CONFLICT BETWEEN SECURITY COUNCIL POWERS, INTERNATIONAL COURT, DISCUSSED IN PREPARATORY COMMITTEE
Press Release
L/2777
CONFLICT BETWEEN SECURITY COUNCIL POWERS, INTERNATIONAL COURT, DISCUSSED IN PREPARATORY COMMITTEE
19960404 Some Speakers Suggest Court's Draft Statute Extends Security Council Veto to Proposed International CourtArticles of the draft statute of the proposed international criminal court would grant the Security Council greater power than those conferred upon it by the United Nations Charter, the Preparatory Committee on the establishment of the court was told this morning.
Discussion this morning centred on three paragraphs of article 23 of the draft statute. 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 a complaint of aggression from 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 determined.
The representative of Malaysia calling for deletion of paragraphs 2 and 3 said that the political nature of the Council would hinder the effectiveness of the court. Libya's representative, who called for deletion of the entire article, said that the Security Council had been used as a "sword in the hand" of hegemonic great Powers. The Council applied its functions selectively. The great Powers should not be allowed to extend their vetoes to the international criminal court.
Argentina said that the Security Council must be able to put issues -- not individual cases -- before the international criminal court. One of the chief objectives of the court must be to replace ad hoc tribunals. It had been proposed that any matter going to the court should be run through the "filter" of the Security Council, but such a presumption was inadmissible and had no legal underpinning whatever. Such a proposal would adversely affect the integrity of the court and would violate the sovereign equality of States. How could a government be party to a treaty that would apply to all States parties, except for the permanent members of the Security Council?
The representative of Iran, calling for deletion of paragraphs 2 and 3, said that some had implied that decisions of the Security Council were legal, or semi-legal, in character. He was not convinced. The Council was not a court. It possessed broad discretionary powers that the criminal court should not possess. The Security Council never had to justify its decisions. The court would have to justify its decisions in accordance with law.
The representative of Cameroon said that if the criminal court was created by the General Assembly as an independent judicial body, there was no reason why the Security Council should play the "exorbitant role" that certain permanent members seemed to want it to play. A criminal court without jurisdiction over aggression would have no credibility whatever. Paragraph 3 subordinated the international court to the Council.
Guatemala's representative said that it was logical to presume that if the Security Council were seized of a matter, the court might have to rescue itself. The representative of Yemen, calling for deletion of paragraph 3, said that the Security Council should ascertain whether or not an act of aggression took place or not before referring such a case to the court.
The representative of Japan, calling for deletion of paragraph 2, said that the United Nations Charter was not going to be amended by the statute of the international criminal court. The Council's primary responsibility for international peace and security would not be changed by the creation of the criminal court. He favoured the Council being able to refer cases to the international court.
The representative of China said that paragraph 1 of article 23 should be retained without modification. He was not in favour of the proposal by the United States for inclusion of Chapter VI of the United Nations within matters that the Security Council could refer to the court. Chapter VI matters did not fall within the purview of the court. It concerned disputes between States only.
The representative of Sweden agreed on need for the Security Council to be able to refer matters to the court, if needed. That would obviate the need for ad hoc tribunals. However, paragraph 1 of article 23 would endanger the independence of the court and was unacceptable. That paragraph should be revised. Also, with regard to paragraph 2, if aggression was to be included as a core crime, the Council should have a role in referral of matters. Paragraph 3 was disturbing, in that it had the potential to lead to a delay in the action of the court while the Security Council was being seized of the matter. That paragraph should be deleted.
The representative of India said that there was no legally established habit that only Security Council has the role of establishing tribunals with regard to the matters to be handled by the court. He could not imagine a situation where there would be a criminal court established and the Council
International Criminal Court - 3 - Press Release L/2777 17th Meeting (AM) 4 April 1996
would still go ahead and set up an ad hoc tribunal. There was more value to keeping the court independent than for involving the Security Council. The role of the Council could not, in any way, be prejudiced by the establishment of an international criminal court with judicial independence.
