SECURITY COUNCIL POWER TO INVOKE INTERNATIONAL CRIMINAL COURT COULD UNDERMINE ITS INDEPENDENCE, SIXTH COMMITTEE TOLD

28 October 1996

Press Release
GA/L/3009

SECURITY COUNCIL POWER TO INVOKE INTERNATIONAL CRIMINAL COURT COULD UNDERMINE ITS INDEPENDENCE, SIXTH COMMITTEE TOLD

19961028 Legal Committee Begins Considering Report Of Preparatory Committee on Establishment of Court

Granting the Security Council power to invoke action by the proposed international criminal court could undermine its judicial independence, several speakers said today, as the Sixth Committee (Legal) began its consideration of the report of the Preparatory Committee on the Establishment of an International Criminal Court.

Reviewing the Preparatory Committee's work on a draft statute for the proposed court, representatives in the Sixth Committee considered draft provisions on trigger mechanisms for activating the court's prosecutorial role, including the Security Council, complaints by Member States and the court's inherent jurisdiction over certain crimes.

The representative of Venezuela said it would not be appropriate to confer new functions on the Security Council beyond what was provided for in the Charter, while Italy said the court's inherent jurisdiction should extend beyond genocide to include other serious international crimes. The representative of Austria stressed the need for States to cooperate with the court, without exceptions.

The representative of Portugal said the prosecutor must be independent and able to initiate investigations on an ex officio basis, while South Africa stressed the importance of setting 1998 as the date for the convening of the diplomatic conference required to approve the draft statute and establish the court.

Addressing the Committee as Chairman of the Preparatory Committee, Adriaan Bos (Netherlands), said the holding of that conference of plenipotentiaries by 1998 now seemed feasible. He said 1998 also marked the fiftieth anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide, which had envisaged the establishment of the court.

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Statements were also made by the representatives of Ireland (for the European Union and associated States), Malaysia, Singapore, Japan, France, Trinidad and Tobago (also for the Caribbean Community), Brazil, Norway, Lesotho, Ghana, Republic of Korea and Kuwait. The observer for the International Committee of the Red Cross (ICRC) also spoke.

The Sixth Committee will meet again at 10 a.m., tomorrow, 29 October, to continue its consideration of the Preparatory Committee's report.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to begin consideration of the report of the Preparatory Committee on the Establishment of an International Criminal Court on its activities during 1996 (document A/51/22). Established last year by the General Assembly, the Committee was to review issues arising from the International Law Commission's draft statute for an international criminal court, with the aim of producing a draft convention for such a court. That text would then be considered by a conference of plenipotentiaries, with a view to its adoption.

In its report, the Preparatory Committee recommends that the Assembly reaffirm its mandate and direct it to meet three or four times, up to a total of nine weeks, with the aim of completing its work by April 1998. Its open- ended working groups would be asked to deal with the following issues: definition and elements of crimes; principles of criminal law and penalties; organization of the court; procedures; complementarity and trigger mechanism; cooperation with States; establishment of the court and its relationship with the United Nations; final clauses and financial matters; and other matters.

During its deliberations, the Committee focused on a wide range of substantive issues, including the relationship between the court and the United Nations, and its composition and administration, the report states. The Committee considered questions concerning the scope of the court's jurisdiction and the definition of crimes, triggering mechanisms for activating the role of the prosecutor, and complementarity between the court and national authorities, including national courts.

The Committee also considered general principles of criminal law as they would apply to the court, as well as procedural questions, the rights of the accused and the elements of a fair trial, the report states. It also reviewed issues relating to appeal and review, penalties, cooperation between States and the court and questions relating to international cooperation and judicial assistance.

According to the report, there was general support in the Preparatory Committee for the court to be an independent judicial institution established by a multilateral treaty. While some delegations felt the court should sit on a continuous basis, others said it should do so only when a complaint was filed. A close relationship between the court and the United Nations was considered essential to its universality and standing. Possible sources of financing for the court might include the United Nations regular budget or contributions by States based on the United Nations scale of assessments or another to be determined.

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The report says there was broad support for an 18-judge court, although other numbers were also suggested. While there was widespread support for nine-year, non-renewable terms, in order to promote the impartiality and independence of the judges, the idea of a shorter, renewable term was also advanced. Since the court was to be universal in character, it was considered important that its judges be elected on the basis of equitable geographical representation. It was also emphasized that the Court's composition ensure a gender balance, although the view was also expressed that there should be no quotas of any kind.

There was general agreement on the importance of limiting the court's jurisdiction to the most serious crimes of concern to the international community as a whole, so as to avoid trivializing its role and functions and interfering with the jurisdiction of national courts, the report states. Such crimes include genocide, violations of the laws and customs applicable in armed conflict, and crimes against humanity. The latter might also include murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial or religious grounds, and other inhumane offences.

