INTERNATIONAL CRIMINAL COURT SHOULD NOT HAVE INHERENT JURISDICTION, PREPARATORY COMMITTEE TOLD

INTERNATIONAL CRIMINAL COURT SHOULD NOT HAVE INHERENT JURISDICTION, PREPARATORY COMMITTEE TOLD

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An international criminal court should not enjoy inherent jurisdiction over crimes detailed in its statute, the Preparatory Committee on the Establishment of an International Criminal Court was told this morning.

The representative of Israel said that the term inherent jurisdiction was a contradiction. The jurisdiction of the court would arise out of its statute -- a contractual instrument creating the court. Acceptance of the statute should not mean automatic acceptance of the court's jurisdiction. An "opting-in" arrangement allowed for the contractual nature of the court and would, thereby, facilitate its broader acceptance.

Also stressing the need for broad adherence to the court statute, the representative of Singapore favoured an approach whereby states parties to the court would accept its inherent jurisdiction over genocide, while having the choice to "opt-in" or "opt-out" of jurisdiction with regard to the other crimes.

The representative of Pakistan said that "trigger mechanisms" which could initiate the court's jurisdiction should be strictly limited. Rather than inherent jurisdiction, the court should have consensual jurisdiction. He had no objection to the court's prosecution of treaty-based crimes, provided that the States involved were parties to the conventions. Indonesia said he did not support the exercise of the concept of inherent jurisdiction, since it was in conflict with the principle of complementarity.

The representative of Japan said that his country would not support that jurisdiction be established after the court came into force. However, states parties should be asked whether they would consent to its jurisdiction in each particular case. The representatives of Argentina also spoke in support of inherent jurisdiction for the court over the core crimes.

The representative of Chile said that there were no grounds for having different procedural treatment for genocide and for other core crimes. Inherent jurisdiction did not mean exclusive jurisdiction for the court, but only removed certain pre-consent requirements. The representative of Australia said that his Government could accept the court enjoying inherent

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jurisdiction over genocide, with a review mechanism in place to provide for later inclusion of other core crimes. In the event that the court was not granted inherent jurisdiction over all core crimes, Australia would support the "opting-in" approach contained in the draft statute.

The representative of Canada said that inherent jurisdiction did not mean that the court had primacy to prosecute, but that where the concerned State did not prosecute, the court would not need any further consent before proceeding with prosecution. His Government did not favour any form of "opting-in" clause in the statute. Including such a clause was like giving with one hand and taking away with the other.

The representative of Norway said that the core crimes all fell under customary international law. They should not be subjected to an overly restrictive "trigger mechanism". The court's statute would apply to states parties. It would operate under the principle of complementarity and it would address a well-defined list of crimes. It was difficult to imagine how the goals of the Genocide Convention could be met without the court being given inherent jurisdiction over that crime.

The representative of Sweden said that his Government did not believe an "opt-in" system was necessary. Considerations of State sovereignty were important, but when States ratified the statute they were agreeing to be bound by the court's jurisdiction.

The observer of Switzerland said both the Nuremburg and Tokyo tribunals had had inherent jurisdiction and there had been no problems. The relationship between inherent jurisdiction and complementarity was very important. If jurisdiction was inherent, then the field in which the court worked should be clear. Requiring further consent would create more difficulties.

The representative of China also made a statement relating to inherent jurisdiction.

Regarding consent requirements -- the States whose consent would be required for the court to undertake a prosecution -- the representative of Israel said that, in addition to the requirement for the consent of the territorial and custodial States, prosecution by the court should also require the consent of the State of which the suspect was a national. To prevent abuse of that requirement, a provision could be included in the draft statute stating that prosecution by the court may not begin unless the national jurisdiction concerned failed to properly investigate and prosecute.

The representative of Singapore said that the paragraph requiring the consent of the territorial State should be amended to add the words "if applicable" at the end. That amendment would address a situation where thevInternational Criminal Court - 3 - Press Release L/2775 15th Meeting (AM) 3 April 1996 crime took place in a place outside the territory of any country, such as on the high seas. The representative of Australia said he did not support the extension of the consent requirement to any other States beyond the territorial and custodial States. Canada's representative said that States from which consent was required to trigger a proceeding should be reduced to the minimum.

The representative of Japan said the consent of the territorial State, custodial State where the accused was arrested and the State of nationality of an accused person should be obtained for prosecution to begin. Consent of the State of nationality of victim and that of the State targeted in the case might also be sought. Also, the trigger mechanism for the court to take up a matter should be seen from the stage of initiation of investigation. At the time of the initiation of investigation, all the triggering mechanisms should be considered, so that investigation was not begun if the court had no jurisdiction.

The representative of Guatemala said that it was possible that there might not be a State of detention with regard to some cases before the court. That would render the requirement of consent of the custodial State redundant. To cover such a situation, there should be an amendment of the provision regarding the State of detention to add the words "if there is such a State".

The representative of Indonesia had no objection to requiring the consent of the custodial State, the territorial State, the State of nationality and the most affected States for prosecution to begin. Also, in order to avoid frivolous cases, only States with a direct interest in a particular matter should be able to lodge a complaint at the court. When a complaint was lodged, the court's jurisdiction should only be invoked after a thorough investigation.

In discussing other matters, the representative of Ukraine called for the deletion of Article 23.3 of the draft statute. That article provides that "A complaint may not be brought or a prosecution commenced under this Statute in relation to a situation which the Security Council has determined to be a threat to or breach of the peace in accordance with Chapter VII of the Charter of the United Nations unless the Security Council so determines." He said that it was possible that decisions of the Security Council could be politicized. It would derogate from the acceptance of the court if its actions were based on decisions of a political body.

The representative of Indonesia said that since, in many instances, Security Council deliberations had been political, the court should not be affected by its considerations.

The Preparatory Committee will meet again at 3 p.m. today to continue its consideration of the question of inherent jurisdiction for the proposed international criminal court.