MEMBERSHIP OF SECURITY COUNCIL KEY FACTOR IN PLAN FOR WORLD CRIMINAL COURT, LEGAL COMMITTEE TOLD

3 November 1995

Press Release
GA/L/2881

MEMBERSHIP OF SECURITY COUNCIL KEY FACTOR IN PLAN FOR WORLD CRIMINAL COURT, LEGAL COMMITTEE TOLD

19951103 Discussion Continues on Procedures for New Body, Crimes To Be Included, Relationship with Existing National Jurisdictions

The relationship between the proposed criminal court and the Security Council would turn on the question of permanent and non-permanent membership of the Council, said the representative of Sri Lanka this morning as the Sixth Committee (Legal) continued its consideration of the report of the Ad Hoc Committee on the Establishment of an International Criminal Court.

He said that the principle of equality before the law may be called into question if the court were not insulated from issues of international politics.

India's representative suggested deleting reference to the Security Council from the court's draft statute. "The court should not be engaged in any case if the same is already under consideration of the Council", he said. "An international criminal court should not be used...to by-pass or contradict the primary role and function of the Security Council in matters of peace and security."

The representative of Iran said that while the Charter of the United Nations had entrusted the Security Council with primary responsibility for the maintenance of international peace and security, that should not be allowed to hinder the functioning of the court.

The representative of Denmark said that, 50 years after Nuremberg, he found it difficult to exclude the crime of aggression from the court's draft statute. While aggression was primarily a crime of States, not of individuals, the court could define a crime of planning or ordering aggression.

Hungary said that he saw "much merit" in arguments for including aggression in the list of crimes; ample precedent had been set at the Nuremberg and Tokyo tribunals.

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The representative of Nepal said that besides States parties to the statute of the court, the victims of the crimes and their relatives may be considered eligible to trigger the jurisdiction of the court.

Pakistan said the statute of the international court should be based upon legal precepts derived from all major legal systems of the world, including Islamic law.

Also speaking this morning were the representatives of Latvia, Ukraine, Uruguay, Uganda, Kuwait, Argentina, Georgia and Myanmar.

When it meets again at 10 a.m. on Monday, 6 November, the Committee is expected to complete its discussion on an international criminal court, and to begin its consideration of the report of the Special Committee on the Charter and on the Strengthening of the Role of the Organization.

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 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 report states that the Committee has recommended that the General Assembly organize future work towards completion of a draft convention establishing the court, which would be adopted by a conference of plenipotentiaries. It has also recommended that the mandate of the Committee be changed to allow it to draft that text. For background information, see Press Release GA/L/2876 of 30 October.

Statements

JAMSHED A. HAMID (Pakistan) said violations of human rights, including indiscriminate massacres of hundreds of thousands of innocent people, had prompted the world community to adopt measures to ensure that the perpetrators of those crimes were brought to justice.

He considered the principle of complementarity -- between international and national jurisdiction -- to be important, and said the primacy of national jurisdiction was necessary to preserve national sovereignty and to avoid situations of conflict between the jurisdiction of the State and that of the proposed international criminal court. Examining the draft statute, it was necessary to ensure that a compromise was reached on the legal aspects represented by all major legal systems of the world, including Islamic laws.

Speaking about the concept of jurisdiction, he said that it should be limited to the crime of genocide, serious violations of the laws and customs applicable in armed conflicts and the crimes against humanity. He had difficulty with the inclusion of the crime of aggression, as its contents were equivocal and controversial. Problems arose because aggression was traditionally considered a crime by States, whereas Pakistan favoured the principle that the jurisdiction of the court should apply only to individuals.

H.L. DE SILVA (Sri Lanka) said it was necessary to proceed with caution; the creation of the court would to some extent involve a renunciation of sovereign rights of States. The conceptual framework of the court ensured the important aspect of complementarity, and did not seek to derogate from currently operative agreements on judicial cooperation and assistance, consistent with the exercise of existing national jurisdiction. Particular attention needed to be given to the treaty to which the statute would be appended.

