DRAFT CODE OF CRIMES AGAIN PEACE OF MANKIND SHOULD BE CONSIDERED IN CREATING INTERNATIONAL CRIMINAL COURT, SIXTH COMMITTEE TOLD

5 November 1996

Press Release
GA/L/3015

DRAFT CODE OF CRIMES AGAIN PEACE OF MANKIND SHOULD BE CONSIDERED IN CREATING INTERNATIONAL CRIMINAL COURT, SIXTH COMMITTEE TOLD

19961105 Court's Subject-Matter Jurisdiction Should Be Limited to Core Crimes Defined by Code, Netherlands Says

The draft code of crimes against the peace and security of mankind should be used in the creation of an international criminal court, the representative of the Netherlands said this morning, as the Sixth Committee (Legal) continued its consideration of the report of the International Law Commission, which drafted the code.

The definition of crimes was a major issue in discussions on creation of the international court, he said. That body's subject-matter jurisdiction should be limited to the core crimes as defined in the draft code. The code's inclusion of only the most serious core crimes reflected the views of Member States.

It would not be constructive to have contradictory definitions of the same crimes, especially since many States supported the idea of including the draft code in the statute of the international criminal court, the representative for Argentina said. Serious thought should must also be given to development of the penal aspect of international law.

The representative for Singapore expressed serious reservations about the code's provisions by which an individual who was tried by a national court could again be tried for the same crime by the court of the State where the crime was committed and the State which was its main victim. That derogated from the principle that one should not be tried twice for the same crime, he said.

Statements were also made by the representatives for the Czech Republic, United States, China, Sri Lanka, United Republic of Tanzania, Germany and Greece.

The Sixth Committee will meet again at 3 p.m. on Wednesday, 6 November, to continue its consideration of the Commission's report.

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its consideration of the report of the International Law Commission on the work of its forty-eighth session (document A/51/10 and Corr.1). It 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. (For more background information, see Press Release GA/L/3014 of 4 November.)

The Committee also has before it 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 and Corr.1), 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.

A report of the Secretary-General containing replies received from Japan and the United States on suggestions relating to the work of the International Law Commission (document A/51/358 and Add.1) is also before the Committee. One suggestion is that the Commission includes on its agenda an item on diplomatic protection; the other proposes that it initiates a feasibility study on the law of the environment.

Another report of the Secretary-General (document A/51/365) contains a reply from Japan on the present state of the codification process within the United Nations system.

Statements

ADRIAAN BOS (Netherlands) said that the limited scope of the present draft code, particularly its inclusion of only the most serious core crimes, was a major improvement which reflected the input of Member States during the most recent debate on the matter. The qualification of core crimes as those carried out in a systematic manner or on a large scale was not aimed at limiting the scope of the specific crime. Rather, it sought to identify only the most serious offenses against the peace and security of mankind.

The draft code should be used in the creation of an international criminal court, he said. A major discussion in relation to creation of that

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court was the definition of crimes. The subject-matter jurisdiction of the international criminal court should be limited to the core crimes as defined in the draft code.

VACLAV MIKULKA (Czech Republic) said the work of the International Law Commission was not to codify all crimes but only those that could jeopardize the well-being of persons. The draft code of crimes dealt with individual responsibility for crimes and with the direct application of international law to the perpetrators of such crimes. Some crimes defined by the code were committed by perpetrators acting on behalf of a State; their actions went hand-in-hand with the responsibility of the State.

An important issue to be considered was the punishment of crimes under either international or domestic law, he said. In some cases, the provisions of domestic law could contradict those of international law. Domestic law played an important role in implementing international treaties that dealt with certain categories of crimes. With respect to the crime of aggression, the Commission's report was efficient in dealing with individual, rather than State responsibility.

The re-emergence of genocide had alarmed the international community, and no one doubted the need for its inclusion in the draft code. On the question of penalties to be applied, he said the punishment must be in proportion to the nature and the gravity of the crime. It also might be worthwhile to include the draft code in the statute of the international criminal court. The draft code should be adopted as a declaration by the General Assembly.

JOHN CROOK (United States) expressed pleasure that the Commission had decided to limit the scope of the draft code to a core group of serious offenses that were generally recognized by the international community. The definitions of key terms and concepts that were set forth in the commentaries had been clarified in the present draft.

He said that the crime of aggression remained a difficult one to define, as historical precedents offered no clear guidance. The Commission had recognized that the draft code was concerned with the conduct of individuals rather than States, and so had focused on individual conduct that would be punishable.

Some of the acts enumerated in the draft code, such as "enforced disappearances", might not appear as matters for universal and international criminal jurisdiction, he said. Such terms should be defined more precisely, to make it clear that they encompassed recognized criminal conduct.

