PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT DISCUSSES INHERENT JURISDICTION OF COURT OVER 'CORE CRIMES'

Press Release
L/2774

PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT DISCUSSES INHERENT JURISDICTION OF COURT OVER 'CORE CRIMES'

An international criminal court should have inherent jurisdiction over the "core crimes" of genocide, crimes against humanity and war crimes, the Preparatory Committee on the establishment of the court was told this afternoon, as it began its discussion of "trigger mechanisms" that could initiate court proceedings this afternoon.

Discussion centred on the questions of State consent to the court's jurisdiction, which crimes fell under the court's competence, acceptance of courts jurisdiction through a system of "opting-in" and "opting-out", and the question of which States must accept the court's jurisdiction for the purpose of bringing a complaint.

Committee Chairman Adriaan Bos (Netherlands) said that the Preparatory Committee needed to decide which "actors" could initiate a court proceeding by "pulling the trigger" -- States parties, the Security Council or the prosecutor of the court.

The representatives of Switzerland, Czech Republic, Denmark, Greece, France, Belgium, Japan, Finland, Hungary, Italy and the Netherlands expressed support for the inherent jurisdiction of the court over all core crimes. Switzerland said that a permanent international criminal court without inherent jurisdiction would lose much of its potential value. The Czech Republic urged that States not be allowed room to manoeuvre by "opting-in" or "opting out".

The representative of France said that the international jurisdiction should not be reduced to a "supermarket court" in which States could pick and choose which cases the court should prosecute. Denmark said that the court should have inherent jurisdiction over all the core crimes -- including aggression. States signing the court's statute were consenting to be bound by its jurisdiction, he said.

The representative of Austria said that inherent jurisdiction should be applied to all core crimes. States party to the statute would be legally obliged to prosecute or refer to the international court all those crimes. He agreed with Switzerland, the Czech Republic and others that the number of States whose agreement were required for prosecution to commence should be kept to a minimum. Consent of the territorial State was certainly required, and that of the custodial State would also be practical.

The representative of Belgium said that inherent jurisdiction over genocide was desirable and realistic only under an "opting-in" and "opting- out" system for the other crimes. Jurisdiction should be real and efficacious. Ireland's representative said that States should acknowledge the court's inherent jurisdiction over genocide whether they were signatories to the Genocide Convention or not. Italy said that article 6 of the Genocide Convention had clearly established that the international criminal court should enjoy inherent jurisdiction over that crime.

The representative of Greece said that there was no reason for differentiation between crimes over which the court would have inherent jurisdiction and those over which it would not. Greece did not see why, after a State became signatory to the statute, it still needed to accept jurisdiction of the court for prosecution to occur. The court should have jurisdiction over all core crimes contained in the statute. Giving it inherent jurisdiction only in cases of genocide would seem to mean that other crimes were of less importance.

The representative of Japan agreed that the court's inherent jurisdiction should be limited to the core crimes. Distinction, however, needed to be made between inherent jurisdiction of the court and the issue of the exercise of jurisdiction.

Generally arguing against inherent jurisdiction as core crimes were the representatives of China, Algeria and Malaysia.

China's representative said inherent jurisdiction should be replaced by jurisdiction based on consent. He said that the international criminal court should adopt the "opting-in" approach. The court could not carry out prosecution effectively without the cooperation of both the territorial State, that State in which the crime was committed, and the custodial State, the State which ha custody of the suspect.

Algeria said, without a system of opting-in and opting-out, his Government could not accept the court's exercise of jurisdiction. As regards the role of the Security Council, he said that any judicial tribunal should be independent. Action by the Council might affect the legal impartiality of the proposed court. He proposed deletion of the draft statute's Article 23 paragraph (b) (which would forbid the court taking action in relation to any

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situation which the Security Council has determined to be a threat to or a breach of the peace in accordance with Chapter VII of the Charter, unless the Council so determines).

The representative of India said that he was not convinced that inherent jurisdiction should exist for the crime of genocide or for any other international crime. The Preparatory Committee had not been mandated with the progressive development of international law through the "back door". Inherent jurisdiction was not in line with the concept of complementarity, nor with the principle of sovereignty, he added.

While acknowledging the court's right to inherent jurisdiction over genocide, the representative of Venezuela said States should manifest two-fold consent to jurisdiction -- once at the time of adhering to the Convention establishing the court, and once upon the initiation of prosecution. The acceptance by States of the court's jurisdiction was fundamental.

Thailand's representative said that it would be difficult to achieve consensus for the expansion of the court's inherent jurisdiction to all of the core crimes, since not all of those crimes had been defined. The concept of State consent on the part of both the custodial and the territorial States should be retained, he said.

The representative of Malaysia said he had reservations on the whole issue of inherent jurisdiction. Where a State was able to prosecute a crime, that State's national judicial system should be given precedence over the court. Inherent jurisdiction for the court was against the principle of consensus. Also, the proposal of inherent jurisdiction was neither envisaged nor provided for by the Genocide Convention. It was not the job of the Preparatory Committee to revise that Convention. Rejection of the concept of inherent jurisdiction for the court should not render it redundant.

The representative of Jamaica said he was not in support of confining the court's jurisdiction to the core crimes and omitting the treaty crimes. To omit those treaty crimes listed in the draft statute would ignore the interest of a very large body of States. Also, his country supported the opting-in and opting-out approach contained in the draft statute, as it represented the only acceptable approach in relation to the issue. The statute should be established on a consensual basis so as to be observed in all its provisions.

Jamaica was not in favour of the provision for the court to have inherent jurisdiction over genocide, he continued. That provision effectively dispensed with the acceptance mechanism included in the draft. The present state of international criminal law did not warrant such an approach. Acceptance requirements should apply to all the crimes described. The statute

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should include a provision that custody of a person appearing before the court should not be acquired in breach of international law.

The representative of the United States supported the current approach of opting-in or opting-out as contained in the draft statute. That approach would maximize universal participation in the court.

The representative of Finland said that a straightforward system of triggering action by the court was necessary. The current draft statute seemed complicated. The opting-in and opting-out approach contained in the draft statute would derogate from the idea that the court should take over jurisdiction where national jurisdictions failed.

The representative of the Russian Federation said that the court should have inherent jurisdiction over a wide range of crimes when cases were referred to it by the Security Council. When States became party to the statute, they could choose the crimes over which they would acknowledge jurisdiction.

Regarding the issue of State consent, the representatives of Mexico, Hungary, Switzerland and Belgium said that the list of States whose consent was required for the court to prosecute -- the custodial State, the territorial State or others -- should be strictly limited so as not to paralyse the court. Italy suggested that efforts focus on the territorial State.

The representative of the United States said that a strong Security Council role was very much to be preferred on the issue of who must agree in order for prosecution to proceed. She was concerned at inclusion of the State of custody among those whose consent was required for prosecution to proceed. The actual location of the defendant was of little importance. The role of the State of custody should only be the obligation to cooperate with the court.

When it meets again at 10 a.m. tomorrow, 3 April, the Preparatory Committee will continue its discussion of inherent jurisdiction and "trigger mechanisms" for the court.

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