Some delegations held the view that such crimes as international terrorism, illicit drug trafficking and attacks against United Nations and associated personnel should be included in the list of offences to be prosecuted by the court under the category of treaty-based crimes. There was general agreement that the crimes within the jurisdiction of the court should be defined with the clarity, precision and specificity required for criminal law.

The report indicates that there was division over whether the court should enjoy "inherent jurisdiction" with respect to certain offences. The view was expressed that such jurisdiction was a contradiction in terms, since the court's jurisdiction would arise out of the instruments by which it was created. While some held that the court's inherent jurisdiction should not be limited to genocide but extend to all the core crimes, others had reservations about the court having inherent jurisdiction over any crime.

According to the report, the Committee's consideration of trigger mechanisms touched on a number of issues. Those included the question of acceptance of the court's jurisdiction, State consent requirements and the conditions for the exercise of jurisdiction. With respect to who could trigger the system, the discussion focused on the possible roles of the Security Council, the right of States to lodge complaints and the role of the prosecutor.

On the issue of complementarity, it was generally agreed that a proper balance between the court and national authorities, including national courts,

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was crucial if the statute was to be acceptable to a large number of States, the report goes on to say. Different views were expressed on how, where and to what extent complementarity should be reflected in the statute.

A second volume of the Preparatory Committee's report compiles written proposals for amendments to the draft statute of the court that have already been submitted by delegations or prepared by that body's Chairman.

Statements

ADRIAAN BOS (Netherlands), Chairman of the Preparatory Committee on the Establishment of an International Criminal Court, said that as the end of the twentieth century drew near, debate had shifted from whether it was desirable and possible to establish an international criminal jurisdiction to seeking the broadest support of States for such a court. The Preparatory Committee had anticipated in many respects the outcome of the work of the International Law Commission on a draft code of crimes against the peace and security of mankind. Those results represented an endorsement of the Committee's work, particularly with respect to the code's scope of application, which was limited to a very select group of serious crimes.

The future work of the Preparatory Committee would be well served by finalization of the code, particularly its provisions on the definition of crimes and the principle of individual criminal responsibility, he said. Completion of work on the code could be seen as proof of the international community's readiness to move towards enforcement on the basis of such individual liability.

One risk in preparatory work was the tendency to go into too much detail in regulating the procedures of the court, he said. That tendency was seen in the large size of Part II of the Preparatory Committee's report. Unlike in 1918 and in 1948, clear norms now existed, including the International Law Commission's draft statute and the code. The holding of a conference of plenipotentiaries by 1998 now seemed feasible. That year was also the fiftieth anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide, which had envisaged the establishment of an international criminal court.

FRANCIS MAHON HAYES (Ireland), spoke on behalf of the European Union, with the support of Cyprus, Czech Republic, Hungary, Latvia, Lithuania, Malta, Romania, Slovak Republic, Slovenia and Iceland. He said the process of establishing an international criminal court had rightly been placed at the centre of the international agenda. The gravity of the situations in the former Yugoslavia and Rwanda had inspired special efforts to overcome the complex problems involved in establishing the court.

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The court should be an independent institution with the widest participation of States, and should be closely linked to the United Nations, he said. Its jurisdiction should be limited to the most serious crimes against the international community and its statute should contain provisions on the general rules of criminal law it would apply. The court should protect the rights of the accused, provide for the protection of witnesses and victims and provide for States to cooperate in the effective and speedy transfer of individuals.

LORENZO FERRARIN (Italy) said it would be a great honour for Italy to host the conference to adopt the statute to establish an international criminal court. He said that the universality of the court was an element of crucial importance. The court should be an independent and effective judicial institution, established to prevent and punish crimes and atrocities wherever and by whomever they were committed.

Establishment of a meaningful court depended on finding solutions to the issues concerning its jurisdiction and the trigger mechanisms for activating it. The principal of complementarity should not impose outrageous limits on the court's jurisdiction. The court's inherent jurisdiction should be expanded beyond the crime of genocide. In addition, the prosecutor should be allowed to initiate investigations. The relationship between the court and the Security Council should preserve the independence of the court.

GERHARD HAFNER (Austria) said his Government favoured the giving of certain autonomous and independent power to the prosecutor, so he might initiate proceedings. That power should not depend on any complaint by a State or on referral by the Security Council. However, in view of the reluctance of certain States to agree on such rights, he proposed the establishment of an indictment chamber, which would control the prosecutor's power and balance his independence.