CHEN SHIQIU (China) said there were some serious problems in the draft code which could not be ignored. For example, the principle of

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non bis in idem in article 13 of the draft code [i.e. that one may not be tried twice for the same crime], was widely recognized and applied in national criminal systems. However, the draft cited exceptions. It said that if the international criminal court decided that a judgment by a national court fell within those exceptions, the international criminal court would have the right to try the case again. The question of whether the international court could function as a court of review was one of the more controversial issues in deliberations of its draft statute. Nearly all States preferred that the future court should have no review jurisdiction. It should only act as a complement to national courts.

Although crimes against United Nations and associated personnel were becoming increasingly serious, they were not on par with those international crimes included in the draft, he said. The inclusion of such crimes in the draft code could seriously upset the balance of the listed crimes. Furthermore, their inclusion rendered incomprehensible the exclusion of such crimes as international terrorism and drug trafficking.

He said there were inconsistencies between the current provision of the draft code and the view of most of the States which participated in the work of the Preparatory Committee for the international criminal court. The draft code and the statute of the international criminal court were closely related.

JOHN DE SARAM (Sri Lanka) said that while his country supported the overall approach followed by the Commission, the current draft code could not be viewed as comprehensive, nor as a code for all time. Its substantive scope might have to be enlarged in years to come as further consensus possibilities emerged.

The distinction between codification and the progressive development of international law was not easy to discern, he said. Difficulties could arise as one moved away from multilateral treaties and authoritative international findings.

Although the code's provision on the crime of aggression was not flawless, it deserved close consideration.

JAMES L. KATEKA (United Republic of Tanzania) said the inclusion of certain crimes in the draft code did not affect the status of other crimes under international law. His country was concerned about the code's failure to define the crime of aggression. The Commission should have defined aggression in terms of general criteria, because of the close link between the individual and the state in the commission of that crime. The Commission had been wise to leave the question of specific penalties open.

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ENRIQUE CANDIOTI (Argentina) said the inclusion of crimes against humanity and war crimes under the draft code made it possible to criminalize atrocities that were committed domestically. Serious thought must be given to development of the penal aspect of international law. War crimes should include domestic armed crimes.

He said Argentina supported the inclusion of crimes committed during peacetime in the draft code. Links between the draft code and the statute of the international criminal court should not be overlooked. It would not be constructive for them to have contradictory definitions of the same crimes, especially since many States supported the idea of including the draft code in the statute of the international criminal court.

HARTMUT HILLGENBERG (Germany) said some of the provisions in the draft code did not provide a firm basis for the unambiguous establishment of individual criminal responsibility. If the draft code was to become operational, it must clearly define the general rules that established such responsibility. The code's main objective was to enable the international community to bring to justice the main perpetrators of crimes which were of such gravity that they victimized mankind as a whole.

He said the Commission had not defined specific penalties for specific crimes, leaving punishments to the different legal systems which claimed jurisdiction. That made it difficult to implement the extradition principle. The incident of the "missing men of Srebrenica" made it clear that a provision on the forced disappearance of persons should be included in the draft code of crimes.

He said that the draft code should be adopted as a declaration of the General Assembly. It could also contribute to the work of the Preparatory Committee now involved in drafting of the statute for an international criminal court.

MATHEW JOSEPH (Singapore) said there existed an extensive degree of overlap between the work on the draft code and that of the Preparatory Committee on the Establishment of an International Criminal Court. That overlap ranged from the definition of crimes to the principles of criminal responsibility. The draft code should be forwarded to the Preparatory Committee with a recommendation that it be used as part of the basis for drafting the court's statute.

Further elaboration was necessary with respect to the code and the principle of criminal liability, he said. "The precise definition of whether and when criminal liability attaches to an individual is of critical importance if effect is to be given to the principle nullum crimen sine lege" [lit., no crime without law].

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He also expressed serious reservations about the code's provision that an individual who was convicted or acquitted by a national court could again be tried for the same crime by the national court of the State where the crime was committed and the State which was its main victim. That represented a derogation from the principle of non bis in idem [i.e. that a man shall not be tried twice for the same crime].

CONSTANTIN ECONOMIDES (Greece) said the draft code of crimes was not complete. Greece regretted its restricted nature. Among those definitions of crimes omitted, the threat of aggression was most the serious. Aggression was the most important crime among States; that gap in the draft code should be filled. A section should be included in the draft code explaining that, if a crime was omitted from the present text, that did not mean it was not a crime against the peace and security of mankind.

He said the Preparatory Committee for the international criminal court should take inspiration from the draft code, especially for the definition of crimes. The code's definition of serious crimes against the peace and security of mankind was one of its most important contributions.

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