PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT DISCUSSES POWER TO BE GIVEN PROSECUTOR
Press Release
L/2778
PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT DISCUSSES POWER TO BE GIVEN PROSECUTOR
19960404 The prosecutor of the proposed international criminal court should be given the power to initiate an investigation based on information received, the Preparatory Committee on the establishment of the court was told this afternoon.Several speakers said that granting such powers to the prosecutor would enhance the effectiveness of the court. The representatives of Lesotho and Trinidad and Tobago were among speakers generally in support of more powers for the prosecutor.
The representative of Viet Nam, however, said that the prosecutor should not be able to initiate prosecutions on his own behalf. If serious core crimes occurred, the international community would react. The representative of Mexico also said that prosecutor should not be able to initiate an investigation without a complaint being lodged. It was necessary only that a State be able to file a complaint.
The representative of Slovenia also said that it was hardly possible for any prosecutor to play the role normally played by police in pre-criminal trial investigation in order to start a prosecution. The prosecution should not fill the possible gap in the trigger mechanism. A complaint by a victim with adequate documentation should complete the trigger mechanism.
Also this afternoon, discussion continued on three paragraphs of Article 23 of the draft statute concerning the role of the Security Council. 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 determines.
The representative of Australia accepted the principle of the Security Council, operating under Chapter VII, placing matters before the court. But comments by the United States and by France regarding paragraph 3 had caused her delegation concern, particularly the notion that the Council could forbid court prosecution of any action that was "being dealt with" by the Council, and the idea that all State complaints to court action should be submitted through the Security Council.
Such a proposal was completely unacceptable, she said. Paragraph 3 should be re-drafted or deleted. She was also concerned with the breadth of the term "threat to or breach of the peace" in paragraph 3. A court perceived to be subservient to the Security Council would be doomed in its mission to dispense justice.
The representative of Canada said that his country could not concede to the Security Council being given more powers than it already had. It should not be turned into a "filter" for complaints going to the court and court proceedings should not be subjected to the political judgements of the Council. Security Council action did not always have a clear legal basis. He believed that paragraph 3 should be deleted. He also had reservations on paragraph 2. If aggression was included in the court's jurisdiction, Canada would not want the court bound by the Council's determination. He also wondered if paragraph 1 was necessary.
The representative of Trinidad and Tobago said that the Security Council should only be permitted to refer to the court matters that fell under Chapter VII of the Charter. Paragraph 1 of the draft statute should be retained in that regard. In cases of aggression, the court should be allowed to take action if the Council did not do so in a reasonable time. Paragraphs 2 and 3 should be deleted. Otherwise, the court would be held hostage to the Council.
The representative of Egypt said the crime of aggression should be referred to the international court by the Security Council. That referral should contain general information about a situation -- not accusations regarding the culpability of an individual. It was important that the court be able to rely on the Council's enforcement and sanctions measures to carry out its decisions.
The representative of Gabon said that the formula in Article 23 would bring politics into the functioning of the court. The competence of the court should be automatic. That formula attempted to reduce the competence of the court even before the affect of the court had been determined. The representative of Mexico said he did not accept the way the article was now drafted.
The representative of New Zealand said that any action of the Security Council was subject to the use of veto by the five permanent members of the
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Council. Currently, there was a list of 135 items of which the Council was seized and which the court, by the draft statute, could not take up. He, therefore, favoured the deletion of paragraph 3. In the alternative, there should be a provision that prosecution by the court should be allowed except where the Security Council decided otherwise. That would avoid a threatened veto.
Lesotho's representative supported the Security Council's role in referring matters to the court, as that would obviate need for ad hoc tribunals. It was, however, not in favour of giving exclusive powers to the Council to prevent the court from taking up a matter. The court must be freed from such control. The representative of Turkey agreed that the Security Council could refer a matter to the court. However, he had doubts on the inclusion of aggression within the jurisdiction of the court, since its inclusion would pose problems by affecting its independence. Paragraph 3 should, therefore, be deleted.
The representative of South Africa expressed concern over the proposal that complaints to the court should be made through the Security Council. The court should not be subjected to the Council's subjective political actions. If aggression was included within the court's jurisdiction, then the Council should make a determination that aggression had occurred. Pakistan's representative said that the issue of the court's relationship with the Security Council remained unsettled. In matters of international peace and security, the Council should have a predominant role, but it should not be allowed to overshadow the independent judicial role of the court.
The representative of Uruguay said that the international criminal court should enjoy full juridical independence and should be free of all political influence. The Security Council was a political body. The Council and the court should operate on parallel paths.
On the issue of what might trigger action of the Court, the representative of Canada said that only States parties should be able to trigger an investigation by the court. The proposal to allow other States to trigger prosecution was not acceptable to his country as it could be used against neighbouring States. The representative of Argentina said that perhaps a chamber of the court could be used as a "filter" to review cases referred to it for adjudication. Viet Nam also said that some sort of council should perhaps be empowered to assist in "filtering" applications for action by the court.
On other issues, the representative of Jamaica said that he would prefer to call issues being referred to the court as "matters" as opposed to "situations", as the latter term was employed in Chapter VI of the Charter. That might give rise to confusion. Turkey's representative said that a State should be able to become a party to the statute without necessarily accepting
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the court's jurisdiction. Guatemala said that when the Security Council considered a situation, the court should wait for that examination to be completed before taking action.
When the Preparatory Committee meets again at 10 a.m. Monday, 8 April, it is expected to take up: cooperation between the international court and national jurisdictions; general issues related to State cooperation; and the issue of apprehension and surrender.
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