UNIVERSALITY OF INTERNATIONAL CRIMINAL COURT REQUIRES PARTICIPATION OF ALL STATES IN PREPARATORY PROCESS
Press Release
GA/L/3010
UNIVERSALITY OF INTERNATIONAL CRIMINAL COURT REQUIRES PARTICIPATION OF ALL STATES IN PREPARATORY PROCESS
19961029 General Assembly Should Help Developing Countries Send Experts to Preparatory Committee Meetings, Sixth Committee ToldThe universality of the proposed international criminal court could only be ensured through the participation of all States at all stages of the preparatory process, speakers said this morning, as the Sixth Committee (Legal) continued its consideration of the report of the Preparatory Committee on the Establishment of an International Criminal Court.
Expressing his Government's disappointment that not enough developing countries were represented in the Preparatory Committee, the representative of Canada said it was in the interest of all nations, particularly those most likely to be subjected to unrest and conflict, to support the court.
The continued absence of a large number of delegations represented a significant problem, which the Assembly should take steps to address, the representative of Kenya said. The representative of Malawi, too, said the Assembly must find ways to help developing countries send their experts to future sessions of the Preparatory Committee.
The impetus to establish an international criminal court came at a time when there had been a dramatic increase in crimes against humanity, the representative of Cameroon said. All States must unite in the creation of that court if those crimes were to be dealt with effectively, he added.
Statements were also made by the representatives of Belarus, Denmark, India, Romania, Burkina Faso, Finland, Ukraine, Indonesia, Chile, Sweden and Pakistan.
The Sixth Committee will meet again at 10 a.m. on Thursday, 31 October, to continue its consideration of the Preparatory Committee's report.
Committee Work Programme
The Sixth Committee (Legal) met this morning to continue its 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, Parts I and II). (For background on the report, see Press Release GA/L/3009 of 28 October.)
Statements
SYARGEI SYARGUEEU (Belarus) said the task of elaborating a draft convention on the establishment of an international criminal court, to be submitted for consideration by a conference of plenipotentiaries, could be entrusted to the Preparatory Committee. Work on the draft text should be carried out by open-ended working groups, with a staggered schedule of meetings. That would enable small delegations to take part in the discussion on various issues of the draft statute.
There should be a close connection between the court and national judicial organs, he said. It should complement the national judicial systems. However, the principle of complementarity should not result in the imposition of unnecessary limits on the court's jurisdiction. The court's jurisdiction should be limited to hard core crimes. However, genocide should be singled out as a crime for which acceptance of the court's jurisdiction would be inherent.
The list of crimes in the draft statute over which the court would have jurisdiction seemed incomplete and could be extended, he said. Recent events had demonstrated that the most serious violations of international humanitarian law occurred in armed conflicts of a non-international character. Any State party to the statute must be able to request a review by the court. "The criminal justice system should not simply satisfy the interests of one member of the community."
DAVID RUBADIRI (Malawi) said the General Assembly must find ways to help developing countries send their experts to future sessions of the Preparatory Committee. The court's universality could only be ensured through the participation of all States at all levels of the process.
Malawi considered 1998 as a realistic date for the holding of the diplomatic conference that would consider the draft articles for adoption. It was important that the dates for that conference be established.
JORGEN MOLDE (Denmark) said the international criminal court should be established by a multilateral treaty, to ensure that it would have the necessary authority. The Assembly should adopt the treaty establishing the court and open it for signature and ratification or accession. The basic
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elements of the relationship between the court and the United Nations could also be laid down in that resolution.
He said the court's jurisdiction should be limited at first to the core crimes under general international law. Those would include genocide, aggression, war crimes, crimes against humanity and attacks against United Nations and associated personnel. The court's jurisdiction over the core crimes should be considered inherent. By acceding to the statute, States would accept the court's jurisdiction, and no additional State consent would be required in a particular case.
