PREPARATORY COMMITTEE ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT TO MEET AT HEADQUARTERS, 11 - 21 FEBRUARY
Press Release
L/2819
PREPARATORY COMMITTEE ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT TO MEET AT HEADQUARTERS, 11 - 21 FEBRUARY
19970207 Background Release The search for a balance between the authority of an international criminal court and the powers of sovereign national courts is expected to be among the topics of discussion as the Preparatory Committee on the Establishment of an International Criminal Court begins its third session at Headquarters on Tuesday, 11 February.Also high on the agenda during the two-week session will be types of crimes over which the court would have jurisdiction and the relationship between the legal authority of the proposed court and the political authority of the Security Council.
The Preparatory Committee is expected to continue its consideration of several issues associated with the draft statute, including the following: the principles of criminal law and penalties; the organization of the court; the principle of complementarity; a "trigger" mechanism for initiating prosecutions; the composition, administration and financing of the court; general principles of international law; procedural questions; judicial cooperation and enforcement.
As it resumes its deliberations, the Preparatory Committee will have before it a report (document A/51/22) summarizing the proceedings of its first and second sessions (Volume I) and a compilation of written proposals (Volume II) for amendments to the court's draft statute submitted by delegations or prepared by the Chairman. It will also have before it consolidated texts prepared by informal working groups.
The Preparatory Committee's report was first considered by the Assembly's Sixth Committee (Legal) and led to the adoption of resolution 51/207, which reaffirmed the Preparatory Committee's mandate and set the dates for its forthcoming meetings to complete a draft convention for submission to a diplomatic conference of plenipotentiaries to be held in 1998, with a view to finalizing and adopting the convention. The Secretary-General was asked to establish a special fund for the participation of the least developed countries in the work of the Preparatory Committee and of the conference, and the Assembly urged the participation in the Preparatory Committee by the largest number of States, so as to promote universal support for an international criminal court.
According to the report on the Committee's work so far, deliberations focused on a wide range of substantive issues, including the relationship between the court and the United Nations, and its composition and administration. The Committee considered questions concerning the scope of the court's jurisdiction and the definition of crimes, triggering mechanisms for activating the role of the prosecutor, and complementarity between the court and national authorities, including national courts. It also considered general principles of criminal law as they would apply to the court, as well as procedural questions, the rights of the accused and the elements of a fair trial. It also reviewed issues relating to appeal and review, penalties, cooperation between States and the court and questions relating to international cooperation and judicial assistance.
According to the report, there was general support in the Preparatory Committee for the court to be an independent judicial institution established by a multilateral treaty. While some delegations felt the court should sit on a continuous basis, others said it should do so only when a complaint was filed. A close relationship between the court and the United Nations was considered essential to its universality and standing. Possible sources of financing for the court might include the United Nations regular budget or contributions by States based on the United Nations scale of assessments or another to be determined.
The report says there was broad support for an 18-judge court, although other numbers were also suggested. While there was widespread support for nine-year, non-renewable terms, in order to promote the impartiality and independence of the judges, the idea of a shorter, renewable term was also advanced. Since the court was to be universal in character, it was considered important that its judges be elected on the basis of equitable geographical representation. It was also emphasized that the Court's composition ensure a gender balance, although the view was also expressed that there should be no quotas of any kind.
There was general agreement on the importance of limiting the court's jurisdiction to the most serious crimes of concern to the international community as a whole, so as to avoid trivializing its role and functions and interfering with the jurisdiction of national courts, the report states. Such crimes include genocide, violations of the laws and customs applicable in armed conflict, and crimes against humanity. The latter might also include murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial or religious grounds, and other inhumane offences.
Some delegations held the view that such crimes as international terrorism, illicit drug trafficking and attacks against United Nations and associated personnel should be included in the list of offences to be prosecuted by the court under the category of treaty-based crimes. There was
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general agreement that the crimes within the jurisdiction of the court should be defined with the clarity, precision and specificity required for criminal law.
