DRAFT CODE OF CRIMES AGAINST PEACE, SECURITY OF MANKIND UNDER CONSIDERATION IN LEGAL COMMITTEE
Press Release
GA/L/3014
DRAFT CODE OF CRIMES AGAINST PEACE, SECURITY OF MANKIND UNDER CONSIDERATION IN LEGAL COMMITTEE
19961104 Draft Code Adopted by International Law Commission; General Assembly Asked To Decide Upon Appropriate Form for Draft CodeThe Sixth Committee (Legal) this morning began consideration of the report of the International Law Commission on the work of its forty-eighth session, which contains a 20-article draft code of crimes against the peace and security of mankind.
The draft code, adopted by the Commission when it met at Geneva from 6 May to 26 July, was a task first entrusted to the Commission by the Assembly in 1947. The articles are divided into two parts: general provisions; and the definitions of five categories of crimes against the peace and security of mankind. The Commission recommended that the Assembly decide upon the most appropriate form of the draft code -- an international convention, incorporation of the code into the statute of an international criminal court, or as a declaration of the Assembly -- that would ensure the widest possible acceptance by Member States.
Speakers today generally favoured an international convention or treaty. The representative of Bahrain said the draft code should be adopted as a multilateral treaty, to be signed and ratified by nations, in order to ensure wider acceptance by governments. The representative of Japan also said it should be adopted as a treaty since, by its very nature, it contained various elements in common with other international conventions. The representative of Brazil said adopting the present draft code in a treaty would make it an efficacious legal instrument.
Austria's representative, however, said none of the proposed forms were appropriate at the present time since it might affect the behaviour of States while negotiations were still proceeding on the statute of an international criminal court.
The Chairman of the International Law Commission, Ahmed Mahiou, introduced the Commission's report.
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Also this morning, the President of the International Court of Justice, Mohammed Bedjaoui, said his presence in the Committee was intended to encourage States to have more frequent recourse to the service of the International Court of Justice. He explained that the institution of "forum prorogatum" allowed the Court flexibility, as States could consent to the jurisdiction of the Court after a dispute had arisen.
Statements were also made by the representatives of Austria, France and Guatemala, as well as the Observer of Switzerland.
The Sixth Committee will meet again at 10 a.m. Tuesday, 5 November, to continue its discussion on the report of the International Law Commission.
Committee Work Programme
The Sixth Committee (Legal) met this morning to begin consideration of the Report of the International Law Commission on the work of its forty-eighth session (document A/51/10). The Commission, which met at Geneva from 6 May to 26 July, was established by the General Assembly in 1947 to codify customary international law and to promote the codification and progressive development of international law in areas where customary law did not exist or had not sufficiently evolved. The Commission, which meets annually, is composed of 34 members who are elected by the General Assembly for five-year terms and who serve in their individual capacity, not as representatives of their governments.
At its forty-eighth session the Commission adopted a 20-article draft code of crimes against the peace and security of mankind, a task first entrusted to it by the Assembly in 1947. The articles are divided into two parts: general provisions; and definitions of five categories of crimes against the peace and security of mankind. The report of the Commission contains both articles and attached commentaries.
The general provisions consist of: scope and application of the code; individual responsibility; punishment; responsibility of States; order of a government or superior; responsibility of the superior; official position and responsibility; establishment of jurisdiction; obligation to extradite or prosecute; extradition of alleged offenders; judicial guarantees; non bis in idem (to protect against multiple prosecutions for the same crime); non-retroactivity; defences; and extenuating circumstances.
The five crimes against humanity identified and defined in the draft code are: aggression; genocide; crimes against humanity; crimes against United Nations and associated personnel; and war crimes.
During its session, the Commission considered various forms for drafting the code, such as an international convention, incorporation of the code in the statute of an international criminal court, or adoption of the code as a declaration by the General Assembly. It recommends that the Assembly select the most appropriate form of the draft code that would ensure the widest possible acceptance by Member States. The Commission also requests the Secretary-General to bring the draft articles to the attention of the Preparatory Committee on the Establishment of an International Criminal Court.
In its report the Commission also transmits to States for comments and observations, through the Secretary-General, the draft articles on State responsibility. The Commission completed a first reading and provisionally adopted the 60 draft articles, which are divided into three parts: origin of international responsibility; content, forms and degrees of international responsibility; and settlement of disputes. The draft articles also contain
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annexes on the Conciliation Commission and the Arbitral Tribunal, both of which are means of dispute settlement under the draft articles.
