DEBATE ON PROPOSED INTERNATIONAL CRIMINAL COURT CONTINUES IN SIXTH COMMITTEE

Press Release
GA/L/2880

DEBATE ON PROPOSED INTERNATIONAL CRIMINAL COURT CONTINUES IN SIXTH COMMITTEE

The penalties to be applied by the proposed international criminal court should be limited to imprisonment, the representative of Portugal told the Sixth Committee (Legal) this afternoon. Since the court's jurisdiction would be limited to the most serious international crimes, the application of fines would be unnecessary. Portugal had abolished the death penalty and would oppose its international application.

The representative of Singapore said that in applying the principle of complementarity for the international court, it was necessary to examine existing national practices governing judicial cooperation.

If the court were to obviate the need for new tribunals created by the Security Council, it might be desirable to give the Council the power to refer situations to the court, said the representative of the United Kingdom.

The representative of Algeria said that only States directly involved should be able to bring situations to the court. Direct recourse to the court by the Security Council would substantially increase the Council's power.

Indonesia said that the court should be a judicial body to which States had recourse; it should not be allowed to undermine national enforcement.

The representative of the Czech Republic said that limiting the number of crimes to be adjudicated by the court would promote broad acceptance, enhance effectiveness, credibility and moral authority, avoid overloading the court, and limit the financial burden imposed on States party to the statute.

Nigeria said a solution must be worked out for possible conflicts of interest between States in whose territory crimes were committed, States that had custody of accused persons, States whose nationals were victims of the crime and the State whose nationals were accused.

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Recent events had shown that most serious violations of international humanitarian law occurred in armed conflicts of a non-international character, said the representative of Belarus. Bearing that in mind, the proposed court should have a review mechanism by which additional crimes could be added to the court's jurisdiction.

Also speaking this afternoon were the representatives of Liechtenstein, Thailand, Democratic People's Republic of Korea, Bulgaria, Albania, Lebanon and Swaziland.

When it meets again at 10 a.m. tomorrow morning, 3 November, the Sixth Committee will 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). The Committee was established by the General Assembly in December 1994 and has since held two sessions, during which it discussed main issues arising from the draft statute of the court prepared by the International Law Commission.

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

Statements

CHRISTIAN WENAWESER (Liechtenstein) said several questions of detail remained to be discussed further. The statute of the court had to be based on the principle of complementarity, since criminal prosecution had to remain, as a rule, the responsibility and competence of States.

The provisions regarding the jurisdiction of the court had to be drafted in accordance with the underlying concept of the court, which stipulated that the court should have jurisdiction over the most serious crimes of concern to the international community as a whole, he continued. The jurisdiction of the court should be inherent.

The question of the inclusion of the crime of aggression was problematic and should be reconsidered, he said. The definition of aggression, contained in General Assembly resolution 3314 (1974) was of a political, rather than legal nature, and did not meet the requirements of the statute of an international criminal court.

Another sensitive issue concerned the decision to be taken by the Security Council regarding an act of aggression, he continued. The problem of inclusion of treaty crimes in the jurisdiction of the court needed to be further discussed. At an initial stage, the draft statute should be limited to a set of core crimes; it should contain a provision for a review mechanism to be used to widen the jurisdiction of the court.

PAULA ESCARAMEIA (Portugal) strongly supported the early establishment of an international court empowered to determine international responsibility of individuals who perpetrated serious crimes. Such a court should have solid jurisdictional powers and should be accepted by the widest possible number of countries from all regions of the world.

Although the jurisdiction of the court should be restricted to the most serious crimes, due account should be taken of the constant changes that occurred in the international scene. For that reason, she said, she supported the proposal presented by Denmark to provide for an institutional mechanism

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for periodic revision of the list of crimes. Such a mechanism should be enshrined in the treaty establishing the international criminal court.

She said penalties should be confined to imprisonment, since the gravity of the crimes would exclude the application of fines. Portugal had abolished death penalty and would oppose its international application. Regarding the principle of complementarity, she said the court should decide whether a national system was not available, ineffective or did not give guarantees that alleged criminals would be duly tried in national courts.

RAMTANE LAMAMRA (Algeria) said the creation of an international criminal court was a central aspiration of the post-cold war period. The establishment of such a jurisdiction would be a welcome departure from summary judgements of customary power politics. An effective criminal jurisdiction would be guided only by the rule of law. Political influences could only distort that process.

