STATUTE OF INTERNATIONAL COURT MUST NOT BE RETROACTIVE, SAY SPEAKERS IN PREPARATORY COMMITTEE

29 March 1996

Press Release
L/2769

STATUTE OF INTERNATIONAL COURT MUST NOT BE RETROACTIVE, SAY SPEAKERS IN PREPARATORY COMMITTEE

19960329 Committee Also Discusses Issues of Individual Responsibility, Criminal Responsibility of Corporations, Official Immunity, Statue of Limitations

The principle of non-retroactivity must be clearly fixed in the statute of the proposed international criminal court, the Preparatory Committee on the establishment of the court was told this morning, as it continued its consideration of general principles of criminal law.

The representative of the Netherlands said that criminal responsibility could only exist for an act if such an act was a crime at the time it occurred. It was, therefore, necessary that the statute contain a clear definition of that principle.

The representative of France said that the definition of the principle of non-retroactivity must be made explicit in the statute. In the draft statute the reference was not explicit enough. The representative of Germany said that the principle of non-retroactivity was closely linked to the universal concept of nullum crimen sine lege (no crime without law).

The representatives of Sweden, United Kingdom and Canada also spoke in support of the inclusion of the principle of non-retroactivity, but added that the statute should make it clear that it would apply from the entry into force of the statute.

The representative of Switzerland said that there should be non- retroactivity for acts committed prior to the entry into force of the statute. The representative of the Russian Federation said that there should be non- retroactivity of the statute itself, as well as non-retroactivity of criminal law in time.

The representative of the United States said that it was important to ensure clarity in the statute's provisions on non-retroactivity. The representatives of Israel and Guatemala urged that both crimes, and their punishment, be established in the statute prior to any attempt to prosecute

them. South Africa and Portugal called for more precise wording in the International Law Commission draft statute in that regard.

The representative of Japan said that if the penalties with which offenses are to be punished have not been established at the time of the crime's commission, then the issue of legality would not have been fulfilled. Australia endorsed that view.

The representative of Guatemala noted that both the former Yugoslavia and Rwanda Tribunals had allowed the prosecution of crimes committed prior to their establishment. While that seemed to be retroactive prosecution, the crimes prosecuted by those Tribunals had been established beforehand under customary international law.

Also this morning, the Preparatory Committee discussed: the question of individual responsibility; criminal responsibility by corporations; the question of official position as a source of immunity from legal process under the court's jurisdiction; and whether there should be a statute of limitation on crimes falling under the court's jurisdiction.

Individual Responsibility

Speakers were almost unanimous in acceptance of the need for the inclusion of individual responsibility in the statute. The representatives of Finland, Austria and Greece suggested that provisions found in Article 7 of the International Criminal Tribunal for the Former Yugoslavia and Article 6 of the Rwanda Tribunal could guide drafting of the statute. The representative of Israel said that the occupation of an official position should not be allowed to shield defendants from responsibility for their crimes.

The representative of Austria said that it needed to be determined whether the assigning of individual responsibility in any way vacated the responsibility of a State. Greece also expressed concern whether individual responsibility would have the effect of "absorbing" State responsibility.

The representative of the United States said that there was need for a fuller explanation of the principle of individual responsibility in the statute in order to give guidance to the court and to the world. The representative of India said that the elements that went into determining individual responsibility should be defined in the statute. It should not be left to the court to determine those elements.

The representatives of Australia, France, Sweden, Canada, Russian Federation, and Switzerland also supported the inclusion of provisions for individual responsibility in the statute.

International Criminal Court - 3 - Press Release L/2769 9th Meeting (AM) 29 March 1996

Statute of Limitations

Several delegations expressed the view that given the exceptional gravity of the "core crimes" to be adjudicated by the proposed court, no statute of limitations should be allowed. Expressing that view were the representatives of Israel, Malaysia, and Ukraine.

The representative of France said that there should be no statute of limitation for genocide and crimes against humanity but that such a statute should exist for the lesser crimes. Japan's representative said that statutes of limitation were an important principle of criminal law, guaranteeing fair trials based on evidence. The graver the crime, the more important the role of due process. For that reason, the statute of limitations should be maintained as a rule to be applied to the court.

Canada suggested a compromise by which the court would declare no fixed statute of limitations, but would allow accused persons to appeal to the court if they believed that the passage of time would prejudice their right to a fair trial. The court could make a determination on a case-by-case basis.

Corporate Liability

Most delegations, including South Africa and Israel, believed that the proposed court should not seek to prosecute corporations. The representative of Canada said that it was not likely that corporations would be accused in the type of crimes envisaged to be handled by the court. Even if that happened, the individuals operating such a corporation would be liable in their individual capacities. German law did not provide for criminal liability for corporations, that country's representative said. The representative of Portugal, however, said that the court should be free to pursue corporations.

The representative of the United States said that there was a need to consider whether including criminal liability of corporations could be important in the area of restitution. There might be some appropriate way to use such liability to cover entities that might have benefited from the crimes falling under the court's jurisdiction.

Current Tribunals

The representative of Croatia urged that the court statute specify what would happen to cases presently before existing tribunals, such as those headquartered in The Hague.

International Criminal Court - 4 - Press Release L/2769 9th Meeting (AM) 29 March 1996

Immunity Due to Official Position

Speakers generally agreed that individuals should not be granted immunity from prosecution by the court because of official positions. The representative of India said that the fact that the accused held a particular position should not exonerate him from criminal responsibility for the crimes committed.

The representative of Canada said that it would be self-defeating to recognize any type of immunity on the basis of official position.

The representatives of Egypt, Italy, Argentina, Malaysia, Ukraine, Viet Nam, Thailand and Ireland also made statements this morning.

The Preparatory Committee will meet again at 3 p.m. today to continue its consideration the general principles of criminal law.

* *** *