LAWS OF PARTICULAR STATES SHOULD NOT BE APPLIED BY INTERNATIONAL COURT, SAY SPEAKERS IN PREPARATORY COMMITTEE

28 March 1996

Press Release
L/2767

LAWS OF PARTICULAR STATES SHOULD NOT BE APPLIED BY INTERNATIONAL COURT, SAY SPEAKERS IN PREPARATORY COMMITTEE

19960328 Some Cite Difficulty of Deciding Which National Law to Apply; Committee Concludes Discussion of Crimes to Be Included in Court's Statute

If national law is to be a source of law for the proposed international criminal court, then the court must not apply the national law of any particular State, the Preparatory Committee on the Establishment of an International Criminal Court was told this morning, as it began discussion of the general rules of the court.

Many speakers pointed out that it was difficult to decide which national law to apply, since prosecutions may involve offenses committed in one national jurisdiction by a person from a second or third jurisdiction. In such cases, the laws of the country in which the crime was committed could be applied, or those of the country of nationality of the accused or those of the country in which the accused was arrested.

The representative of Canada proposed that national law be applied only in the case of incidents not covered by the statute of the proposed court, or by international treaty. In that event, the national law to be applied should be arrived at by finding common, universal principles from among the major international legal systems.

The representative of Sweden, however, said that where the need arose for reference to national law, the basic preference should be for the law of the State where the offence was committed, if such a law could be held to an acceptable international standard. Israel suggested that a precedent for that might be found in Anglo-American tort law, in which civil suits were prosecuted in the jurisdiction in which the tort was committed.

Several delegates, including representatives of the United Kingdom, Colombia and the Netherlands, called for the complete elimination of any reference to national laws, so as to erase any possibility of confusion. The

Republic of Korea said the statute should concretely indicate the circumstances in which the court would apply national law.

The representative of Japan said that since the credibility of the court would be dependent upon its consistency, there should be no discrepancy in the applicable laws and the decisions handed down. Its rules of procedure must be clearly defined and should be contained in the statute itself. The role of defining those rules of procedure should not be left in the hands of the judges.

The representative of Canada also said that the definition of crimes under the court's jurisdiction should be elaborated in the statute. Such definition should state the essence of the crime, while leaving the meaning of particular words to be contained in an annex that would have equal legislative weight. There should be two annexes -- one containing a list of treaties and conventions over which the court would have jurisdiction, and the other specifying the elements of those crimes.

The representative of Germany said that the statute should contain general rules of procedure and of substantive law. Germany understood the need for flexibility, but had reservations about proposals that judges should be empowered to decide on rules of procedure and evidence.

Agreeing with that view, the representative of the United States said that the court statute should define crimes and identify general principles of law, such as of liability, complicity and defence. Those provisions should be articulated in the statute or in an annex. There would need to be room for the court to elaborate further, she said.

The representative of Ireland said that his Government would have difficulty agreeing to any statute which failed to provide for such fundamental rights as the right to silence, to non self-incrimination, to bail, to trial by jury and the right not to be prosecuted under ex post facto charges (charges for an act criminalized after the arrest of the defendant).

Also this morning, the Preparatory Committee completed its discussion of crimes to be included in the statute of the proposed criminal court. Delegations have generally agreed on the inclusion of "core crimes" under customary international law -- genocide, crimes against humanity, war crimes and aggression -- provided that precise definitions can be agreed upon.

Delegations have been divided on the question of whether the Security Council must determine the existence of an act of aggression prior to its prosecution by the court. Several speakers have cautioned that the political functions of the Council and the juridical functions of the court should be kept separate.

International Criminal Court - 3 - Press Release L/2767 7th Meeting (AM) 28 March 1996

While several speakers have urged that the court be empowered to prosecute treaty-based crimes, such as terrorism and drug-trafficking, most have urged that the court be limited to pursuing universally proscribed crimes under customary international law. Several have expressed the view that international prosecution of treaty-based crimes would be impractical and would over-burden the court.

The representative of Japan expressed concern that delegations were still urging treaty-based crimes on the proposed court despite comprehensive discussion of that proposal in the General Assembly's Sixth Committee (Legal) and in the Ad Hoc Committee on the Establishment of an International Criminal Court. The inclusion of treaty-based crimes would extend the process of deliberation endlessly, while the international community was eagerly awaiting the establishment of the court. Mexico, Canada and Italy also endorsed limiting jurisdiction to the core crimes.

The representatives of Pakistan and India urged that the international court accommodate treaty-based crimes. India termed concerns that discussion of treaty-based crimes would delay establishment of the court a "procedural red herring". Cameroon supported the inclusion of treaty-based crimes such as apartheid, racial discrimination and terrorism in the court's jurisdiction. Some States did not have the means to prosecute those crimes at the national level, she said. They should have the opportunity to take such cases to the international court.

Several delegations proposed that a review clause be included in the statute of the international criminal court, which would allow for the future extension of its jurisdiction to additional crimes. Many speakers said that including such a review clause would accelerate establishment of the court by deferring discussion of additional crimes.

The representatives of Finland proposed that a review conference could be convened five years after the entry into force of the statute of the proposed court. Norway, Australia, Hungary and Belarus endorsed the review conference. The representative of the United Kingdom expressed reservations about the proposals to include a review clause in the statute.

The representative of Thailand said that the proposed court's concentration on the most serious crimes would support the principle of "complementarity" between the international court and national courts.

Also speaking this afternoon were the representatives of Syria, Trinidad and Tobago, Czech Republic, Indonesia and Switzerland.

When it meets again at 3 p.m. today the Preparatory Committee will continue its discussion of general rules of criminal law.

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