CRIMES INITIALLY COVERED BY INTERNATIONAL CRIMINAL COURT SHOULD BE LIMITED TO THE MOST SERIOUS, SIXTH COMMITTEE TOLD

31 October 1996

Press Release
GA/L/3011

CRIMES INITIALLY COVERED BY INTERNATIONAL CRIMINAL COURT SHOULD BE LIMITED TO THE MOST SERIOUS, SIXTH COMMITTEE TOLD

19961031 Narrow Scope Said to Broaden Acceptance; Review Mechanism Could Provide for Expanding Jurisdiction Later

A narrow scope of jurisdiction for the proposed international criminal court, at least in the initial stage, could facilitate its acceptance and entry into force, the representative of Poland said this morning, as the Sixth Committee (Legal) continued its consideration of the report of the Preparatory Committee on establishment of the court.

Citing treaty-related crimes as an example, he went on to say that a review mechanism might be included in the court's statute to enable States parties to add to the list of covered crimes. On the same theme, the representative of Hungary said such a mechanism might make it possible to include the crime of aggression, as well as other serious crimes.

The court's jurisdiction should be broadened to include serious environmental threats which had grave and long-lasting consequences, the representative of Mongolia said. It should also include such crimes as aggression, genocide, crimes against humanity, some treaty-based crimes, and crimes against United Nations and associated personnel.

The representative of Algeria said terrorism should be included under the court's jurisdiction, while Belgium called for the addition of trafficking in human beings. The representative of Greece, too, stressed the importance of exactly delineating the court's jurisdiction. It was also essential that the court protect the human rights of the accused, he said.

Statements were also made by the representatives of Liechtenstein, Mexico, Cuba, the United Kingdom, Angola, Costa Rica, the United States, Philippines, Slovakia and China.

The Sixth Committee will meet again at 10 a.m. tomorrow, 1 November, to continue its consideration of the Preparatory Committee's report, as well as of measures to eliminate international terrorism.

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

GYORGY SZENASI (Hungary) said that the role of the prosecutor as defined in the draft statute for the court was too restricted and should be extended. All parties should be entitled to lodge a complaint with the prosecutor. An extended role for the prosecutor should be harmonized with the role of States and of the Security Council.

He said that the international criminal court should be a semi-permanent body with certain permanent working offices, such as the Presidency, the Registrar, and the Office of the Prosecutor. The option to transfer the court to a full-time body at a later stage should be retained.

He said there should also be a review mechanism to allow the option of adding additional crimes to the court's jurisdiction. Such a mechanism would make it possible to include the crime of aggression, as well as other serious crimes, in the court's jurisdiction at a later date.

CHRISTIAN WENAWESER (Liechtenstein) said the international criminal court should be efficient and independent, and not subject to undue influence from national viewpoints or political bodies such as the Security Council. Its competence should be limited to the most serious crimes under international law, including genocide, war crimes, and crimes against humanity. Its statute should contain provisions for a review mechanism, through which the initial list of core crimes could be expanded. A short list of core crimes should make it possible for all States to accept the court's jurisdiction over those crimes when they become parties to its statute. Inherent jurisdiction of the court would contribute to its efficiency.

The crimes falling within the jurisdiction of the court needed to be clearly defined, he said. The draft code of crimes constituted an important contribution to that end. He supported the principle of complementarity, but said a balance with national jurisdiction must be guaranteed. Clear rules for admissibility should be established. The court should be financed from the regular budget of the United Nations.

SOCORRO FLORES LIERA (Mexico) said only a joint effort could ensure the success of efforts to establish a viable international criminal court. However, generally accepted solutions had not yet been attained. At present,

it was difficult to say whether the diplomatic conference could take place when planned. The degree of acceptance of the court by States was also difficult to assess, since there were already 327 pages of proposals relating to the establishment of the court, many of them contradictory. It was important not to prolong unnecessarily the efforts aimed at establishing the court. It was hoped that the definite date for a diplomatic conference would be decided on by the General Assembly at fifty-second session next year.

