PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT CONCLUDES FIRST SESSION
Press Release
L/2787
PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT CONCLUDES FIRST SESSION
19960412 The Preparatory Committee on the Establishment of an International Criminal Court approved the draft summary of its proceedings this afternoon, as it concluded its first session.In its three-week session, which began on 25 March, the Preparatory Committee undertook a comprehensive analysis of the draft statute of the proposed court, which was elaborated in the International Law Commission prior to being discussed in the ad hoc committee on the establishment of an international criminal court and in the Sixth Committee (Legal) of the General Assembly.
The six-part draft summary of proceedings covers the discussions held by the Preparatory Committee on such areas as: the scope of jurisdiction and definition of crimes; aggression; serious violations of the laws and customs applicable in armed conflict; crimes against humanity; treaty-based crimes; substantive issues; complementarity; trigger mechanisms; cooperation between States and the court; apprehension and surrender; international cooperation and judicial assistance; and recognition of judgements and enforcement of sentences.
The draft summary also has annexes dealing with questions of general principles of criminal law, complementarity, trigger mechanisms, definitions of crimes, and cooperation between the court and national jurisdictions. Statements on the annexes were made this afternoon by the representatives of China, Singapore, France and Syria.
Preparatory Committee Chairman Adriaan Bos (Netherlands) said in a closing statement that the session had collected useful documents regarding each of the important issues before the Preparatory Committee. Everyone was now aware of the issues involved and it had become clear that certain parts of the draft statute, particularly the criminal law aspects, needed some further effort.
Felicity Wong (New Zealand) said she had learned that the Department of Public Information (DPI) would not be covering the August session of the Committee. The Committee Chairman should make a representation to the Department, possibly through the Office of Legal Affairs, to urge it to try, within existing resources, to provide continuing coverage of the Preparatory Committee during that session.
The Preparatory Committee will meet again from 12 to 30 August for its second session, at which it will conduct a second reading of the issues raised at the current session. Following that session, it will submit its report on the proposed international criminal court to the fifty-first General Assembly.
The international criminal court is envisaged as an independent permanent judicial organ, to be established by a multilateral treaty. It would not be a full-time body, but would operate when required, although the possibility that the court could remain permanently in session if its caseload so required has not been excluded. The court would be available to States parties to its statute and, in certain situations, to the Security Council. The court is intended to complement national criminal justice systems in prosecuting and suppressing crimes of international concern.
Establishment of the court would obviate the need for setting up ad hoc tribunals for particular crimes, such as those established for the former Yugoslavia and for Rwanda, thereby ensuring stability and consistency in international criminal jurisdiction.
The 60-article draft statute of the proposed court details: the establishment of the court; its relationship to the United Nations; composition and administration; jurisdiction and applicable law; investigation and commencement of prosecution; trial; appeal and review; international cooperation and judicial assistance; and enforcement.
The draft statute provides that the court may enter into a relationship with the United Nations, either by becoming a part of the organic structure of the Organization or a treaty. According to the draft statute, the Court can only operate effectively if brought into close relationship with the United Nations, both for administrative purposes and because part of its jurisdiction would be consequential upon decisions by the Security Council.
The draft contemplates two categories of crime: those under general international law, such as genocide, aggression, serious violations of the laws and customs applicable in armed conflict (war crimes) and crimes against humanity; and those crimes covered by treaty provisions.
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Crimes to Be Considered by Court
There was general agreement in the Preparatory Committee that the crimes to be prosecuted by the court should be limited to the most serious "core crimes" of international concern -- genocide, crimes against humanity and war crimes. Most delegations were of the view that the court should not be empowered to prosecute aggression, despite the draft statute's inclusion of that offence.
Many delegations emphasized that crimes to be adjudicated must be precisely defined, consistent with the universal legal principles of nullum crimen sine lege (no crime without law) and nullum poene sine lege (no penalty without law). They further emphasized that the Preparatory Committee had no mandate to undertake the progressive development of international law and should, therefore, concentrate on the applicability of existing laws.
