PREPARATORY COMMITTEE ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT TO MEET AT HEADQUARTERS, 25 MARCH - 12 APRIL
Press Release
L/2760
PREPARATORY COMMITTEE ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT TO MEET AT HEADQUARTERS, 25 MARCH - 12 APRIL
19960322 Background Release The major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission for the proposed international criminal court will be the principal focus of discussion as the Preparatory Committee on the establishment of the court begins its first session at Headquarters on Monday, 25 March.The Preparatory Committee was set up by General Assembly resolution 50/46 of 11 December 1995 and is charged with preparing a widely acceptable consolidated text of a convention for such a court as a step towards consideration by a conference of plenipotentiaries.
By the terms of the resolution setting up the Preparatory Committee, its work would be based on the draft statute prepared by the Commission but should take into account the report of the Ad Hoc Committee on the establishment of the court. It should also take into account the written comments submitted by States to the Secretary-General on the draft statute as well as contributions of relevant organizations.
The Preparatory Committee is open to all Member States of the United Nations, members of specialized agencies and members of the International Atomic Energy Agency. It is also scheduled to meet from 12 to 30 August and will submit its report to the General Assembly at the beginning of the Assembly's next regular session in September.
The process leading to the establishment of the Preparatory Committee dates back to 25 November 1992 when the General Assembly adopted resolution 47/33 under which it requested the Commission to undertake the elaboration of the draft statute.
On 9 December 1994, by its resolution 49/53, the Assembly decided to establish the Ad Hoc Committee, open to all Member States or members of specialized agencies, to review the major substantive and administrative issues arising out of the draft statute and, in the light of that review, to consider arrangements for the convening of an international conference of plenipotentiaries.
After meeting for four weeks in two sessions in 1995 (from 3 to 13 April and from 14 to 25 August), the Ad Hoc Committee reported that the participating States still had different views on the major substantive and administrative issues. It, therefore, decided that those issues could be addressed most effectively by combining further discussions with the drafting of a consolidated text of a convention for the court as a next step towards consideration by the conference of plenipotentiaries.
In its report to the fiftieth session of the General Assembly (document A/50/22), the Ad Hoc Committee recommended that the Assembly organize future work towards an early completion of such a draft convention.
According to the report, the establishment of a single, permanent court would obviate the need for setting up ad hoc tribunals for particular crimes, such as those established for the former Yugoslavia and for Rwanda, 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.
According to the report, the court was intended to complement national criminal justice systems and would enhance effective prosecution and the suppression of crimes of international concern. It also noted that the 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.
In discussions at the Ad Hoc Committee, many delegates had urged for a clearer definition of that principle of complementarity between the court and national criminal justice systems. They said that it should be clearly established who would determine the adequacy of national courts. Several speakers urged that the principle be spelled out in operative articles of the statute. Some stated that competent national courts should have priority over the international court; others urged that the primacy of national jurisdictions not be invoked to shield criminals.
On the court's jurisdiction, participants generally supported its competence over a "hard core" of crimes -- genocide, war crimes and crimes against humanity -- but several speakers expressed doubts over the inclusion of aggression on the list of crimes and pointed out that under the terms of
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the Charter, only the Security Council could determine the commission of an act of aggression.
Speakers also pointed out that a more focused list of crimes for the international court would increase the number of national legislatures likely to accede to the statute treaty.
There was also widespread agreement that the statute should precisely define, rather than simply enumerate crimes to be dealt with by the court. Precise definition was required by the legal principles nullum crimen sine lege and nulla poena sine lege (no crime without law; no penalty without law). Speakers suggested incorporating definitions from the Nuremberg Tribunal Charter and the statutes of the International Tribunals for the former Yugoslavia and for Rwanda, and finalizing the draft code of crimes against the peace and security of mankind.
There was division over whether or not, in the case of serious international crimes, the international criminal court should enjoy "inherent jurisdiction" which would allow it to proceed with the prosecution without being requested to do so by signatory States. Some felt that inherent jurisdiction was incompatible with the principles of complementarity and of national sovereignty as articulated in the Charter, but others argued that, given the magnitude of the core crimes, the court should not be unduly restricted in its freedom to prosecute.
Regarding the issue of the "trigger mechanisms" required to initiate prosecution by the court, several speakers urged a liberally defined role for the court's prosecutor. Limiting the court to prosecutions requested by States parties and the Security Council would reduce its role to that of an executor, some said.
In its original format, the 60-article draft statute prepared by the Commission, which was contained in the Commission's report on its forty-sixth session (document A/49/10), details the establishment of the Court; its relationship to the United Nations; composition and administration; jurisdiction and applicable law; investigation and commencement of prosecution; trial; appeal and review; international cooperation and judicial assistance; and enforcement.
It provides that the court may enter into a relationship with the United Nations, either by becoming a part of the organic structure of the Organization or could be set up by a treaty. According to it, the Court can only operate effectively if brought into close relationship with the United Nations, both for administrative purposes and because part of its jurisdiction would be consequential upon decisions by the Security Council.
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The draft creates two categories of crime -- those under general international law such as genocide, aggression, serious violations of the laws
and customs applicable in armed conflict and crimes against humanity; and those crimes covered by treaty provisions.
According to the draft statute, the Court's jurisdiction will apply when a State has custody of an accused person (either because such a State had jurisdiction over the crime or because it had received an extradition request relating to it), or when the crime was committed on its territory. A State could accept the jurisdiction of the Court either by a declaration of general application or it could be party to the Statute by a declaration lodged with the depository or, at a later time, with the registrar. A declaration might be made for a specific or unspecified period.
It also provides that the Court should have jurisdiction over crimes referred to it by the Security Council, acting under Chapter VII of the United Nations Charter. A complaint related to an act of aggression cannot be brought unless the Council determines that a State has committed such an act. The Council would decide if a prosecution, arising from a situation which it was dealing with under Chapter VII of the Charter, could begin.
Under the terms of the draft statute, the Council would not normally refer a "case" against individuals to the Court, but would refer a "matter" or situation to which Chapter VII of the Charter applied. It would be the prosecutor's responsibility to determine which individuals would be charged.
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