CARIDAD YAMIRA CUETO MILIAN (Cuba) said that, to ensure that the international criminal court was representative and independent, it must be created by means of a multilateral treaty. The concept of complimentarity was also essential, except when there was a breakdown in the internal administration of a national court. The court should have a close relationship with the United Nations but also remain independent. The Security Council should not interfere with that independence. The crimes to be under the court's jurisdiction should be defined concisely and clearly. Included should be crimes against humanity, genocide and war crimes.

ARGHYRIOS FATOUROS (Greece) said it should not be surprising that a compromise had not yet been reached in establishing an international criminal court. "Perhaps because the issue has been discussed for some time now, we may tend to lose sight of the originality of the enterprise we are engaged in, of the extent to which it is a sharp departure from the traditional ways of thinking and of acting in international law."

On the country's relationship with United Nations organs, he said the relationship between political and judicial organs was a delicate and difficult matter, even in a national context. The exact delineation of the court's jurisdiction was also very important, and it was essential to ensure protection of the human rights of the accused. The court's statute should fully respect the principle of human rights.

"We should not expect the Preparatory Committee to be able to reach perfect agreement on everything", he said. Some of the more difficult and important problems would remain to be resolved through the give and take of the diplomatic conference.

NOUR-EDDINE SIDI ABED (Algeria) said terrorism should be included among the crimes to be under the court's jurisdiction. Algiers favoured a less- restrictive approach to criminal jurisdiction than that outlined in the draft statute. Treaty crimes must also be covered.

The concept of complementarity must be respected, he said. As the administration of justice was a fundamental responsibility of individual States, national courts should have primacy. Future negotiations on the draft statute should not be compromised by any artificial timetable.

ELIZABETH WILMSHURST (United Kingdom) said there were a number of issues relating to establishment of the international criminal court which would only be resolved at the diplomatic conference. However, there were many other areas which needed more discussion and a narrowing of the options, before a final decision on those provisions of the statute could be made. Such issues included the definition of crimes under the court's jurisdiction, the elements of crimes and the principles of criminal law, the organization of the court and its procedure, and cooperation between States and the Court.

"We believe that the General Assembly should set a date in 1998 for a conference", she said. At its next session, the Assembly should review the progress made by the Preparatory Committee during its 1997 session. The statute should enshrine the principle of complementarity in a clearer and more detailed manner than was done by the International Law Commission.

JARGALSAIKHANY ENKHASAIKHAN (Mongolia) said serious threats to the environment having grave and long-lasting consequences should be included under the court's jurisdiction. There must be a clear and broadly accepted definition of such threats. He said the court should have a somewhat broader jurisdiction than provided for in the draft statute. It should include aggression, genocide, crimes against humanity, serious violations of the laws and customs applicable in armed conflicts, some treaty-based crimes, and crimes against United Nations and associated personnel.

Under certain conditions any State party should have the right to lodge a complaint with the prosecutor. That right should not be confined to those having a specific interest in the case.

AFONSO VAN DUNEM "MBINDA" (Angola) stressed that the independent character of the court must not be jeopardized. The principle of complementarity should apply only when the national judicial system was considered inefficient. The court's judges should be selected exclusively by Member States, and the principle of equal geographical representation should be observed.

FERNANDO BERROCAL SOTO (Costa Rica) said it was essential that the court protect the human rights of the accused, as well as of those who were convicted. The death penalty, which Costa Rica abolished over 120 years ago, should not be imposed by the criminal court. It was indispensable that the court remain independent and impartial.

DAVID SCHEFFER (United States) said the international criminal court's prosecutor should have total independence with regard to individual cases. However, the Security Council should be able to refer a situation to the court. States, too, should be able to refer situations to the court. That arrangement should eliminate the need for any future ad hoc tribunals.