Several delegations said that the crimes to be considered by the court were the crimes of decision-makers and policy planners. The court would be prosecuting widespread and systematic crime, not isolated incidents. Several also said that the statute of the court must make provision for the prosecution of complicity, conspiracy and attempt. The court would adjudicate clearly enumerated criminal violations of customary international law and should avoid becoming enmeshed in quasi-political disputes.
The prosecution of genocide by the court was a relatively simple matter, most speakers said. A widely accepted definition for that crime could be found in the 1948 Genocide Convention, the provisions of which had become part of customary international law. It was also pointed out that genocide was included in the list of crimes within the purview of the tribunals for the former Yugoslavia and for Rwanda. Some delegates called for extending the definition of genocide to include systematic crimes against social and political groups. Most preferred addressing those offences as crimes against humanity.
As to war crimes, there was general support for the international criminal court's prosecution of grave breaches of the 1949 Geneva Conventions. Many delegates said that the Conventions' Protocol I, which deals with international conflicts, had become part of customary international law. Some delegations also called for the court's embrace of Common Article 3 of the 1949 Geneva Conventions and the Conventions' Protocol II, which would extend protection to victims of internal conflicts.
Several also said that the list of offences should include sufficiently serious violations of the 1907 Hague Convention IV, respecting the Laws and Customs of War on land, and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.
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Some speakers, citing United Nations Charter proscriptions against interference in the internal affairs of Member States, said that the international criminal court should have no jurisdiction whatever over internal armed conflicts. Others noted that the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia had found that it had jurisdiction over crimes under Common Article 3; and that Article 4 of the International Tribunal for Rwanda allowed for the prosecution of persons charged with committing serious violations of Common Article 3 and of Additional Protocol II.
Some delegations said that the absence of a treaty-based definition of crimes against humanity would complicate the inclusion of that crime in the court statute. Some noted that guidance could be found in references contained in the Nuremberg Charter, Council Control Law Number 10, the Tokyo Tribunal Charter, and the statutes of the international tribunals for the former Yugoslavia and for Rwanda. Speakers noted that under customary international law, crimes against humanity embraced widespread and systematic crimes against civilian populations on national, political, ethnic, racial or religious grounds.
Others called for the prosecution of enslavement, forced labour, unlawful deportation, imprisonment in violation of due process and international norms, torture (as defined in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), rape, sexual abuse and forced prostitution, particularly when associated with ethnic cleansing and persecution on political, racial or religious grounds.
Several delegations said that crimes against humanity need not be associated with military activity. It was noted that the Special Rapporteur of the International Law Commission, in discussion of the draft code of crimes against the peace and security of mankind, had noted the autonomous character of war crimes and crimes against humanity. Others called for the establishment of a firm "nexus" between crimes against humanity and armed conflict.
Speakers said that the international court should concentrate on prosecuting crimes against humanity committed by individuals representing both de lege and de facto authorities -- generally, not solely, State officials. They urged that the court's purview be limited to systematic and widespread actions, thereby screening out inappropriate complaints. One delegation urged that the Preparatory Committee wait for the International Law Commission to define the crime in the context of its discussion of the draft Code of Crimes against the Peace and Security of Mankind. However, another noted that the Commission had been discussing the draft code for 48 years.
Delegations were divided over the inclusion of aggression among the core crimes, as well as over whether the Security Council should determine the
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existence of an act of aggression prior to its prosecution by the court. Several speakers noted that aggression had never been legally codified in an international treaty and that the United Nations Charter had left the matter to be determined by the Security Council on a case-by-case basis.
Several delegations cited the definition elaborated by the General Assembly in its resolution 3314 of 1974. Others noted that Assembly decisions did not constitute elements of customary international law and, in any case, the Assembly definition lacked precision, as it had also provided that nothing should prejudice the right to self-determination and independence, and to self-defence.
One delegation noted that at the time of the founding of the United Nations, aggression had been a relatively simple concept. National liberation and humanitarian intervention had not been factors, as they had been in many modern uses of force. The crime of aggression turned on highly political questions, which was why the Security Council must have a central role.
Several speakers said that to preclude the prosecution of aggression 50 years after the Nuremberg and Tokyo Tribunals would represent a step backward for international jurisprudence. Others cited Articles of the United Nations Charter which invested the Security Council with primary responsibility for the maintenance of international peace and security and for determination of the existence of aggression.