Algeria welcomed the progress achieved regarding administrative arrangements for a plenipotentiary conference as well as substantive issues contained in the draft statute. The court's jurisdiction should be limited to offenses which were clear and beyond dispute. An overly restrictive approach would not satisfy the need for an independent court. The list of crimes to be considered by the court -- genocide, war crimes, crimes against humanity, massive human rights violations, drug trafficking and terrorism -- were grave offenses against the peace and security of mankind.

Only States which were directly involved in a situation should be able to bring it to the attention of the court, he said. He expressed reservations about the Security Council's ability to bring cases to the court's attention without the permission of the States concerned. Such a procedure would substantially increase the power of the Council. It would amount to a re- writing of the Charter. At the same time, there was a role for the Council in carrying out the decisions of the court. Complementarity between the proposed court and national courts should aim for cooperation in criminal justice matters.

JAROSLAV HORAK (Czech Republic) said a deeper analysis of the question of complementarity was needed. The international court should be complementary to national criminal justice systems in cases where necessary trial procedures might not be available or might be ineffective. The international court should not become merely residual to national jurisdiction, nor should it be prohibited from having exclusive jurisdiction over some crimes. Should the crime of aggression be included within the jurisdiction of the court, that jurisdiction should be exclusive.

A well-functioning court, especially in its first phase of existence, should be limited to prosecuting a few "hard core" crimes -- war crimes,

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crimes against humanity and, under a specific regime, genocide. The jurisdiction over those crimes should be inherent in character. Limiting the number of crimes to be adjudicated by the court would resolve some of the most difficult questions raised by the relationship between the court and national jurisdictions. A restrictive approach would promote broad acceptance; enhance effectiveness, credibility and moral authority; avoid overloading the court; and limit the financial burden imposed on States party to the statute.

Under the draft statute, he continued, the role of the Security Council in the court was in accordance with the Council's primary responsibility for the maintenance of international peace and security and with its existing powers under the Charter. The Council would merely refer a general matter or situation to the court; it would not actually bring before it cases against specific individuals. The independence of the court would be preserved. The intervention of the Council in triggering the jurisdiction of the court would be particularly relevant if the jurisdiction of the court were limited to the most serious crimes that might threaten international peace and security.

ISAAC E. AYEWAH (Nigeria) said the creation of an international criminal court was a difficult matter that had been on the agenda of the international community for more than 50 years. The report of the Ad Hoc Committee was a significant step towards reaching an agreement and an eventual adoption of its statute.

The principles of substantive criminal law, the rules of criminal procedure and the standards of human rights to be applied must be determined and incorporated in the statute, he said. The draft code of crimes against mankind and the statute of the court should be linked. For the court to attract the support of various legal systems, the principles of complementarity and no crime without law must be strictly observed. The court would supplement but not displace national jurisdiction.

The court would encounter difficulties if a hierarchy was established in which the court would be superior to national courts, he said. Restricting the jurisdiction of the court to the most serious crimes of concern to the international community was the only safeguard for achieving the objective of setting up a workable court.

He said a satisfactory and acceptable solution must be worked out for the possible conflict of interests that would arise between a State in whose territory the crime was committed, the State that had custody of the accused, the State whose nationals were victims of the crime and the State whose nationals were the accused. One single regime guaranteeing the protection of fundamental rights of individuals, established and practised by States contained in existing treaties should prevail.

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THOMAS SAMODRA SRIWIDJAJA (Indonesia) said an international criminal court would contribute towards securing effective prosecution of individuals responsible for serious crimes. It would also enhance cooperation among States in the enforcement of the law. The underlying premise of the statute was that the court should be complementary to national criminal justice systems. Such a principle created a presumption in favour of national jurisdiction.

While many concerns had been voiced with regard to the jurisdiction of the court, he thought it should be consensual, particularly for those States that had a direct interest in the case. The court should be a judicial body that States had recourse to and not a body that would undermine national enforcement efforts. A close relationship with the United Nations would enhance the authority of the court and resolve many procedural and technical difficulties.

On the question of the appointment of the judges and the prosecutor, he said that it was essential to guarantee impartiality, independence and due process without the judges and the prosecutor being influenced by political or social pressures. It was also important to afford all countries the opportunity to participate in discussions leading to the establishment of an international criminal court.

