INDIVIDUALS' COMPLAINTS SHOULD HAVE STANDING BEFORE INTERNATIONAL CRIMINAL COURT, NEW ZEALAND TELLS SIXTH COMMITTEE

Press Release
GA/L/3012

INDIVIDUALS' COMPLAINTS SHOULD HAVE STANDING BEFORE INTERNATIONAL CRIMINAL COURT, NEW ZEALAND TELLS SIXTH COMMITTEE

Respect for Rights of Accused, Court's Relation With Security Council, Also among Matters Discussed

Since it was individuals who were affected by international crimes, their complaints must have standing before the proposed international criminal court, the representative of New Zealand said this morning, as the Sixth Committee (Legal) continued its consideration of the report of the Preparatory Committee on the establishment of the court.

It was individuals, not States, who were killed, raped and tortured, she said. The court's prosecutor must therefore be able to initiate investigations to ensure justice for them. The representative of Ireland said the court should fully respect human rights standards. Principles for protecting the rights of the accused, appearing in a number of instruments, should be drawn upon for the court's draft statute, he told the Committee.

The representative of Egypt was among those stressing the need to establish a proper relationship between the proposed court and the Security Council. While the Council had a role to play, it should not interfere with 1the court's independence, she said. The Council should only refer certain situations to the court, in order to avoid the establishment of ad hoc tribunals.

Statements on the international criminal court were also made by the representatives of Mozambique, Slovenia, Kyrgyzstan, Colombia, Nigeria, Ethiopia, Czech Republic, United Republic of Tanzania, Australia, Germany, Guatemala, Bulgaria, Argentina, Brunei Darussalam, The former Yugoslav Republic of Macedonia, Sudan, Cote d'Ivoire, Swaziland, Kazakstan, Myanmar and Bosnia and Herzegovina.

Also this morning, the Sixth Committee decided to establish a working group to consider the effects of Security Council sanctions on third-party States.

The Committee will meet again at 3 p.m. today to continue its discussion 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 on an International Criminal Court on its activities during 1996 (document A/51/22, Parts I and II). (For background, see Press Release GA/L/3009 of 28 October.)

Statements

CRISTIANO DOS SANTOS (Mozambique) said that judges on the international criminal court should be elected on the basis of equitable geographical representation, drawing on the recent experience of the International Tribunal for the Law of the Sea. There must be balance and diversity in the composition of the court, which should represent all principal legal systems of the world.

He said the court should be established by a multilateral treaty, as that would give it the necessary independence and authority. The court must also be associated with the United Nations, so as to ensure its universality, but without jeopardizing its independence.

MIRJAM SKRK (Slovenia) said the Convention on the Safety of United Nations and Associated Personnel should fall within the court's jurisdiction. There must be further elaboration of the list of crimes to be covered by the court, particularly with respect to war crimes and crimes against humanity. The crimes of genocide and aggression required special consideration.

The draft statute of an international criminal court and the draft code of crimes against the peace and security of mankind should be carefully examined and consolidated, she said. Grave breaches of the laws relating to international armed conflicts should be considered war crimes, as was the practice of the International Criminal Tribunal for the Former Yugoslavia. Should a new form of crime be recognized under general international law, the statute of the court would have to be amended, she added.

JOSE MARIA CHAVES (Kyrgyztan) said the court's jurisdiction must be limited to those crimes that were international by their very nature and did not fall within national jurisdiction. Its role should complement that of national courts and not conflict with them. The court might be called to judge some crimes committed prior to its existence, as was the case in Nuremberg, Yugoslavia and Rwanda. The principle of nullo crime sine lege ["no crime without law"] must be strictly applied.

CLARA INES VARGAS DE LOSADA (Colombia) said that while it was essential for the court to have a relationship with United Nations organs, and especially the Security Council, its independence must be maintained. It should never be subject to political interests. The court's jurisdiction must center on the gravest crimes. Penal and procedural law should also be included in the court's statute, in order to guarantee the due process.

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States must have complete clarity regarding the court's role.

ISAAC E. AYEWAH (Nigeria) said the crime of aggression should be included in the court's jurisdiction. That would allow the court to serve as a model in seeking an end to impunity. The draft code on crimes against the peace and security of mankind should be linked with the court.

He expressed serious doubts about including treaty-based crimes under the court's jurisdiction at present. There was also a potential for serious difficulties if the court was made superior to national courts. Recourse shall be taken to the international court only in the absence of national jurisdiction.

MAURICE BIGGAR (Ireland) said it would be neither expeditious nor appropriate to set up the future court as a principal organ of the United Nations through an amendment of the Charter. "We prefer that its statute be incorporated in a convention open to universal participation by States, and that it should be closely linked to the United Nations through a suitable agreement between the two organizations", he said. That close relationship should include financing of the court through the United Nations.