All States parties should be able to trigger the court's involvement in a particular case, he said. The prosecutor must also have the power to initiate investigations ex officio, on the basis of information obtained from any source. Denmark supported the proposal made by the Chairman of the Preparatory Committee that a special fund be established to finance the participation of representatives from low-income developing countries in that Committee and in the diplomatic conference.
ASHWANI KUMAR (India) said that the recent resurgence of crimes against humanity, particularly as seen in the former Yugoslavia and Rwanda, underscored the urgent need for an international criminal court. That court must facilitate the widest participation of States, in order to ensure its universality. The primacy of national justice systems should be honoured. The court must also honour individual human rights.
He said that a truly independent international court should not be subject to political interference, particularly from the Security Council or other United Nation bodies, he said. The scourge of terrorism should also be included in the criminal jurisdiction of the proposed court.
DUMITRU MAZILU (Romania) said the international criminal court should be an independent judicial institution, possessing an international legal personality and enjoying adequate privileges and immunities. It should be established by a multilateral treaty, to provide it with the necessary independence and authority. Such a treaty should contain the court's statute, as well as other instruments relevant to its functioning. The standard of due process, to protect the rights of the accused, should be fully guaranteed. Capital punishment should be excluded from the sentences that could be imposed by the court.
The relationship between States and the court must be based on a permanent cooperation, he said. The principle of complementarity was particularly important. A flexible system of cooperation should be encouraged, since it would allow scope for special constitutional requirements of States as well as for their obligations under existing treaties. It should be understood that the court would have to act in a political environment.
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Since States could influence the complex process of their cooperation with the court, the Preparatory Committee must elaborate the main elements of such cooperation, so as to ensure the efficiency of the court.
HILAIRE SOULAMA (Burkina Faso) said the crime of aggression should be included under the court's jurisdiction. While the Charter placed aggression in the sphere of the Security Council, it did not define it. The definition of aggression was a legal matter, and should be under the jurisdiction of the court. The court must be independent and beyond reproach. Priority attention should be given to ensuring the maximum participation and support of States.
MARJA-LIISA LEHTO (Finland) said a link between the court and the Security Council, enabling it to refer matters to the court, could be envisaged. However, the court's independence as a judicial institution should be carefully preserved. The primary political decisions with respect to jurisdiction, trigger mechanisms and complementarity would undoubtedly remain to be taken by the conference of plenipotentiaries. The Preparatory Committee need not try to do all of that work. Neither should it overload the draft statute with detailed rules that could best be left for the court itself to elaborate.
VOLODYMYR A. VASSYLENKO (Ukraine) said the court should be a permanent independent judicial institution which would meet only when a complaint was actually submitted to it. That was a practical approach and would reduce the costs associated with the court.
The principle of complementarity was essential in the creation of the court, he said. A balanced approach must be taken, so as not to limit the court's effectiveness and efficiency. The international community had a special responsibility to ensure the protection of United Nations and associated personnel. Related crimes, and their punishment, should be under the jurisdiction of the court.
ROBERT R. FOWLER (Canada) said that if the current momentum to establish an international criminal tribunal was lost, the opportunity might not come again. A diplomatic conference to adopt the statute of the court should therefore be convened as soon as possible. The establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda had proven that the international community could accept the idea of the need for a functioning international criminal court. Its establishment could be of tremendous deterrent value if it was allowed to function effectively.
"My Government is disappointed that more developing countries are not represented in the Preparatory Committee", he went on to say. It was in the interest of all nations, particularly those most likely to be subjected to unrest and conflict, to support the court. The court must have jurisdiction over events arising out of conflicts of both an international and internal
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nature. The Security Council should be permitted to refer situations to the court so as to avoid the creation of future ad hoc tribunals, he said. However, it should not be allowed to control which cases went before the court. In addition, its judges should be elected by the General Assembly. That would represent a stronger commitment to the court by all Member States, regardless of whether they were parties to its statute.