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He said many questions still needed patient negotiation to achieve consensus, before a conference of plenipotentiaries could be convened. For example, the scope of the jurisdiction of the court needed careful consideration by all concerned governments.

Working on the statute of the court, it was necessary to proceed without waiting for the code of crimes against mankind to be elaborated, he went on. The treaty should also provide for subsequent review of the provisions of the statute and their amendment in the light of later developments. Both the statute and the code should deal with the crime of international terrorism in its manifold manifestations.

On the question of the article which accorded the Security Council a role in referring cases to the court, he said the whole controversy was connected to the question of the permanent and non-permanent members of the Council. The whole doctrine of equality before the law may be called in question when confronted with the issue of politics in international relations, in a sphere which ought to be insulated from extraneous influences.

LARIS GRAVA (Latvia) said establishing the court by means of a multilateral treaty would ensure respect for State sovereignty and imbue the court with the necessary legal authority. There should be a high number of ratifications and accessions to the treaty before it could come into force. The court was intended to complement national criminal justice systems only in cases where those were not available or were ineffective. The court should have the authority to determine such availability or effectiveness.

In order to attract the greatest number of signatory States, he continued, the jurisdiction of the court should cover only core crimes universally acknowledged to be an affront to civilized nations. The role of the Security Council should be limited to referring general matters or situations to the court, which would exclude its bringing cases against specific individuals.

MARKIYAN Z. KULYK (Ukraine) said the creation of ad hoc criminal tribunals for the former Yugoslavia and Rwanda had made clear the need for a permanent international criminal court.

The principle of complementarity was essential to the establishment of such a court, he added. There must be a strong presumption in favour of national jurisdictions, justified by the advantages of national judicial systems. States should remain responsible and accountable for prosecuting violations of their own laws. At the same time, resort should be made to the international court when national procedures were unavailable or ineffective.

The jurisdiction of the court should be limited to the most serious "core crimes" under international law. Those crimes should be precisely

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defined, preferably in the statute itself. A clear definition of the crimes, rather than their enumeration, would meet the requirements of international legality, ensure respect for the rights of accused persons, and promote broad acceptance by States.

Further discussion of the international court should be combined with the drafting of a consolidated text of a convention. Ukraine shared the view that a specific target date for the convening of a conference of plenipotentiaries should be established.

JORGEN MOLDE (Denmark) said there seemed to be broad agreement that only the most serious international crimes should be included in the jurisdiction of the proposed court. Everyone seemed to favour the inclusion of genocide and war crimes in the statute. Views diverged over the crime of aggression. Denmark was among those countries which, 50 years after Nuremberg, found it difficult to exclude that crime from the court's jurisdiction. If the court was not mandated with the crime of aggression it would lose a great deal of its raison d'être. Aggression was primarily a crime of States, not of individuals. But was it impossible to define a crime consisting of the planning or ordering of an act of aggression? Denmark thought not.

Denmark was glad to note that many governments favoured a review mechanism whereby new crimes could be added to the court's jurisdiction at a later date. Limiting the list of crimes would make it more acceptable to leave to the international court the decision of whether national jurisdictions were not available or were ineffective.

The next step should be the establishment of a preparatory committee to work out a consolidated draft convention to be submitted to the fifty-first General Assembly, and afterwards to a diplomatic conference.

ARPAD PRANDLER (Hungary) said his Government had welcomed the creation by the Security Council of ad hoc tribunals for the prosecution of serious international crimes in Europe and Africa. A standing international court should be established by a multilateral treaty, rather than by amendment of the Charter of the United Nations. The court should have a close relationship with the United Nations, probably by means of a special agreement.

The principle of complementarity had been widely debated, he said. Hungary agreed that the proposed international court should be complementary to national criminal justice systems. Saddling the international court with an unrealistically ambitious role would jeopardize the universal accession of States to the statute.