It was important that the court operate in a manner which fully respected international standards concerning human rights, he said. Several international human rights instruments established principles for protecting the rights of the accused; those should be drawn upon in drafting the relevant provisions of the court's draft statute.

Unlike the Security Council, the future court would be concerned with the responsibility of the individual for the crime of aggression, he said. That, however, depended on the existence of an act of aggression, for which the court must rely on a finding by the Council. The statute must recognize the distinction between the roles of the two bodies, so they might be complementary and not in conflict.

The Security Council should have the option of referring a situation to the court when it deemed that appropriate, rather than waiting for a State to do so, he said. The Council's role should not include control over whether to initiate individual criminal proceedings, which should remain within the exclusive domain of the court. Similarly, it should not have the power to veto any decision of the court or to terminate any of its proceedings.

LAMIA MEKHEMAR (Egypt) said that while the Security Council had a role to play in some situations, it should not interfere with the court's freedom and independence. The Council should only refer some situations to the prosecutor, to avoid the need of establishing ad hoc tribunals. The Council should not be considered one of the court's "triggering mechanisms".

The court's jurisdiction should include the crime of aggression as well as other crimes, she said. A clear definition of aggression must be found. In addition, the principle of legality must be included in the court's statute

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with punishment proportionate to the crimes. The principle of complementarity should be addressed clearly, with the international court having jurisdiction only when there was some breakdown in the national courts.

BERHANEMESKEL NEGA (Ethiopia) said that the crime of international terrorism should be added to the court's jurisdiction. The very nature of international terrorism, and the serious challenge it posed to the international community, justified its inclusion.

It was vitally important to ensure the wider participation of developing countries in the creation of an international court, he said. Those countries, and especially the least developed among them, should be given the necessary support. That was important if the court was to be an effective and truly universal judicial body.

MILAN BERANEK (Czech Republic) said the trigger mechanism proposed by the International Law Commission was too complicated. Except for the crime of genocide, over which the court would have inherent jurisdiction, article 21 of the Commission's draft required that the complaining State, the State having custody of the suspect, and the State on whose territory the act or omission occurred, must all have accepted the court's jurisdiction. Such a trigger mechanism might complicate the court's functioning. For that reason, the principle of inherent jurisdiction should be applicable to all core crimes.

The draft Statute did not confer any more authority on the Security Council than what was already assigned to it by the Charter, he said. "The possibility for the Security Council to trigger jurisdiction may be particularly relevant if the court's subject-matter jurisdiction is finally narrowed down to the three our four core crimes."

JAMES L. KATEKA (United Republic of Tanzania) said the crimes to be dealt by the international criminal court should be clearly defined in its statute. Acts relating to illicit drug trafficking should be included as treaty-based crimes. The International Convention against the Recruitment, Use, Financing and Training of Mercenaries should also be included, as mercenaries had committed serious crimes.

By becoming party to its statute, a State should be presumed to have accepted the court's jurisdiction, he said. The court should be established through a multilateral treaty and funded by its States parties. At first, however, it should be funded from the United Nations' regular budget. A special fund should be set up to support the participation by developing countries in the Preparatory Committee's meetings.

CATE STEAINS (Australia) said the court should be funded from the United Nations regular budget. Several precedents existed for such an approach. The characterization of the crimes under the court's jurisdiction as "the most serious crimes of international concern" justified such funding. The proposed linkage of the court with the Security Council provided another compelling reason.

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The power of the Security Council to refer matters to the court was fundamental, and would obviate the need for the Council to set up ad hoc tribunals, she said. The relationship between the court and the Council should preserve as much of the court's independence as possible. The court must also be able to determine whether a national jurisdiction was ready and able to deal effectively with alleged crimes through investigation and prosecution.

ROLF WELBERTS (Germany) said the court should be allowed to begin proceedings at the request of any State or groups of States parties to its statute. Prosecutors must have the power to undertake investigations ex officio. It was difficult to accept that the Security Council could control access to the court, although it might be in a position to refer situations or cases to it. The court must remain independent and effective. States must accept its jurisdiction upon accession to the statute without any requirement of case-by-case consent. The court should have jurisdiction when effective prosecution by national authorities was absent.

ROBERTO LAVALLE VALDES (Guatemala) said with the existence of many different opinions with respect to the functioning of the court it had been difficult to reach consensus. That was a matter of great concern to his Government. In addition, the Preparatory Committee had a tendency to pay too much attention to matters that were too specific for consideration at such an early stage. Although the draft statute had some gaps, its provisions were, on the whole, adequate.