At this year's session, the Commission also considered such matters as: State succession and its impact on the nationality of natural and legal persons; international liability for injurious consequences arising out of acts not prohibited by international law; and the law and practice relating to reservations to treaties.
On the topic of State succession, the Commission decided to recommend to the Assembly that it take note of a preliminary study completed by its working group and that it request the Commission to undertake a substantive study on the topic entitled "Nationality in relation to the succession of States". The first reading of the resulting articles would be completed during the forty-ninth or, at the latest, fiftieth session of the Commission.
On the topic of international liability for injurious consequences arising out of acts not prohibited by international law, the report of the Commission's working group is attached to the report as an Annex. The proposed 22 draft articles and commentaries in the working group's report are divided into three chapters: general provisions; prevention; and compensation or other relief. The articles are submitted to the Assembly for comment. With respect to law and practice relating to reservations to treaties, the Commission decided to examine the second report of its Special Rapporteur on the subject at its next session.
In its report, the Commission also recommends various methods for enhancing the progressive development and codification of international law and for improving the responsiveness and efficiency of its own work methods. The Commission, for example, recommends that: its report be shorter and more thematic with every attempt made to highlight and explain key issues; working groups be used more extensively; a split session be tried in 1998; and the Commission's statute be updated and consolidated to coincide with its fiftieth anniversary in 1999.
Also before the Committee is a note by the Secretary-General on the report of the International Law Commission on the work of its forty-eighth session (document A/51/332), which contains the draft articles on the draft code of crimes against the peace and security of mankind and the draft articles on state responsibility.
Statements
AHMED MAHIOU, Chairman, International Law Commission, said that the Commission's adoption on second reading of the draft code marked the completion of the task that was entrusted to it in 1947. The draft code consisted of 20 articles, which were divided into two parts. The first part
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contained general provisions relating to the scope and application of the code, the principles of individual criminal responsibility and punishment, as well as procedural and jurisdictional issues. The second part of the code contained the definitions of five categories of crimes: aggression; genocide; crimes against humanity; crimes against United Nations and associated personnel; and war crimes.
He said that the code defined the crime of aggression for purposes of individual aggression, not State aggression, which was beyond the scope of the code. Also, the form of individual involvement was limited to leaders or organizers, recognizing the fact that aggression was always committed by individuals who occupied the highest decision-making positions in the political or military.
Continuing, he said that the category of crimes against humanity was defined in terms of general criteria, followed by a list of individual offences. For a crime to qualify as a crime against humanity, it must be committed in a systematic manner or on a large scale and be instigated or directed by a government, organization or group. Acts committed by terrorists, as well as the crime of apartheid, could qualify as crimes against humanity. Finally, war crimes would qualify as a crime against the peace and security of mankind only when committed in a systematic manner or on a large scale.
GERHARD HAFNER (Austria) said the draft code of crimes against the peace and security of mankind had benefited from the reduction in the number of crimes in the present text.
The International Law Commission had raised the question of the form for the draft code, he continued. It had mentioned an international convention, incorporation in the statue of the international criminal court or a declaration by the General Assembly. He did not believe that any of those forms would be appropriate at the present time, since any of them would have a more or less imperative influence on the attitude of States. "Even if the code takes the form of a resolution, the States would be induced by it to adjust their legislation accordingly", he said. In light of the ongoing discussions on the international criminal court, such an effect could have undesired consequences. Since the results of the negotiations on the statue of the international criminal court were still unknown, it was still difficult to decide whether they would conform to the code as it was now formulated. Even so, he supported inclusion of the crimes against United Nations and associated personnel.
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CARLOS CALERO RODRIGUES (Brazil) said if the code was to be a viable instrument, it must not be overambitious and should only embody acts that were gross infringements of universally accepted standards of human behaviour. He welcomed the inclusion in the code of new categories of crimes, such as crimes against the United Nations and associated personnel. However, in order that it might better stand by itself, some additional elements should be added. For example, a definition of the expression "United Nations operation" was needed.
