PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT CONTINUES CONSIDERING COMPLEMENTARITY BETWEEN NATIONAL, INTERNATIONAL JURISDICTIONS
Press Release
L/2773
PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT CONTINUES CONSIDERING COMPLEMENTARITY BETWEEN NATIONAL, INTERNATIONAL JURISDICTIONS
19960402 An international criminal jurisdiction should not be used to second- guess the procedures of national courts, the Preparatory Committee on the Establishment of an International Criminal Court was told this morning as it continued its discussion of complementarity between national and international legal jurisdictions.The representative of Cameroon termed prosecution under national law an essential act of sovereignty. The question was, who should determine when national justice systems were ineffective. Tunisia said that the ad-hoc Tribunals for the former Yugoslavia and for Rwanda seemed to be operating in competition with national courts. She feared that national courts in developing countries might be overridden under the pretext that they could not adequately undertake prosecutions.
India said that the international court should not be the "first court of call", nor an appellate court. Recently established ad-hoc tribunals had been created following the complete collapse of national governance. The international court should not be used to override or erode national jurisdictions.
The representatives of Canada and of Australia said that the international court should take action only when national courts were unwilling or unable to act, or had acted in bad faith. Canada said that the international court should prosecute international crimes only when it had demonstrable proof that State authorities were not taking action. Australia said that the international court should not defer to "sham proceedings" by States not prosecuting in good faith.
Turkey said that the statute of the proposed international court should clearly specify circumstances under which it could exercise jurisdiction. The representatives of Trinidad and Tobago, Denmark and Guatemala said that the court should have a right to determine its own jurisdiction.
China said that the international court would depend upon the support of national governments and their courts. The Preparatory Committee should resolve the matter of when the international court's prosecutor might undertake his functions.
France said that the international court should be able to prosecute crimes only when it was clear that national courts would free the accused from international responsibility or deliberately undertook a bad faith prosecution. The statute should clearly define which acts constituted such bad faith. The criteria governing the international court's jurisdiction should be restrictive and precisely set out.
The representative of the United States, on the other hand, urged that the international court be empowered to prosecute whenever national proceedings were undertaken in bad faith. Prior to undertaking prosecution, the international court should be obliged to go through a "checklist" of criteria to judge the efficacy of national courts.
The United States, United Kingdom, Australia and Jamaica stated that court statute should clearly oblige national courts to prosecute serious international crimes. Jamaica cautioned that such a formulation should not relegate the international court to a residual role.
The international criminal court should not be used as a "garbage can" into which national court systems could dump criminals that they should be punishing at the national level, the representative of Japan said. The proposed court should fill in the gaps of impunity -- it should not be used to substitute for procedures that national courts were legally obliged to undertake on their own.
The representative of the United Kingdom said that the draft statute was inadequate because it had not made clear the relationship between international and national courts.
Denmark said that national criminal jurisdiction should clearly be a primary jurisdiction, with the international court enjoying residual jurisdiction. Italy said that the concept of the unavailability or ineffectiveness of national jurisdictions should be clearly defined.
Slovenia and Finland expressed support for the draft statute articles which provided that persons should not be tried for any crime in the international court when they had already been properly and impartially tried at the national level. Finland said that persons might be so tried if the national procedures were undertaken in bad faith, or if the proceedings were not impartial and independent.
International Criminal Court - 3 - Press Release L/2773 13th Meeting (AM) 2 April 1996
Netherlands raised questions about situations in which persons were prosecuted at the international level for actions which were not criminal at the national level. A national court might wish to prosecute an act which would constitute murder at the national level, but genocide at the international level. Just because the person had been properly convicted of murder, he should not be allowed to escape prosecution for genocide.
When it meets again today at 3 p.m., the Preparatory Committee is expected to discuss "trigger mechanisms" -- the means by which the international criminal court may initiate prosecutions.
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