The representative of Chile supported the current paragraph 1 of article 23, since it would avoid creation of ad hoc tribunals by the Security Council. However, he was concerned about the application of the principle of complementarity under that paragraph. Regarding paragraph 2, he said that it would put the court in a difficult situation, given the absence of clear definition of aggression. The court would also face limitations, since it would be investigating an offence into which an investigation would have been launched earlier by the Security Council. Paragraph 3, as currently worded, implied an improper subordination of the court to the Security Council.
The representative of Norway said that the only truly world tribunals in existence had been created by the Security Council. Since one of the main aims of the court was to make the creation of new ad hoc tribunals unnecessary, the credibility of the court's statute depended on appropriate reference to the competence of the Council. It was not correct to say that the Council was a purely political body. The Council should have the power to refer a matter to the court, but it would then be the responsibility of the prosecutor to begin investigations.
On paragraph 3 of article 23, he said that there was a need to avoid any semblance of interference in the work of the court. The Preparatory Committee should, therefore, consider some other wording that might refer to some consultation mechanism. He would not support the proposal to broaden the scope of the paragraph to allow the Security Council to filter all complaints to the court.
The representative of the Republic of Korea said that his country supported the idea of giving the Security Council the power to trigger prosecution, but that power should be confined to the serious core crimes. The Council should only bring a matter to the court and not a case against individuals. Also, States parties should be allowed to file complaints in cases of aggression. Paragraph 2 of article 23 needed to be revised, since it was inappropriate to prevent the court from commencing prosecution. The judicial function of the court would not conflict with the Security Council's role. Paragraph 3 should be deleted.
In a discussion of "trigger mechanisms" for the court -- methods by which the court would initiate prosecutions -- and the role of the court prosecutor in initiating jurisdiction, the representative of Malaysia said that such only States parties to the statute with a direct interest in a case should be able to initiate action. The court prosecutor should be allowed to commence procedures only upon such a complaint. The representative Japan said that only States with a direct interest in an issue should be able to bring it
International Criminal Court - 4 - Press Release L/2777 17th Meeting (AM) 4 April 1996
to the attention to the court. Otherwise, the court could be swamped with frivolous cases. Neither non-signatories to the statute nor the prosecutor should be allowed to undertake cases on their own.
The representative of China favoured that the right of lodging a complaint be restricted to States. A complaining State should be a contracting party of the statute, have accepted the jurisdiction of the court and be directly interested in the matter. Argentina's representative said that the Preparatory Committee should develop a kind of "grand jury" system for determining the admissibility of cases to the criminal court. The representative of Yemen said that all States party should be empowered to bring cases to he court.
Those States whose cooperation was necessary for the successful conduct of the proceedings must be the ones with the power to initiate a case, the representative of India said. Those were territorial States and, to a lesser extent, custodial States. Other States that had an interest should, however, not be excluded. Consent of the interested States should be a requirement for prosecution to occur.
The representative of Chile proposed that, in addition to States and the Security Council, under certain specific and restricted conditions individuals, such as victims of the crimes in question and their close relatives, should be able to lodge complaints before the court.
Concerning the power of the prosecutor, the representative of China said he was not in favour of expanding the power of the prosecutor. Before launching an investigation, the prosecutor should carry out consultations with the president of the court to determine countries directly interested in the case, including the custodial and territorial States, to determine if they had accepted the court's jurisdiction. He should get the consent of the two States and also notify other States of the matter.
The representatives of Israel, Singapore and Iran said that they did not favour the prosecutor being authorized to initiate a process without a complaint from a State. The representative of India said that the prosecutor should enjoy independence of investigation. The Republic of Korea's representative supported the expansion of the prosecutors role in general, since that role was important in the prosecution of international crime.
When it meets again at 3 p.m. today, the Preparatory Committee will continue its discussion of action by the Security Council, trigger mechanisms and the role of the court prosecutor.
* *** *