KARN CHIRANOND (Thailand) said that the proposed international court should be established as a principal organ of the United Nations, similar to the International Court of Justice. Judges for the court should be selected in a way that provided for equitable geographic representation as well as the representation of the principal legal systems of the world.

On the principle of complementarity, he said that the international court should be complementary to national courts in cases where national procedures might be unavailable or ineffective. In achieving complementarity, a clear border must be drawn between national jurisdictions and that of the international court. The list of crimes should be limited to the most serious crimes of international concern.

He said Thailand agreed with those who had stated that the substantive and procedural rules of the new court should be clearly provided in its statute and in annexes, rather than through reliance on applicable treaties and the principles and rules of general international or national law. The Ad Hoc Committee should prepare a consolidated document for consideration by an international conference of plenipotentiaries.

CHA JONG NAM (Democratic People's Republic of Korea) said that the establishment of an international criminal court had been on the agenda of the United Nations for scores of years. The failure to reach agreement on the

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court had derived from the divergent political and legal concepts among Member States. His Government had consistently stated that the United Nations should be reformed into a democratic and fair international organization.

A number of complicated and serious issues were still unresolved with regard to the establishment of an international court, he continued. It was important to explore the most realistic and impartial way of removing divergent views by giving due consideration to concerns expressed by Member States, rather than setting a timetable for the establishment of a court. If the court was established without resolving outstanding points, it might lose its universality and see its role weakened.

It was of utmost importance to set out clearly the relationship of jurisdictions between an international criminal court and national courts so as to protect the jurisdiction of sovereign States. The jurisdiction of the international court should be exercised subject to the prior consent of States party to its statute, and limited to the most serious international crimes. The draft statute should respect the sovereignty of Member States; any provisions that could be abused in such a way as to violate the sovereignty of States should be given additional consideration. The international court should respect sovereignty, non-interference in the internal affairs of States, impartiality, democracy and objectivity.

ELIZABETH WILMSHURST (United Kingdom) said the work of the Ad Hoc Committee had shown it was possible to put to rest concerns regarding models for an international criminal court. She had detected new trends which pointed even further towards the establishment of an effective, efficient and universally acceptable court.

The proposed court should be established by a treaty, and it should have a strong link to the United Nations, she said. In order to ensure widespread support, there should be a high number of ratifications and accessions before the court treaty entered into force. That way, the court would be established with strong international support. The court should be a permanent institution, but in order to preserve flexibility, the judges and staff should be permanently available rather than permanently engaged.

The international court should be complementary to national criminal jurisdictions, she continued. Resort should be made to it when national systems were not available or were ineffective. Provisions on that complementarity principle should be included in the statute.

She said the Ad Hoc Committee had seen growing consensus in favour of limiting the jurisdiction of the court to three or four of the categories of crimes which represented the most serious international offenses. Those offenses should be clearly defined, and the general rules of international criminal law which would apply should be spelled out.

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If the court was to obviate the need for new tribunals created by the Security Council, it may be desirable to give the Council the power to refer situations to the court, she said. That would be a difficult matter and the judicial process should be guarded against political pressure. For a court to be acceptable, it must protect the rights of accused persons. There must be satisfactory arrangements for cooperation between States parties and the court in respect of investigations and the effective and speedy transfer of individuals, taking account of existing structures of judicial cooperation. The court's jurisdiction should not be retroactive.

SYARGEI S. SYARGEEU (Belarus) said the interconnection between the international criminal court and national judicial organs should be reflected in the draft statute. He supported the limitation of the jurisdiction of the court to the "hard-core crimes". While the court would have inherent jurisdiction over the crime of genocide, the regime stipulated by the genocide Convention of 1948 clearly did not apply to States which were not parties to it.

In order to establish the court's jurisdiction in relation to crimes under general international law, all hard-core crimes, including genocide, should be defined in the statute itself, he said. Recent events had shown that most serious violations of international humanitarian law occurred in armed conflicts of a non-international character. In that regard, he supported the idea of inscribing a review mechanism.

Speaking about the relationship between the Security Council and the court, he suggested deletion of a paragraph establishing a strict relationship between the actions of political and judicial organs in all situations involving a threat to or breach of peace or an act of aggression under Chapter VII of the Charter. In fact, that interrelationship encompassed a far broader category of relations than acts of aggression.