BRANIMIR ZAIMOV (Bulgaria) said that there should be a close functional relationship between the court and the United Nations, regulated by an agreement between the two institutions. That would facilitate wider acceptance of the court's jurisdiction and help make it an effective judicial institution. The court's subject-matter jurisdiction should be limited to the most serious crimes under general international law. The completion of work on the draft code of crimes against the peace and security of mankind might be particularly relevant to the work of the Preparatory Committee on that matter.

FELICITY WONG (New Zealand) said individuals, not States, were killed, raped and tortured. It was individuals whose complaints must have a standing before the prosecutor of the court. The prosecutor must also be able to initiate investigations, so the court might ensure justice for such individuals. "The ability of the prosecutor to conduct on-site investigations is crucial", she said. How could a State refuse to cooperate with the prosecutor on the basis of a sovereignty which it had already surrendered under existing principles of international humanitarian law? she asked.

There could be no role for the Security Council to serve as a filter for prosecution from behind closed doors, she said. Justice could not be a bargaining chip in the resolution of conflicts. A mechanism might be established to keep the court's functioning under review.

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SILVIA A. FERNANDEZ DE GURMENDI (Argentina) said 1998 was a realistic date for the convening of a conference of plenipotentiaries to establish the international court. The Sixth Committee should make no new conditions regarding that date. It was important to avoid getting excessively involved in details, as that would hamper creation of the court. There is a growing will among Member States to establish the court, a matter which had remained elusive for over 50 years. Argentina was confident that that goal would finally be achieved before the close of the millennium.

PENGIRAN ZABAIDAH (Brunei Darussalam) said the work of the International Law Commission on the draft code of crimes against the peace and security of mankind could be considered by the Preparatory Committee as it sought to define crimes and the elements of crimes. The jurisdiction of the court should include the core offences of genocide, crimes against humanity and war crimes.

The court's statute must contain provisions on the general rules of criminal law and on due process. Protection should be provided for both witnesses and victims.

SRASO ANGELESKI (The former Yugoslav Republic of Macedonia) said the international criminal court should be closely linked to the United Nations and complementary to national justice systems. The court should have a preventive effect by deterring the perpetrators of heinous crimes. It could also play a significant role in the maintenance of international peace and security, especially in regions such as the Balkans.

CHARLES MANYANG (Sudan) said legal instruments represented the best means of ensuring justice in the world. The jurisdiction of the international criminal court should be confined to the gravest crimes, which should be clearly defined so as to avoid ambiguity. In the absence of consensus, specific crimes should not be included under the court's jurisdiction.

He said the court should intervene only when national jurisdictions were lacking. In some cases, the inherent jurisdiction for the court could run counter to the principle of complementarity. It was essential to maintain the court's autonomy and independence. Its statute should not give additional powers to the Security Council. ABENI HONORAT KOFFI (Cote d'Ivoire) stressed the importance of the principle of complementarity. The sovereignty of national courts should be observed except where those courts were voluntarily or involuntarily inoperative. The crime of international terrorism, once clearly defined, should be included under the court's jurisdiction. Penalties to be applied should represent the prevalent mores of all States. Greater participation by low-income States in the work of the Preparatory Committee would strengthen the universality of the international criminal court. MELUSIE M. MASUKU (Swaziland) said there were issues relating to the establishment of the court which still needed to be resolved. It was hoped that situation would not lead to a state of paralysis and inaction. "It is

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our fervent hope that the next round of the preparatory meetings will enable us to be better prepared for the diplomatic conference", he said. AKMARAL Kh. ARYSTANBEKOVA (Kazakstan) said the international criminal court should be established by a multilateral treaty. States parties to its statute should be responsible for its funding. Cooperation between the court and the United Nations was essential. There should be no political influence in the functioning of the court. There were differences among States as to whether aggression should be included under the court's jurisdiction. That crime should be included only when agreement was reached on its legal meaning. THAUNG TUN (Myanmar) said the court's statute should not confer any authority on the Security Council over and above what was assigned to it by the Charter. "The relationship between the court and the Council should not undermine the judicial independence and integrity of the court or the sovereign equality of States", he said. Only States parties to the statute and those having a direct interest in a particular case should be able to lodge a complaint, he went on to say. States having no direct interest in a case should not have that right, even if they were parties to the statute. "To avoid the court being bogged down by frivolity or politically motivated claims, we consider that it would be proper for the court not to entertain complaints from sources other than a State party", he added. ZELJKO JERKIC (Bosnia and Herzegovina) said the apprehension of indicted individuals was an important issue that must be addressed. In the former Yugoslavia, most notorious indicted individuals remained free because of a lack of political will by Member States or other authorities. The independence and properly defined jurisdiction of the future court were of paramount importance. The court should act on the basis that legal and political processes were separate.

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