While the International Law Commission's draft statute contains provision for the court's prosecution of treaty-based crimes (such as those proscribing the seizure of aircraft, apartheid, crimes against internationally protected persons, hostage-taking and torture), most delegations urged that the court focus on the "core crimes". They said that the inclusion of treaty crimes could extend the process of deliberation endlessly, while the international community was eagerly awaiting the establishment of the court. National authorities were best-equipped to carry out those prosecutions. Consideration by an international jurisdiction would be impractical.
Some speakers urged that the court prosecute drug-trafficking and terrorism. Others noted that terrorism had never been internationally defined. Several delegations favoured the establishment of a review conference to discuss the inclusion of aggression, terrorism and other possible crimes after the establishment of the court. A number of delegations urged that the draft statute be amended to allow prosecution of the United Nations Convention on the Safety of United Nations and Associated Personnel.
General Rules of Court
In its discussion of general rules of criminal law to be applied by the court, delegations cautioned against the risk of compounding the statute with
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extensive and detailed rules. The statute would not be an exhaustive criminal code. It should be a flexible and concise statement of applicable law and rules, they said.
Several delegates urged that the court not apply the national law of any particular State. Many said that the proposed court should only refer to national laws as a last resort in cases where there was a legal gap and in which the statute of the court did not cover a particular matter. One called for a hierarchy of law as follows: the statute itself, applicable treaties, and rules of customary international law. Others called for complete elimination of references to the applicability of national laws.
Many speakers noted that prosecutions might involve offences committed in one national jurisdiction by a person from a second or third jurisdiction. In such cases, the court could apply one of three sets of laws: those of the country in which the crime was committed; those of the country of nationality of the accused; or those of the country in which the accused was arrested. General preference was expressed for the laws of the country in which the crime was committed.
The principle of non-retroactivity must be clearly fixed in the statute, so as to be consistent with the principle of nullum crimen sine lege, speakers said. Criminal responsibility could only exist for an act if such an act was a crime at the time it occurred.
Speakers were almost unanimous in acceptance of the need for the inclusion of individual responsibility in the statute. Several cited provisions found in Article 7 of the International Criminal Tribunal for the Former Yugoslavia and Article 6 of the Rwanda Tribunal in that regard. Delegations said that the court statute should clarify whether the assigning of individual responsibility in any way vacated the responsibility of a State.
As to court procedure, several speakers said that applicable principles of law, such as liability, complicity and defence, should be set out in an annex to the statute. It was emphasized that the court should protect the right to silence, the right to non-self-incrimination, to bail, to trial by jury and the right not to be prosecuted under ex post facto charges (charges for an act criminalized after the arrest of the defendant).
Several delegations expressed the view that given the exceptional gravity of the "core crimes" to be adjudicated by the proposed court, no statute of limitations should be allowed. However. one representative called for statutes of limitation to be maintained as an essential element of fairness. The graver the crime, he said, the more important the role of due process. Another delegate suggested a compromise by which the court would
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declare no fixed statute of limitations, but would allow appeals based on the passage of time.
Most delegations believed that the proposed court should not seek to prosecute corporations. Others said that including the criminal liability of corporations that benefited from serious crimes in the statute could be important in the area of restitution. Speakers generally agreed that individuals should not be granted immunity from prosecution by the court because they occupied official positions.
Omissions, negligence and conspiracy that resulted in crimes that fell within the jurisdiction of the proposed international criminal court should be punishable under its statute, several speakers said. Many stressed that the statute should endeavour to reconcile common law concepts, such as intention, gross negligence and conspiracy with their analogous civil law concepts -- culpa, dolus eventualis, and complot.
Many speakers stated that the inclusion of provisions on causation would be unnecessary, since criminal responsibility only existed if it was traceable to a defendant. Speakers expressed the view that to "attempt" was not enough to commence an event. A substantial step must be taken towards criminal action. Many speakers urged that the concept of "intent" be elaborated in the court statute. Knowledge was a cornerstone of criminal liability, they said. The statute should also provide for prosecution of "wilful blindness", some said. Under common law, refusing to acknowledge a crime being committed was the same thing as knowing.
