ROLE OF SECURITY COUNCIL IN TRIGGERING PROSECUTION DISCUSSED IN PREPARATORY COMMITTEE FOR INTERNATIONAL CRIMINAL COURT
Press Release
L/2776
ROLE OF SECURITY COUNCIL IN TRIGGERING PROSECUTION DISCUSSED IN PREPARATORY COMMITTEE FOR INTERNATIONAL CRIMINAL COURT
19960404 Opposing views were heard yesterday afternoon concerning the role of the Security Council in triggering prosecution by the proposed international criminal court, as the Preparatory Committee on the Establishment of the Court began discussing the role of the Security Council and the right to complaint.Discussion centred on three paragraphs of Article 23 of the draft statute of the proposed court. Paragraph 1 would allow the Security Council to refer matters to the court involving the "core crimes" contained in the statute. Paragraph 2 would prohibit the bringing of a complaint related to aggression being brought before the court unless the Security Council had first determined that an act of aggression had been committed. Paragraph 3 would bar the commencement of prosecution in relation to a situation which the Council had determined to be a threat to or breach of the peace in accordance with Chapter VII of the Charter, unless the Council so determines.
Some speakers, expressing concern that the Council and the court should be kept separate, said that the Council should not have the power to refer matters to the court. Others endorsed the draft statute provisions for such referral. Several speakers called for eliminating draft provisions in paragraphs 2 and 3 of Article 23.
Speaking in favour of the Council's role, the United Kingdom's representative expressed reservations concerning proposals to include aggression in the court's jurisdiction. As to paragraph 3 of Article 23, she said she did not believe that concerns over the court's impartiality merited prejudicing the search for international peace and security. The representative of the Russian Federation said that the court statute should not, in any way, limit the powers of the Security Council. Decisions of the Security Council, taken on behalf of the international community under Chapter VII, were legally binding.
The representative of France endorsed the inclusion of aggression on the list of core crimes to be prosecuted by the Council, but only on the basis of a Council determination that aggression had occurred. The court should not
prosecute situations being dealt with by the Security Council under Chapter VII of the Charter unless the Council so decided, he said. Any communication from States requesting action by the court should first be referred to the Security Council. In every case, the Security Council should be allowed to state its views prior to the initiation of any action by the court.
The representative of the United States said that, in theory, the court could be created and shielded from existing political realities, but in reality that was not possible. Nothing done by the Preparatory Committee would amend the United Nations Charter. The Security Council would continue to exercise authority in regard to international peace and security. Also, States parties would always remain political entities and any State lodging a complaint before the court would include political reasons, which might not necessarily be aimed at securing justice. The fears of certain delegations regarding the role of the Council under the powers conferred by the draft statute were misplaced.
He proposed that, in addition to referring matters under Chapter VII to the Court, the Council should also be able to refer a matter under Chapter VI of the Charter. Paragraph 2 of Article 23 should be amended by deleting the word "Chapter VII" so that it would encompass Chapter VI referrals. With regard to paragraph 3, it would be unfortunate if the court was empowered to act without regard to the Charter. That paragraph should be revised to include all matters being dealt with by the Council.
The representative of Venezuela said that it was appropriate for the Security Council to refer a matter to the court without a complaint. Hungary's representative was in favour of retaining paragraph 1 of Article 23. It was the primary responsibility of the Council to maintain international peace and security. He was not convinced that in its present form, paragraph 3 served the purpose proposed.
Speaking in opposition to the role of the Council the representative of Mexico saw no reason to involve the Security Council in the work of the international criminal court. The court should be permanent, universal, impartial and independent. The manipulation of that court by the Security Council would politicize its work and reduce its authority. The court should be based on the principle of universality. That could only be achieved by leaving the Security Council out of its structure. Article 23 should be deleted from the Statute.
The representative of Italy said that the Council should be allowed to refer matters to the court, but that paragraph 3 of Article 23 should be deleted. The court should never be forced to seek the Security Council's approval for it to initiate a prosecution. The representative of the Netherlands said that the Council should be able to refer cases to the international criminal court, based upon the example of the ad hoc tribunals.
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But paragraphs 2 and 3 of Article 23 would seriously impeded the independence and impartiality of the court. Germany and Austria also called for the deletion of paragraph 3.
