DRAFT CODE OF CRIMES AGAINST PEACE AND SECURITY OF MANKIND SHOULD INCLUDE ACTS AGAINST UNITED NATIONS PERSONNEL, LEGAL COMMITTEE TOLD

6 November 1996

Press Release
GA/L/3016

DRAFT CODE OF CRIMES AGAINST PEACE AND SECURITY OF MANKIND SHOULD INCLUDE ACTS AGAINST UNITED NATIONS PERSONNEL, LEGAL COMMITTEE TOLD

19961106 Necessary Protection for Nationals Working for United Nations, Says Poland; Other Speakers Stress Inclusion of Terrorism in Proposed Code

The draft code of crimes against the peace and security of mankind should include crimes against United Nations and associated personnel, in order to strengthen the necessary protection of nationals participating in United Nations activities, the Sixth Committee (Legal) was told this afternoon by the representative of Poland as it continued its consideration of the report of the International Law Commission on its forty-eighth session. The Commission's report contained the 20-article draft code of crimes, adopted by the Commission this year and transmitted to the General Assembly with the recommendations that the Assembly decide on the appropriate form for the draft code. The 20 articles consist of general provision and the definitions of the following five categories of crime against the peace and security of mankind: aggression; genocide; crimes against humanity; crimes against United Nations and associated personnel; and war crimes. The representative of Norway said that the inclusion of crimes against United Nations and associated personnel reflected the increase of such crimes in recent years. Mongolia's representative said that protecting United Nations and associated personnel was the least the international community could do and was consistent with the objectives of the Convention on the Safety of United Nations and Associated Personnel, adopted in 1994. Some speakers called for the inclusion of international terrorism in the draft code. The representative of India said that terrorism had assumed an even greater importance in the contemporary world and must be included in any draft code that sought wide support and consensus among States. Many States had already agreed on the inclusion of international terrorism in the draft code, said the representative of Tunisia. The representative of Pakistan added that the definition of international terrorism needed to be re-examined, so that it included such forms and manifestations as State terrorism. Statements were also made by Slovenia, Iran, Egypt, Venezuela, Slovak Republic, Mexico, Republic of Korea, Israel and Chile. The Sixth Committee will meet again at 10 a.m. Thursday, 7 November, to continue its consideration of the Commission's report.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to continue its 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 (documents A/51/10 and Corr.1). (For background information, see Press Release GA/L/3014 of 4 November.)

A note by the Secretary-General on the report (documents A/51/332 and Corr.1), also before the Committee, contains the draft code of crimes which is being transmitted so the Assembly can decide on the form the code should take, and the draft articles on State responsibility which are submitted for comment by States.

Another report of the Secretary-General (documents A/51/358 and Add.1) contains suggestions received from Japan and the United States on the work of the International Law Commission, among them that the Commission include on its agenda an item on diplomatic protection and that it initiate a feasibility study on the law of the environment. A final 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

RAZZAK A. THAHIM (Pakistan) said that "colonial domination and other forms of alien domination" should figure distinctly in the list of crimes mentioned in the draft code. That was necessary to preserve the sanctity of the universal principles enshrined in the Charter of the United Nations. Likewise, "systematic or mass violations of human rights" should be a crime in a category in itself, and be mentioned in a separate article.

He said that the definition of international terrorism should be re- examined, as terrorism had different forms and manifestations. International terrorism was only one form of terrorism. State terrorism was one of the worst forms of terrorism and should be included in the definition of terrorism in the draft code.

MIRJAM SKRK (Slovenia) said her Government supported the Commission's confirmation of the supremacy of international law, particularly the direct responsibility and liability of individuals under international law for crimes against the peace and security of mankind.

She was not convinced that an attempt to commit a crime against the peace and security of mankind should simply be listed among different forms of commission, including the various forms of complicity. "We would prefer that an attempt be dealt with in a separate paragraph of Article 2 of the present text", she said. In addition, it had been established that the punishment of

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an individual shall be commensurate with the character and gravity of the crime. "In our view, the punishment should not only depend on consequences of the crime, but also on subjective circumstances concerning the culpability of the perpetrator, such as the motive, intent and varying forms of depravity and cruelty", she emphasized.