Judges of the court should satisfy the requirement of experience in both criminal and international law, he said. Any State party to the statute which accepted the jurisdiction of the court should be entitled to request it to review the decision of the prosecutor not to initiate an investigation or not to file an indictment. The criminal justice system should not simply satisfy the interests of one member of a community; it should restore peace and justice in relations between all members of a community.

BRANIMIR ZAIMOV (Bulgaria) said the proposed court should be established as an independent permanent judicial institution by means of a multilateral treaty. The court, while preserving its independence, should perform its functions in close relationship with the United Nations. Such a relationship could be governed by an agreement between the two institutions.

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The court should function as a permanent institution that should not substitute, but rather complement national criminal justice systems, he said. The court's jurisdiction should focus on clearly defined crimes. The principles to be followed in defining the crime of aggression, as well as other crimes falling within the court's jurisdiction, should be consistent with the approach to the draft code of crimes against peace and security of mankind.

SOKOL BRAHA (Albania) said that the establishment of an international criminal court would be an important contribution to the prevention of future conflicts. The court should be a permanent institution convened as needed. The court should be complementary to national jurisdictions. Complementarity between international and national jurisdictions should be clearly provided for in the statute.

Only the most serious international crimes -- genocide, war crimes and crimes against humanity -- should be brought before the court. The statute should clearly describe crimes and their punishments. Grave breaches of the four Geneva Conventions and their first protocol and of the torture Convention should also be considered by the court, along with the crime of apartheid.

A primary motivation for the establishment of the international court had been the need to avoid the creation of ad hoc tribunals, which were a burden on the international community. While there was still room for discussion on a number of issues, the debate should not go on forever. A preparatory committee should be established to work on a text for presentation to a conference of plenipotentiaries, preferably in 1997.

JOSEPH AKL (Lebanon) said that the international criminal court should be established as an independent and permanent body connected to the United Nations. The court's composition should reflect equitable geographic distribution and a variety of legal systems. The court should be employed when national jurisdictions failed to act or were unavailable.

The rules of the court should be prepared and approved by States party to its statute. The competence of the court should be limited to the most serious international crimes. The competence of the court might be extended eventually, provided that a large number of States parties desired that extension.

Lebanon believed that more work was necessary to resolve outstanding difficulties associated with the criminal court. The mandate of the Ad Hoc Committee should be broadened to allow the elaboration of a consolidated convention to be considered by a conference of plenipotentiaries. That drafting exercise should be careful not to conflict with ongoing work in the International Law Commission on the elaboration of a draft code of crimes against the peace and security of mankind.

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THOMAS S. MASUKU (Swaziland) subscribed to the initiative of the establishment of a permanent independent, stable and consistent court. With the system of ad hoc tribunals, there was an obvious lack of stability, continuity and consistency, which had a negative impact on the development of international criminal law.

The efficacy of the court in its infancy stage would be enhanced by limiting its jurisdiction to the core crimes, he continued. However, use must be made of the draft code of crimes against mankind. A very strong case could be made for inclusion of international terrorism, which could be one of the crimes of which the court could be seized at a later stage.

Complementarity and jurisdiction were among the issues that still needed to be resolved, but that should not lead to a state of paralysis and inaction. The world had waited long enough. Those who had sown seeds of destruction must reap their just punishment, he said.

LIONEL YEE WOON CHIN (Singapore) said that recent events in the former Yugoslavia and Rwanda had highlighted the need to deal with serious crimes of concern to the international community. An international criminal court could only be effective if its jurisdiction was widely, if not universally, accepted by States.

The principle of complementarity was the cornerstone of the draft statute, he continued. It was necessary to work within the framework of existing national criminal justice systems and existing arrangements governing judicial cooperation between States. It was also necessary to fill lacunae in such systems and arrangements, rather than override them. Imposition of new legal regimes was inconsistent with the principle of complementarity.

Another area of fundamental importance was the jurisdiction of the court, he said. The statute for the court should set out a judicial mechanism for the prosecution of crimes of serious concern for the international community, rather than deal with the substantive definition of crimes themselves. The definition of crimes should be left to the multilateral treaties regarding those crimes, and the statute should define its jurisdiction by reference to the specific treaties and provisions.

Speaking about provision of a fair trial, he said that matters needing further consideration included the powers of the presidency to review a decision by the prosecutor, the extent to which the court should be bound by its previous decisions, and the requirement for decisions in the trial chamber to be taken by a majority of three of the five judges. The conduct of investigations, procedure and the rules of evidence to be applied should be drafted together with the statute.

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