However, the prosecutor should be free to decide not to investigate certain cases if the related complaints do not provide a reasonable basis for prosecution or if the acts were not of sufficient gravity, he said. There must be checks and balances on the decisions of a single prosecutor. Giving a prosecutor sole discretion to initiate investigations and file complaints could result in idiosyncratic or political decisions.

Any situation in which the Security Council was already actively involved should not be referred by a State without the Council's agreement, he said. Efforts by the Council to manage a conflict could be disrupted if international criminal proceedings were initiated without such coordination. When a situation referred by a State was not on the Council's agenda, it should be up to the court to determine whether it fell within the court's jurisdiction and within its capabilities to investigate and prosecute. The court must begin with clear and precise definitions of the grave crimes to be under its jurisdiction.

DIRK WOUTERS (Belgium) said that critical issues involved in establishment of the international criminal court included those of prevention, deterrence, stability, universality and the need to end impunity. The court must be effective if it was to be credible. Trafficking in human beings should be included among the crimes under the court's jurisdiction.

He said the court must be provided with the necessary financial resources. A balanced approach to the principle of complementarity was essential, as was an appropriately functioning trigger mechanism. A special fund should be established to enable developing countries to participate in the work of the Preparatory Committee and that of the diplomatic conference.

RAUL I. GOCO (Philippines) said the Preparatory Committee must address the transnational reach of jurisdiction, for situations in which an act committed in one territory causes effects in another. Neglecting that issue could result in immunity for crimes committed by citizens on the high seas as in foreign countries.

The prosecutor's power to appeal an acquittal as defined in the draft must be clarified, in order to avoid the invocation of double jeopardy by the accused, he said. In addition, the court should only come into play as a complement to national tribunals; it should not be allowed to judge the performance of those tribunals. The most debilitating criticism of a government was the accusation of weakness in its administration of justice.

ZDISLAW GALICKI (Poland) said his country, which had been terribly affected by crimes of a massive scale during the Second World War, was especially conscious of the need to protect the international community against a possible repetition of those crimes. The principle of complementarity in relation to the international criminal court was of crucial

importance. However, it was essential to understand that the court would not replace national judicial systems or national jurisdictions. "What we are trying to do is to assist national judicial systems and complement them when necessary, and only if necessary."

The jurisdiction of the court should be limited, at least in the initial stage, to the most serious crimes of international concern, he said. A narrower scope of jurisdiction could facilitate ratification of and accession to the statute and its entry into force. Nevertheless, crimes under the court's jurisdiction must be defined precisely in order to avoid legal uncertainty.

Treaty crimes could also be included under the court's jurisdiction, he said. Since those crimes were increasing, it might be reasonable to reconsider the proposal for including a review mechanism in the court's statute, thus enabling States parties to add to the list of crimes outlined in the statute. The court's prosecutor should have the power to initiate investigations ex officio.

IGOR GREXA (Slovakia) said that the most serious crimes against United Nations and related personnel should be included among the crimes under the court's jurisdiction. The list of core crimes would be incomplete without the crime of aggression.

He drew attention to the question of universality, which implied acceptance of the principles on which the court was based. The court should be created under a multilateral treaty; it should also maintain a close relationship with the United Nations. It should not be allowed to become hostage to its own budget through a lack of finances. A lean court was both possible and necessary.

The pace of progress towards the convening of a conference of plenipotentiaries to adopt the court's statute should not be allowed to slacken, he added.

CHEN SHIQIU (China) said that States must bear the primary responsibility for preventing and punishing international crimes. An international criminal court could only be a complement to national courts. The court's jurisdiction must be based, in all cases, on the consent of a State. The International Law Commission's draft statute provided for inherent jurisdiction without State consent with respect to genocide. That went against the principles of State sovereignty and of complementarity. "We are against any attempt in favour of expanding the so-called inherent jurisdiction to other international crimes", he said.

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