NJUGUNA MOSES MAHUGU (Kenya) said it was not enough for an international criminal court to be effective. It must also enjoy universal acceptance and meet the highest standards of justice and fairness. A significant obstacle in the current phase of discussions was the continued absence of a large number of delegations, particularly from developing countries. The General Assembly must find a way to encourage developing countries to participate actively in future work on establishment of the court. The contribution by non- governmental organizations had greatly enriched the work of the Preparatory Committee and had helped to generate interest in the court.
EPOTE RAYMOND (Cameroon) said the international criminal court could be paralyzed if it was required to seek the approval of national courts on its jurisdiction for each case. Although Cameroon supported the concept of complementarity, many States seemed to be overly attached to the jurisdiction of their national courts.
The impetus to establish an international criminal court came at a time when there had been a dramatic increase in crimes against humanity. That increase had left many States powerless to prosecute those crimes. All States must demonstrate solidarity in the creation of the court if such crimes were to be dealt with effectively.
ABDULKADIR JAILANI (Indonesia) said the principle of complementarity was an important and essential component in the establishment of an international criminal court. However, complementarity should supplement rather than supplant national jurisdiction. For example, the court should exercise jurisdiction in cases involving serious crimes when the national authorities were unable, due to extraordinary circumstances, to prosecute the individuals concerned. However, it would be cost-effective for the court to avoid prosecution when national courts were able to deal effectively with such cases.
The principle of complementarity must be looked at in the context of such issues as State consent, the jurisdiction of the court, and trigger mechanisms to activate its involvement, he said. There should be a flexible mechanism that took account of various national requirements. Neither States nor the international court could be obliged to recognize a criminal judgement of another State or national court -- or vice versa -- in the absence of an agreement on judicial cooperation between the parties.
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He said there must be clarification of the complaint mechanism set out in the draft statute. Only States parties having a direct interest in a particular case should be able to file a complaint. That principle was needed so as to avoid frivolous, politically motivated and unsubstantiated claims. Furthermore, when a complaint was lodged, the court's jurisdiction should be affirmed only after completion of a thorough investigation.
CARLOS CRISOSTOMO (Chile) said that ad hoc jurisdictional bodies such as were created to prosecute crimes in the former Yugoslavia and in Rwanda were adequate for emergency situations. However, they were not enough. Only a permanent international criminal court would ensure the complete prosecution of crimes.
If the current process of exploring the creation of an international criminal court was followed without a time-limit, it could lead to the creation of endless documents and proposals, he said. There should now be a new process, aimed at preparing for the convening of the diplomatic conference. Setting a date for the conference was now fundamental. The proposed date of June 1998 was appropriate.
LARS MAGNUSON (Sweden) said the international criminal court should be given sufficient authority to effectively remedy the impunity which continued to exist more than 50 years after the holocaust and the horrors of a world war. The court should have inherent jurisdiction, on the understanding that its competence would be limited to the most serious crimes under general international law -- the so-called core crimes. It was difficult to agree that the Security Council should be allowed to refer cases to the court, as that would seriously imperil the court's independence, he emphasized.
By becoming parties to the treaty establishing the court, States should adhere to the system as a whole, he said. As to the principle of complementarity, admissibility rules must strike an appropriate balance between national jurisdictions and those of the international court. "There must be concurrent jurisdiction with primacy for the international court only when the national legal systems have failed."
ABDUL RAZZAK A. THAHIM (Pakistan) said a balance between the jurisdiction of the international criminal court and national courts must be found. That fundamental issue should be addressed as a separate provision of the statute. The international criminal court should assume jurisdiction only when national trial procedures were ineffective or unavailable.
Crimes of aggression should not be included in the court's jurisdiction, he said. The definition of aggression adopted by the General Assembly in 1974 was political rather than legal in nature. The crime of aggression was traditionally considered as one committed by States; the court should limit its jurisdiction to individuals.
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