There was broad consensus behind the idea that the court's jurisdiction should be limited to the most serious international crimes such as genocide, war crimes and crimes against humanity. While consensus had not yet been

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reached concerning the crime of aggression, Hungary saw much merit in arguments for including aggression in the list of crimes. Ample precedent had been set at the Nuremberg and Tokyo tribunals. But it would be extremely difficult to properly balance the independence of the court in prosecuting and punishing aggression, and the primary responsibility attributed by the Charter of the United Nations to the Security Council on matters relating to the maintenance of international peace and security. Consequently, Hungary found itself in general agreement with those arguing against the inclusion of the crime of aggression.

MARIA DEL LUJAN FLORES (Uruguay) said the timeliness and urgency of the establishment of an international criminal court had been underscored by relevant General Assembly resolutions and by the establishment of Ad Hoc Tribunals on former Yugoslavia and Rwanda. Major issues to be addressed included the principle of complementarity, applicable law and the crimes to be included in the statute, as well as the financial implications in connection with the establishment of the court.

She said the final aim should be a permanent and independent court, enjoying universal acceptance and support. It would be aimed at complementing national jurisdictions, where those were unavailable or were ineffective. However, the principle of complementarity should not create a presumption in favour of national courts.

In light of the existing tendency to limit the number of crimes under the court's jurisdiction, she went on, the court should be granted inherent jurisdiction over them, including the crime of genocide. The court should be able to exercise its jurisdiction without requiring consent from the States involved. Accession of a State to the statute would mean automatic acceptance of its jurisdiction.

BHAGIRATH BASNET (Nepal) said the need for the establishment of an international criminal court was reinforced by current lack of statutory mechanism to prevent and punish major international crimes. The basic principles underpinning its future were those of complementarity, limited jurisdiction and State consent. The court created on a broad consensus on those principles would find universal acceptance and have an effective role to play. He favoured a limited jurisdiction of the court and said that the specifications and the precise definition of those crimes needed to be further elaborated.

Care must be taken to prevent the international criminal court from assuming a supervisory role over the national courts. States parties to the statute of the court should be allowed to lodge a complaint with it. Additionally, the victims of the crimes and their relatives may be considered eligible to "trigger" the jurisdiction of the court.

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R.C. RATH (India) said the discussions in the Ad Hoc Committee had promoted further understanding of the issues involved. More work needed to be done on complementarity and its application, on specific crimes to be included, on jurisdiction and access, on trigger mechanism, on the role of the Security Council, on applicable law financing of the court and on protection of the rights of the accused.

Procedural aspects requiring further discussions were equally important, he said. All must be reconciled in the context of the law and practice of differing national legal systems. In order for the statute to be widely acceptable, it should not be projected as an instrument to supplant or replace national jurisdiction or replace it as a supranatural authority.

Aggression was a politically sensitive subject, he noted, but for the purposes of the draft statute it was to be incorporated. However, it should be first precisely defined from the legal point of view.

He said the interjection of political action by the Security Council in matters governed by the international criminal court could cloud the objectivity and independence of the court. In the interest of developing a universally respected international criminal justice system, the article envisioning the role of the Security Council should be deleted. "The court should not be engaged in any case if the same is already under consideration of the Council, because an international criminal court should not be utilized as an institution to by-pass or contradict the primary role and function of the Security Council in matters of peace and security", he said.

On the question of jurisdiction, he said that it should be based on prior express consent of States made by way of a declaration. In respect of judicial cooperation and mutual assistance, he said extradition was the most common legal form of transfer of a fugitive. Extradition was in general regulated by national legislation and effected under bilateral treaties and arrangements. Since that could not be applied in the context of surrender under the international criminal court, more work was still needed in that area.

JULIET D. SEMAMBO KALEMA (Uganda) said the proposed court should be permanent and independent, thereby avoiding the need for ad hoc tribunals created under Chapter VII of the Charter. It should be established by a multilateral treaty.

On the principle of complementarity, she said the court should exercise its jurisdiction when national legal systems were unavailable or ineffective. The jurisdiction of the court should be limited to the most serious crimes under international law. Treaty crimes dealing with terrorism and drug trafficking should be left to national courts.

