war crimes, because those related directly to the implementation of international humanitarian law. The statute should not impose any obligations upon States on the basis of treaties to which they were not party. Reference to those instruments would, however, provide guidelines for the court, enabling it to decide on its own jurisdiction in cases involving exceptionally serious crimes of international concern.
The article on war crimes could also cover crimes committed in non- international armed conflicts, he continued. It was also necessary to add "unlawful confinement" to the crimes defined as "grave breaches of Geneva Conventions". Despite the commendably broad interpretation of the laws and customs of war that had been made by the International Criminal Tribunal for the Former Yugoslavia, he would prefer a more explicit reference to the treaty-based and customary rules that also governed non-international armed conflicts.
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