He said that, according to the draft code, for any one of the acts listed in the several subparagraphs of article 19 to be considered a war crime, it must have been performed in a systematic manner or on a large scale. "It is clear that in drafting this provision, the International Law Commission opted for a task of pure codification and took pains to include in its text only acts which generally accepted norms of international law characterized as crimes", he said. However, since the acts listed were taken from different instruments, they were presented in many different subparagraphs, which at first led to confusion. The article needed to be clearer. He suggested it begin with acts that affected persons individually, followed by acts that affected collections of human beings. It could conclude with acts that affected property.
The draft, in its present form, was a valuable contribution to the possibility of providing the international community with an adequate instrument to penalize the conduct of individuals whose actions shook the foundations of international peace and the security of mankind. With respect to the draft of the code of crimes, he suggested it be adopted in treaty form. In that way, it would have the desirable binding power of a general character. "Only then, and in relation to the States which become parties to that treaty, would the code become the efficacious instrument it should be", he said. Also, a link needed to be established between the code -- in the form of an international convention -- and the statue of the international criminal court, with consideration given to early incorporation of the provisions of the code in the statute.
PERRAN DE BRICHAMBAUT (France) said that the crimes against the United Nations and associated personnel should not be included as one of the five major crimes in the draft code and should be dealt with in another provision. He said that war crimes were also not properly placed in the code. Only the gravest war crimes should be included in the draft. Also, the definition of the crime of aggression was too conceptual and did not adequately take into account the role of the Security Council in defining aggression.
YASUMASA NAGAMINE (Japan) said the list of crimes against the peace and security of mankind had been limited to aggression, genocide, crimes against humanity, war crimes and crimes against the United Nations and associated personnel, in order to ensure the widest possible acceptance of the code.
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However, if it was to effectively deter and ban war crimes and inhumane acts, the code needed to be universally accepted.
There had been some discussion about defining crimes that were also included in the statute of the international criminal court. Where they overlapped, the code must be consistent with the international criminal court statute. Unless the two documents were consistent, various questions would arise and lead to confusion. Further, the Commission had decided that the final form of the code should be determined by the General Assembly. However, he believed that the draft code should be adopted as a treaty since, by its very nature, it contained various elements in common with other international conventions.
HUSSEIN M. AL-BAHARNA (Bahrain) said that the draft code should be adopted in the form of a multilateral treaty or a convention to be signed and ratified by nations. The draft code in its present form would ensure a wider acceptance by governments.
He said that the present draft code's definition of crimes against humanity included new qualifications in its formulation. For example, the new expression "wilful killing" included in the draft code was better suited than the previous "murder". Further, the present expression "enslavement" was a more acceptable legal term than the former expression "reduction to slavery".
He also welcomed the inclusion of crimes against the United Nations and associated personnel to the list of major crimes. He noted that the definition included in the draft code made it clear that to be considered criminal, such acts must be committed intentionally, with the offender aware of the status of his victim as an internationally protected person.
ROBERTO LAVALLE (Guatemala) said the draft code and draft statute of the international criminal court, covered the same ground and mutually complemented each other. It seemed that the draft statute was destined to become a convention that would create an international criminal court. It had yet to be decided whether the draft code would take the form of a multilateral treaty or a declaration.
LUCIUS CAFLISCH (Switzerland) said that the present draft code should help the Preparatory Committee on the Establishment of an International Criminal Court to move ahead. He noted that the Preparatory Committee should not be bound by the draft code, but that the code should expedite the deliberations of the Committee and make for a prompt convening of a convention to create an international criminal court.
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He said that the draft code did not have as its sole purpose the establishment of an international criminal court. The draft code should instruct States in the proper conduct to be followed in determining crimes against the peace and security of mankind. The draft code would instill in the consciousness of States the fact that individuals could be guilty of international crimes and States should punish them.
Statement by President of International Court of Justice
MOHAMMED BEDJAOUI, President of the International Court of Justice, said that his presence before the Sixth Committee was intended to encourage Member States to have more frequent recourse to the service of the International Court of Justice.
He said that the jurisdiction of the Court was based on the consent of States, which could be expressed at any time. It could be expressed before a dispute arose by means of a jurisdictional clause inserted into an international treaty. The consent of a State could also be expressed on a case-by-case basis by means of a special agreement.
He said that another way to express consent after a dispute was through "forum prorogatum". That demonstrated the Court's great flexibility, because it manifested the consent of States to the jurisdiction of the Court after a dispute had arisen. The method, however, was under-utilized and should be regarded as a complement to, not a substitute for, the more formal methods of accepting jurisdiction of the court.
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