She said the jurisdiction in respect of a crime of aggression was not clear in the draft code. Instead of universal jurisdiction, the concurrent jurisdiction between an international criminal court and a national court was envisaged. "We believe that a State against which an act of aggression was committed (a victim State) should also be given the possibility to have jurisdiction over the crime of aggression, if domestic law on criminal jurisdiction so requires", she said.

Her Government had proposed to the fiftieth session of the General Assembly that a substitution be made for the crime of apartheid by a crime of corresponding gravity concerning racial discrimination. She called attention to the fact that the international criminal court's draft statute considered war crimes that caused widespread long-term and severe damage to the natural environment -- such as an attack on a nuclear power station or a dam -- constituted a crime against the peace and security of mankind. However, those crimes could hardly be committee in a systematic manner or on a large scale.

LENE N. LIND (Norway), speaking on behalf of the Nordic countries, said four of the five categories of crimes included in the draft code were universally recognized as being a part of international customary law and, as such, were already binding upon States. Inclusion of a provision on crimes against United Nations and associated personnel reflected the increase of such crimes in recent years and highlighted the importance of the newly adopted Convention on the Safety of United Nations and Associated Personnel. She noted that the draft code had focused on only the most serious international crimes and should provide a powerful signal to States when they considered the project for an international criminal court.

ZDISLAW GALICKI (Poland) said that crimes against United Nations and associated personnel needed to be included in the draft code, because it was important for the entire international community to protect those who were acting on its behalf. Including that crime in the draft code would strengthen the necessary protection of Poland nationals, as well as nationals of other countries, who were participating in the activities of the United Nations. The draft code had become a constructive basis for further progressive work by the Preparatory Committee on the international criminal court. The draft code would be a useful instrument for defining crimes that would fail under the jurisdiction of a future international criminal court.

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JAMSHID MONTAZ (Iran) said the International Law Commission, in seeking legal consensus, had sacrificed judicial idealism -- through the exhausting codification of international crimes -- and had favoured political realism in its draft code.

The recent armed conflicts worldwide required prompt action by the international community, he continued. The question was whether all crimes committed should be criminalized internationally. However, the draft code only considered crimes committed in a systematic way and in a large scale as crimes against international peace and security. In addition, the use of illegal and illicit weapons was not included within the code.

With regard to the responsibility for a crime by an individual, it was important to recognize that, in many instances, it was very difficult to refuse to carry out an order, especially from a person in a high position, he said. The freedom of action of the person executing the order needed to be considered. The fact that refusing the order could result in his death could not be overlooked.

NABIL ELARABY (Egypt) said that the draft code did not contain a precise definition of what constituted a crime against the peace and security of mankind. It needed to be broadened. The narrow focus on serious crimes had, in the past, led Member States to set aside such crimes as apartheid and racism. Environmental crimes should be included in a separate article of the draft code and not included in the list of core crimes. Further, it was important to retain the crime of aggression in the draft code, because it was of paramount importance for maintaining the peace and security of mankind.

ROGER YEPEZ (Venezuela) said the proportion between the nature of the crime and the punishment needed to be clearer in the draft code. There was a danger that penalties would not be uniform from country to country and provisions should be aimed at regulating the matter. The draft code also failed to include provisions setting out penalties for specific crimes. Furthermore, the draft code needed to exclude the death penalty as a punishment.

With regard to the perpetrator of crimes, the draft code could have been more advanced, he continued. Instead of only giving the crime and its perpetrator an international character, the code should have been clearer in giving the perpetrator's real degree of responsibility. Also, the Secretariat should prepare a chapter on final clauses, which would include norms regarding the future revision of the draft, as well as its relation to the international criminal court. The final clauses would guarantee the universality and integrity of the future code.

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MENDSAIKHANY ENKHSAIKHAN (Mongolia) said that substantive international law on environmental crimes should be elaborated and reflected in the draft code. Given the gravity of ecological catastrophes and their indiscriminate and long-lasting effects, it was imperative that "widespread, long-term and severe damage to the natural environment" be considered a crime against the peace and security of mankind. He said that the process of drawing up a substantial law on environmental crimes should be started without delay.