The representative of Tunisia said that her Government could support the provision giving the Security Council the right to refer matters to the court. However, such a possibility should also be in the hand of the General Assembly, which the Charter gave the overall authority within the United Nations. Denmark's representative agreed that the functions of the Security Council and the court were two different matters -- the Council being basically of political character while the court was of judicial character. The Council acted while a crisis was taking place, while the court would be evaluating the events after the fact. Denmark recommended the deletion of paragraphs 2 and 3 of Article 23.
The representative of Slovenia said that the role of Security Council with regard to referring matters to the court needed to be viewed with great caution. The Council was a political body. He wondered if the relevant articles of the Charter could be interpreted to mean that it was the Council's exclusive responsibility to determine if aggression had occurred and how the Council had determined cases of aggression in the past. The representative of Greece said that if the court was only to act when the Council decided if aggression had occurred, the court would be paralysed in a situation where the Council failed to act. Greece proposed the deletion of paragraphs 2 and 3 of Article 23.
The representative of Egypt said that under the draft statute, the court would be unable to take up a matter relating to aggression if the Council did not find that aggression had occurred. The role of the court should be to determine the responsibility of individuals in case of aggression and to deter aggression. Egypt recommended the deletion of paragraph 2 of Article 23.
The representative of Thailand said that his country could accept the idea of authorizing the Security Council to refer a matter to the court, as that approach would obviate the need for the creation of additional ad hoc tribunals. However, since the Council was a political body, its decisions should not be a determining factor on whether the court should prosecute a particular matter or not. Paragraphs 2 and 3 of Article 23 of the draft statute should be deleted or amended to provide that the proceedings of the Council should not affect the court.
The representative of Jamaica said that the General Assembly should be empowered to refer matters to the court. The Council's ability to refer matters to the court should be in the same context as a State, so that it should only allege that a crime had been committed. The court should not be bound by a determination by the Council that aggression had occurred.
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Addressing the role of States in triggering prosecution the representatives of Italy, Netherlands, Finland, Austria and Hungary said that any State party to the statute should be entitled to lodge complaints with the court.
The representative of the Netherlands said that the only additional approval should be that of the territorial State (that State in which the crime was alleged to have taken place). The State of nationality of the accused should not be involved in the process. The representative of Slovenia said that all States should be able to pull a trigger to start prosecution, under the principle that accepting the statute meant accepting jurisdiction.
The representative of Thailand said that a State filing an accusation should be one that had a direct interest in the matter in order to avoid frivolous cases. A larger scope of trigger mechanism should, however, be included to cover any State party. He supported the view that complaint with respect of genocide should not be limited to State parties to the Genocide Convention, but could be a State party to the statute of the court.
The Russian Federation said that only Security Council resolutions or State complaints should be able to initiate the court's jurisdiction. France's representative said that complaints should be referred to the court both by States parties and by the Security Council operating under Chapter VII. The court prosecutor should not be able to initiate prosecutions on his own.
The United States also recommend that States parties be empowered to only recommend situations to the prosecutor who could then initiate a case against an individual. There should not be a separate complaint lodged against that individual. Such an approach would enhance the responsibility of the prosecutor.
In discussion of the power of the prosecutor, the representative of Switzerland said that under the present ad hoc tribunals for the former Yugoslavia and Rwanda, only the prosecutor had the right to "pull the trigger". Powers of that kind should be included in the statute of the future international criminal court. Germany also called for the prosecutor being empowered to undertake prosecutions on his own.
The representative of Jamaica was not in favour of giving the power to the prosecutor to initiate prosecution. The representative of Denmark said that the proposed powers granted to the prosecutor to initiate an investigation were too rigid. The prosecutor should be allowed to initiate an investigation on his own on the basis of any sort of information received from any source. However, prosecution should only be made if the investigation convinced the prosecutor that the case was substantial enough. That same
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approach had been adopted by the Security Council for the International Criminal Tribunal for Yugoslavia.
Hungary also found the role of the prosecutor too restrictive.
On other matters, Austria's representative favoured the Council being able to refer matters to the court under both Chapter VI or under Chapter VII. The Council, when acting under Chapter VIII, should not be able to refer matters to the court. Regional organizations wishing to refer matters to the court should channel their request through the Security Council. The representative of Tunisia supported the "opting-in" approach contained in the draft statute.
When it meets again at 10 a.m. Thursday, 4 April, the Preparatory Committee will continue its discussion of the role of the Security Council in the proposed international criminal jurisdiction.
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