He said States would be under a firm duty to cooperate with the court. Such duty should not tolerate any exceptions. While the existing systems of judicial cooperation should serve as the basis of that cooperation, they were inadequate with respect to the question of exceptions. The usual exceptions involved reference to the political nature of a crime. The problem was that almost all crimes could be viewed as being politically motivated.

For those reasons, "we are determined to work in favour of a restriction of the exception to the duty to cooperate to the utmost minimum in the interest of the efficiency of the international criminal court", he said. The broader the exception to the duty, the weaker the duty would become, and the less the interests of the international community would be safeguarded.

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PIETER FRANS KRUGER (South Africa) said 1998 should be set for the diplomatic conference to create an international criminal court; that date must be included in the relevant resolution. It would be appropriate to resolve that specific arrangements for the conference would be dealt with during the fifty-second session of the General Assembly in 1997.

Further preparatory work could be best done through open-ended working groups, he said. Those working groups should space and schedule their work more definitively, allowing delegations to better plan their participation.

The lack of participation in the preparatory process by certain geographical regions was a matter of concern, he said. Delegations that had not participated thus far were urged to add their weight to the process. The result would be a well-balanced and truly universal criminal court.

PAULA VENTURA DE CARVALHO ESCARAMEIA (Portugal) said the international criminal court needed to be able to determine whether a national judicial system gave sufficient guarantees to alleged criminals. The court's prosecutor needed to be independent and able to initiate investigations ex officio. That would provide a speedier and more independent trigger mechanism. It would also support stability of relations among States, because a State would not be confronted with a difficult decision which might involve jeopardizing long-lasting diplomatic relations with another State.

The international criminal court needed to be a completely independent body and not subject to conditions imposed by other international organs, he said. That must be particularly stressed with respect to the relationship between the court and the Security Council. It was hoped that a conference of plenipotentiaries would be convened immediately following the conclusion of the Preparatory Committee's work in April 1998.

HALIMAH ISMAIL (Malaysia) said the death penalty must be available as a penalty to be imposed at the discretion of the court. The death penalty was provided for in many national criminal justice systems. Exclusion of that option in the draft statute could give rise to serious difficulties.

She said her delegation had great difficulty with the provisions of the draft statute that would empower the Security Council to invoke the court's jurisdiction. Those provisions would undermine its independence. Similarly, the prosecutor should not be empowered to commence investigation on his own initiative. His right to carry out on-site investigations should be subject to the consent of the States concerned.

MATHEW JOSEPH (Singapore) said that in order to complete work on a draft convention, a spirit of compromise among all State was required. On a technical level, that meant bringing together many different legal traditions.

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It was unrealistic to expect the court to be modelled exclusively on any one system. At the political level, a middle ground must be found between State sovereignty and the court's jurisdiction. Such differences could not be bridged without a willingness to cooperate on the part of all States.

The establishment of a permanent international criminal court would not, in itself, prevent the commission of atrocities, he said. However, it would provide the international community with a vital legal framework for dealing with them. "Justice is not of itself a guarantee of peace, but there can be no peace without justice", he added.

HISASHI OWADA (Japan) said the jurisdiction of the international criminal court should be limited to the three core crimes of genocide, conventional war crimes and crimes against humanity. A review clause should be included in the statute allowing for revision of that jurisdiction whenever it was deemed appropriate. The entire system of international justice should be based on due process and respect for human rights.

The principle of complementarity was basic to the philosophy underlying the international criminal court and should be more clearly reflected in its statute, he said. Its clauses on such issues as admissibility and transfer of an accused to the court should more clearly reflect that principle. The right to lodge a complaint with the prosecutor should be limited to States or the Security Council. The Council should have the right to refer cases to the court, so in future there would be no need to establish ad hoc tribunals, such as those in the former Yugoslavia and Rwanda.

HUBERT LEGAL (France) said the international criminal court raised very difficult questions. The courts for Rwanda and the former Yugoslavia had been non-permanent in nature. The one currently envisioned must be permanent, and capable of intervening in any situation. The experience gathered in both tribunals must be utilized. "We must be more precise in describing the machinery and the guarantees necessary."

The Court must focus on a small number of crimes if it was to be credible and effective, he said. Furthermore, the principle of complementarity was crucial. The Prosecutor must work under judicial supervision. The text of the draft convention needed to be much more clear and precise.

VICTOR RODRIGUEZ CEDENO (Venezuela) said that a distinction must be made between the international criminal court as an international organization and as a court of law. An international organization allowed participation by all States, while a court had specific functions. To achieve effective jurisdiction, the principle of complementarity was essential. The obligation of States to cooperate with the court should be clearly established.