He said that since United Nations activities and operations were designed to prevent disputes from arising or escalating into conflicts, its personnel needed to be protected on an international scale. It was the least the international community could do. It was also consistent with the objectives of the Convention on the Safety of United Nations and Associated Personnel. The definition of aggression contained in the draft code had substantially weakened the code. By focusing exclusively on the role of the individual, the draft code had implied that crimes of aggression perpetrated by States would go unpunished.

SAMIA LADGHAM (Tunisia) said terrorism should have been included in the draft code. Many States had supported that idea. Terrorist crimes were crimes against humanity, and there should have been a whole article defining it.

She said the penalties for those responsible for crimes had been given a very generic treatment in the draft code -- leaving until later decisions on the punishment for each crime. That had occurred even though during the Commission's meetings States had discussed the possibility of giving a minimum and maximum penalty to each crime. Furthermore, three possibilities had been discussed -- that the penalties be decided by each State, the Judge or by a list of penalties for each crime. She re-emphasized the strong link between the draft code and the international criminal court and called for the draft code to be incorporated into the court's statute.

JAN VARSO (Slovak Republic) said many crimes had not been included in the draft code, despite the support of States for doing so. Illegal drug trafficking, for example, had not been included.

Great attention should be given to the factors determining national or international jurisdiction, he went on. However, the location where the crimes had been committed should be considered. Furthermore, it was of great importance that the court and judges be familiar with the location where the crime was committed. For those reasons, the priority given to national or international courts was not the main consideration. Rather, the crime must be dealt with in the fairest and most efficient manner.

NARAYANA SWAMY (India) said the crime of international terrorism should be included specifically as a separate category of crime within the draft code. International terrorism had assumed an even greater importance in the

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contemporary world. Also, the crimes of intervention, colonialism and apartheid remained important. They could still affect the very fabric of mankind and should be included in the draft code. The inclusion of those crimes was essential for seeking wide support and consensus among States. With respect to crimes against humanity, he said that the Commission needed to consider the specific threshold or point at which a violation of human rights principles became a matter of international concern.

SOCORRO FLORES (Mexico) said she did not support the inclusion in the draft code of crimes against United Nations personnel. Such crimes should be dealt with by States. In addition, the penalties for those committing crimes needed to be more specific in the draft. Furthermore, the crime of aggression should not merely be mentioned in the draft, but should be thoroughly defined. The draft code should be sent to the General Assembly, with a view to incorporating it in the statute of the international criminal court.

JUNG-GUM CHUNG (Republic of Korea) said that the threat of aggression was not covered in the final draft code, even though a threat of aggression backed by action, such as the massing of troops along the border of a neighbouring State, was just as serious as an act of aggression. There was nothing "nebulous" about that concept of the threat of aggression, as described by the Commission in its commentary. States should pursue a world where all acts of aggression, including threats of aggression, were prohibited. Acts of aggression constituted one of the most serious and heinous crimes, because they denied a State's very existence and inflicted tremendous suffering upon innocent people.

ALAN BAKER (Israel) said the draft code should be adopted as a declaration of the General Assembly, so that it would encourage the widest possible acceptance. His Government believed that, with regard to the punishment for an individual responsible for a crime against the peace and security of mankind, the question remained whether guidelines should be included for the legal system in which persons would be tried -- with a view to achieving uniformity in such spheres.

With regard to defences, he said, if the draft code was intended to set out precise definitions of the crimes themselves, the defences available to individuals charged with such crimes needed to be dealt with in some detail. In addition, as long as "the definition of the international crime of aggression -- albeit by States -- continues to be elusive, the question of individual criminal responsibility for such a crime cannot, logically, be treated separately, as if it were an algebraic equation", he emphasized. The crime of aggression and its components needed to be well defined in the draft code.

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Finally, he wondered whether the crimes on United Nations and associated personnel had any place in the draft code, especially in view of the relatively new Convention on the Safety of United Nations and Associated Personnel, which was adopted in 1994.

CARLOS CRISOSTOMO (Chile) said that inclusion of crimes against United Nations and associated personnel should also include crimes against the International Committee of the Red Cross (ICRC). The organization had been the victim of particularly serious crimes as it carried out its noble mission. Also, the Commission had made an important distinction between the term aggression and the crime of aggression.

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