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Aggression was a serious international crime, but Uganda had reservations about its inclusion in the jurisdiction of the court. Aggression was primarily a crime committed by States; the proposed criminal court was being designed to prosecute individuals. Limiting the court's jurisdiction to the most serious international crimes would promote universal acceptance, she said. A review mechanism could allow the addition of new crimes to the statute.

MEHDI DANESH YAZDI (Iran) said the establishment of ad hoc tribunals for the former Yugoslavia and for Rwanda had indicated the need for a permanent mechanism to prosecute and suppress crimes such as genocide, aggression and serious violations of the laws and customs applicable in armed conflict. Contemporary international law was based upon the will of sovereign States to create legal rules to govern inter-State relations, he said. Those rules had binding validity only when sovereign States consented to that effect.

Only an effective criminal court could serve the purposes and expectations of the international community, he said. Every effort should be devoted to facilitating the widest participation of States. While the Charter of the United Nations had entrusted the Security Council with primary responsibility for the maintenance of international peace and security, that responsibility should not be construed in such a way as to hinder the functioning of the court. The court should be established independently from other international legal bodies.

He noted that the preamble of the court's draft statute provided that the court should be complementary to national systems in respect of cases in which national legal jurisdictions were unavailable or ineffective. Iran believed that the notions of availability and effectiveness lacked precision and should be more clearly defined.

MAMDOUH AL ANAZEE (Kuwait) said the time had come for the peoples of the free world to establish an international criminal court which could put an end to crimes against humanity. Codification and the determining of penalties were an important deterrent to those who might contemplate committing crimes against humanity in future.

Serious war crimes were committed against Kuwait by the leadership of the regime of Iraq. The people of Iraq had also been victims of the actions of that regime. Kuwait was ready to provide whatever information was necessary to convict members of that regime who were responsible for war crimes.

The jurisdiction of the court should not be limited to those States acceding to the treaty which establishes it. Kuwait joined with others to call for the convening of a conference of plenipotentiaries. The jurisdiction

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of the court should be limited to serious international crimes -- genocide, war crimes and crimes against humanity.

SILVIA A. FERNANDEZ DE GURMENDI (Argentina) said the Committee had not only discussed the major issues arising out of the draft statute of the court, but also made clear the main matters that needed to be clarified. The time had come to undertake negotiations leading to a convention to be adopted by a conference of plenipotentiaries and for the Committee to undertake the drafting of such a text. If possible, the conference of plenipotentiaries should be organized in 1997.

The success of the criminal court would depend on universal support. The court should have competence over only a few "hard-core crimes", including genocide, war crimes and crimes against humanity. The Security Council should be able to refer the most serious matters to the court. The court should be complementary to national jurisdictions, but not subordinate to them.

LEVAN R. GOGOBERIDZE (Georgia) said war crimes had become more frequent and flagrant. Those crimes became even more severe and brutal when it came to non-international armed conflicts. That had been witnessed in the former Yugoslavia, in Rwanda, in his own country and other places.

An international criminal court would embody the fundamental principles of international criminal law. It should be able to hold individuals personally responsible if they had planned, ordered or committed gross crimes under international law. He supported the proposal making it clear that the court was to be established under a multilateral treaty and not by a resolution of a United Nations organ.

The principle of complementarity was extremely important, he said. The court was expected to fill in the gaps in domestic law enforcement. He supported the limitation of the jurisdiction of the court to only extremely serious crimes. Georgia was not against the inclusion of aggression under the court's jurisdiction, but felt it necessary to clearly define that crime, and to draw a distinct line between the acts of States and those of individuals.

U THAUNG TUN (Myanmar) said consensus reached on some of the substantive issues augured well for the establishment of a permanent international court which would ensure that perpetrators of serious international crimes were brought to justice. The principle of complementarity must constitute an essential element on which the court was to be based.

The discussions in the Ad Hoc Committee also indicated a growing preference among States for limiting the jurisdiction of the court to a few of the most serious crimes under general international law, he said. He concurred with the preference to limit jurisdiction to genocide, serious violations of the laws applicable in armed conflicts and crimes against humanity. The crime of aggression should be excluded in view of the lack of consensus on its legal definition.

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