There was almost unanimous agreement that an age of responsibility should be specified in the statute. Speakers, however, differed on what that age limit should be. Generally, delegations favoured either sixteen or eighteen years of age. In the Committee's discussion of other types of responsibility, representatives said that "relationship crimes", such as complicity, aiding, abetting, soliciting and being an accessory, could be combined into one article. The overriding rules should be that all participants had the intent and purpose of committing a crime.
Regarding the types of defences that might be mounted before the proposed international criminal court, some delegations said that the procedures listed in the statute should be considered indicative, not exhaustive. Others cautioned that an inexhaustive list would grant the court legislative powers.
Self-defence and defence of others should be included as permissible defences in the statute, some speakers said. Most, however, stressed that defensive actions must be proportional. One delegation said that self-defence should not be allowed as a defence for a crime against humanity. Others said that provisions for self-defence would be complicated in situations in which
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the Security Council had determined that aggression had occurred. That determination would be binding on the court, regardless of the rationale behind the act.
Complementarity
In discussions of the question of complementarity, some speakers said the court should only exercise jurisdiction over criminal cases where national jurisdiction was either non-existent or ineffective. The principle of complementarity, which is set out in the preamble of the proposed court's draft statute, provides that neither the national nor the international criminal jurisdiction was meant to be subservient to the other. The provision states that the court "is intended to be complementary to national criminal justice systems in cases which those systems cannot resolve".
Several speakers called for the principle to be mentioned in the operative articles of the statute itself. Others stressed that the international court should not be allowed to impinge upon the prerogatives of national jurisdictions and should be prohibited from taking precedence over national jurisdictions. A number of speakers also said that "complementarity" was not an established legal principle and cautioned that it should not be used by States to shield their nationals from the proposed court's jurisdiction. The representatives said the court should have its own discretionary power in determining its jurisdiction. Citing the "relative vagueness" of the definition of complementarity, they said that the statute should define the minimum standard of content required for the court to have jurisdiction.
On the issue of the court's jurisdiction, many speakers proposed that it should enjoy inherent jurisdiction over the "core crimes" of genocide, crimes against humanity and war crimes. Several of them said that a permanent international criminal court without inherent jurisdiction would lose much of its potential value and that States should not be allowed room to manoeuvre by "opting in" or "opting out" of its jurisdiction.
A number of speakers, on the other hand, proposed a jurisdiction based on consent, with the court adopting the "opting in" approach, since it could not carry out prosecutions effectively without the cooperation of both the territorial State, that State in which the crime was committed, and the custodial State (the State which had custody of the suspect). Still, others suggested: that the court should only have inherent jurisdiction over genocide; that the court should have inherent jurisdiction when a matter was referred to it by the Security Council; and that the court's inherent jurisdiction should be extended to cover all the crimes, including treaty crimes, that fell within its jurisdiction.
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'Trigger Mechanisms' and Security Council
Discussion of the role of the Security Council in triggering prosecution drew a variety of views from speakers. Some, 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, however, endorsed the draft statute provisions for such referral.
Several speakers called for eliminating draft provisions in paragraphs 2 and 3 of Article 23. Paragraph 2 would prohibit the bringing of a complaint related to aggression 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.
A number of speakers pointed out that authorizing the Security Council to refer a matter to the court would obviate the need for the creation of additional ad hoc tribunals. Others, however, said that 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.
The proposal that any matter going to the court be run through the "filter" of the Security Council would adversely affect the integrity of the court and would violate the sovereign equality of States, said several speakers. They added that the Council should only be able to refer matters, not individuals, to the court. Several speakers cautioned that the political functions of the Council and the juridical functions of the court should be kept separate. Still other speakers urged that the General Assembly also be empowered to refer matters to the court.
Speakers generally agreed that States parties to the statute who were directly interested in a matter should be able to lodge complaints before the court. Several speakers, however, said 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.
Speakers were almost unanimous in opposing the granting of powers to the prosecutor of the court to initiate an investigation on his own, based on information received, without the consent of the States concerned. They said that such investigation should only be with the consent and cooperation of the States. Several speakers, however, argued that granting such powers to the prosecutor would enhance the effectiveness of the court.