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With respect to the role of the Security Council, he said that it would be inappropriate to confer new functions on that body beyond what was provided for in the Charter. The court's subject-matter jurisdiction must be restricted to the most serious crimes. However, that rule must remain flexible, to allow for adaptation to a constantly changing world.

ANNETTE DES ILES (Trinidad and Tobago), also speaking on behalf of the Caribbean Community (CARICOM), said the question of the court's jurisdiction in relation to domestic trial mechanisms had yet to be addressed to the satisfaction of all States. However, it had been established that the court was not meant to replace national jurisdictions but to provide another avenue for prosecution. The court should be complementary to national judicial systems, and only come into operation where national procedures were not available or were ineffective. The principle of complementarity must be further elaborated.

The definition of crimes to be included under the court's jurisdiction must be precise, she said. The adoption of the draft code of crimes against the peace and security of mankind by the International Law Commission had been very helpful. Not all issues could be solved within the Preparatory Committee. Some, especially those of a political nature, would best be left to a conference of plenipotentiaries. It was a matter of serious concern that a number of States had been unable to participate in the first two sessions of the Preparatory Committee, she said.

ANTONIO DE AGUIAR PATRIOTA (Brazil) said the possible inclusion of the crime of aggression in the court's statue revealed the difficulty of establishing a proper relationship between the court and the Security Council and of guaranteeing the court's impartiality.

He also drew attention to the issue of complementarity. With the sole exception of genocide, over which the court might have inherent jurisdiction, the relationship between the court and national criminal justice systems would have to be delineated through carefully formulated criteria. The court must avoid being seen as an intrusive substitute for a national court. A close relationship between the court and the United Nations should be encouraged. In that fashion, its universality, moral authority and administrative and financial viability would be guaranteed.

LENE N. LIND (Norway) said that the international criminal court would make an important contribution to peace-building and the process of reconciliation in the aftermath of armed conflict. It could establish the rule of law in situations where justice would otherwise be sought in revenge.

She said that the jurisdiction of the court should focus on the most severe criminal offences, particularly genocide, crimes against humanity and

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serious war crimes. A broader range of crimes could be considered after the statute was in effect. The court should automatically have jurisdiction when there was no effective national apparatus for the prosecution of the severe criminal offences.

PERCY METSING MANGOAELA (Lesotho) said the international criminal court was an idea whose time was long overdue. Current conditions in the world favoured the creation of a permanent court. There was a continuing need to address the human rights situation in several regions and to provide a legal response.

He noted that many Member States did not participate in the work of the Preparatory Committee. It would be difficult to achieve the universality for the court unless all delegations, particularly those from developing countries, were involved in the process.

JACOB BOTWE WILMOT (Ghana) said the possible inclusion of aggression in the court's jurisdiction could draw it into a complex political wrangle which could adversely affect its independence. Individuals must be able to bring complaints before the court. "International crime does not only affect States but individuals as well, and a broader complaint procedure provides a more effective way to deal with it."

Although the primary and legitimate role of the Security Council was the maintenance of peace and security, it need not fulfil that role at the expense of the principle of judicial independence, he said. A compromise formula between the two must be worked out. For instance, the Council could address itself to the political implications and effects of violations, while leaving their prosecution and related issues to the court.

PARK SOO GIL (Republic of Korea) said the remaining nine weeks of the Preparatory Committee should not be squandered in endless debate over fundamental differences that stood in the way of further progress. The spirit of compromise must prevail at its next session. "It is the political will of the international community that counts in the establishment of the universal criminal court", he said.

NASER A.M. AL HAYEN (Kuwait) said that the international criminal court should be binding to all States in order to guarantee the peace and stability promised by the creation of the court. He noted that the court would punish all those criminals who think they are beyond the reach of justice.

He said that the international criminal court should protect human rights, which all countries seek to achieve.

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JEAN-PHILIPPE LAVOYER, observer for the International Committee of the Red Cross (ICRC), said an independent and impartial international criminal court would strengthen respect for humanitarian law. The ad hoc tribunals created to prosecute violations committed in the former Yugoslavia and Rwanda had paved the way for establishment of a permanent international criminal court.

Most of today's armed conflicts were internal in nature, he said. The court's jurisdiction should extend to them. Crimes against humanity were equally unacceptable, whether they occurred in an armed conflict or not. The international community must take action to repress those crimes.

Additional conditions imposed on the courts' inherent jurisdiction would make it difficult for it to function and ran counter to the very purpose of its establishment, he said. The court's universality would be implicitly weakened. With respect to complementarily, he said the court should not act as a substitute for national courts. Such a role would detract from the existing duty of States to repress crimes at the national level. The court's prosecutor should be empowered to initiate investigations and institute proceedings on his own initiative. Such powers would give the court greater impartiality and independence.

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