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Judicial Cooperation and Enforcement
In the discussion on cooperation between the court and national judicial authorities, speakers said that States parties to the statute should give it priority over national courts in prosecuting persons accused of "core crimes", when those jurisdictions make competing extradition requests. Jurisdictions holding an accused person should defer to the court when those individuals were charged with genocide, war crimes or crimes against humanity. They urged that in developing mechanisms for the transfer of accused persons, the court adhere to well-established procedures for extradition, and respect the constitutional limitations of States parties to the statute. Once the court had jurisdiction, States should be under an absolute obligation to grant it the greatest measure of cooperation and should be under an absolute obligation to comply with its requests.
Several speakers, on the other hand, urged that the international court generally defer to national courts, consistent with the principle of complementarity. They said that the international court should only take action where the national courts failed to act. On that issue, a number of the speakers stressed the need for the statute to set out clear rules for cooperation with national jurisdictions. The statute should include a detailed listing of the types of judicial assistance that States parties would be expected to render to the court. Such a listing would enable States parties to know their obligations under the statute and also guide those that might need to enact domestic legislation. Others, however, said that minimum standards should be established in an exemplary, but not exhaustive, manner, in the statute. Search, seizure, surrender, and interviews of witnesses should take place with the consent of the States concerned.
In discussions on enforcement, speakers said that States should be obliged to recognize decisions and judgements of the international court. They should recognize the judgements of the court as they would judgements rendered by their national judiciaries. The statute should also provide a rule of "burden-sharing", which would oblige States to carry out the verdict of the court.
Upcoming Session of Preparatory Committee
When the Preparatory Committee convenes again from 12 to 30 August, it will undertake a second reading of issues discussed at the present session. It is also expected to concentrate on procedural questions, such as: fair trial and the rights of accused persons; the relationship between the court and the United Nations; and the administration and composition of the court.
The Preparatory Committee will have before it a working paper, which summarizes proposals from various delegations, citations from the ad hoc tribunals for the former Yugoslavia and for Rwanda, and excerpts from the
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"Siracusa draft" concerning possible elements to be included in the draft statute. Those text suggestions deal with: the non-retroactivity of nullum crimen sine lege; individual responsibility; irrelevance of official position; age of responsibility; statutes of limitation; act and omission; mens rea; mistake of fact or law; attempt; conspiracy; command responsibility; insanity and mental capacity; intoxication; ability to stand trail; self-defence; necessity; duress and coercion; lesser of evils; superior orders; possible defences under public international law; and lists of defences.
Preparatory Committee Background
The Preparatory Committee was set up by General Assembly resolution 50/46 of 11 December 1995 and is charged with preparing a widely acceptable consolidated text of a convention for such a court as a step towards consideration by a conference of plenipotentiaries. It is open to all Member States of the United Nations, members of specialized agencies and members of the International Atomic Energy Agency. It will submit its report to the General Assembly at its next regular session in September.
The Preparatory Committee process dates from 25 November 1992 when the Assembly, by its resolution 47/33, requested the International Law Commission to undertake the elaboration of a draft statute for the court. On 9 December 1994, by its resolution 49/53, the Assembly decided to establish an open-ended ad hoc committee to review the major substantive and administrative issues arising out of the draft statute. After meeting for four weeks in two sessions in 1995 (from 3 to 13 April and from 14 to 25 August), the ad hoc committee recommended to the fiftieth session of the Assembly that it organize future work towards an early completion of a draft convention.
By the terms of the resolution setting up the Preparatory Committee, its work would be based on the draft statute prepared by the Commission, but should take into account the report of the ad hoc committee on the establishment of the court. It should also take into account the written comments submitted by States to the Secretary-General on the draft statute, as well as contributions of relevant organizations.
Committee Officers
The Chairman of the Preparatory Committee on the Establishment of an International Criminal Court is Adriaan Bos (Netherlands). Vice-Chairmen are Cherif Bassiouni (Egypt), Silvia A. Fernandez de Gurmendi (Argentina) and Marek Madej (Poland). Jun Yoshida (Japan) is Committee Rapporteur.
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