The report indicates that there was division over whether the court should enjoy "inherent jurisdiction" with respect to certain offences. The view was expressed that such jurisdiction was a contradiction in terms, since the court's jurisdiction would arise out of the instruments by which it was created. While some held that the court's inherent jurisdiction should not be limited to genocide but extend to all the core crimes, others had reservations about the court having inherent jurisdiction over any crime.
According to the report, the Committee's consideration of trigger mechanisms touched on a number of issues. Those included the question of acceptance of the court's jurisdiction, State consent requirements and the conditions for the exercise of jurisdiction. With respect to who could trigger the system, the discussion focused on the possible roles of the Security Council, the right of States to lodge complaints and the role of the prosecutor. On the issue of complementarity, it was generally agreed that a proper balance between the court and national authorities, including national courts, was crucial if the statute was to be acceptable to a large number of States. Different views were expressed on how, where and to what extent complementarity should be reflected in the statute.
A detailed summary of the second session of the Preparatory Committee may be found in Press Release L/2813 of 30 August 1996; a summary of the first session may be found in Press Release L/2787 of 12 April 1996.
Draft Statute
In its original format, the 60-article draft statute prepared by the International Law Commission, which was contained in the Commission's report on its forty-sixth session (document A/49/10), details the establishment of the court; its relationship to the United Nations; composition and administration; jurisdiction and applicable law; investigation and commencement of prosecution; trial; appeal and review; international cooperation and judicial assistance; and enforcement.
It provides that the court may enter into a relationship with the United Nations, either by becoming a part of the organic structure of the Organization or could be set up by a treaty. According to the draft statute, the court can only operate effectively if brought into close relationship with the United Nations, both for administrative purposes and because part of its jurisdiction would be consequential upon decisions by the Security Council.
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The draft contemplates two categories of crime -- those under general international law such as genocide, aggression, serious violations of the laws and customs applicable in armed conflict and crimes against humanity; and those crimes covered by treaty provisions.
According to the draft statute, the court's jurisdiction will apply when a State has custody of an accused person (either because such a State had jurisdiction over the crime or because it had received an extradition request relating to it), or when the crime was committed on its territory. A State could accept the jurisdiction of the court either by a declaration of general application or it could be party to the Statute by a declaration lodged with the depository or, at a later time, with the registrar. A declaration might be made for a specific or unspecified period.
It also provides that the court should have jurisdiction over crimes referred to it by the Security Council, acting under Chapter VII of the United Nations Charter. A complaint related to an act of aggression cannot be brought unless the Council determines that a State has committed such an act. The Council would decide if a prosecution, arising from a situation which it was dealing with under Chapter VII of the Charter, could begin.
Under the terms of the draft statute, the Council would not normally refer a "case" against individuals to the court, but would refer a "matter" or situation to which Chapter VII of the Charter applied. It would be the prosecutor's responsibility to determine which individuals would be charged.
Background on International Criminal Court
The idea of a standing international court to prosecute war crimes, crimes against humanity, genocide and aggression was first contemplated at the United Nations in the context of the 1948 adoption of the Convention on the Prevention and Punishment of the Crime of Genocide. That treaty states that genocide, "whether committed in time of peace or in time of war", is a crime under international law and should be punished by a States tribunal or by an "international penal tribunal".
In the 1950s the International Law Commission was mandated to codify the principles of international law recognized in the Charter of the Nuremberg Tribunal and its judgement, but geo-political confrontation effectively forestalled further development. Progress towards the establishment of a criminal court was renewed in 1992 when the General Assembly, by its resolution 47/33, directed the International Law Commission to elaborate a draft statute for the court. The Assembly also requested Governments to comment on the Commission's draft code of crimes against the peace and security of mankind, which had sought to define the types of crimes that an international court could prosecute. Momentum was further stimulated by the establishment of ad hoc war international criminal tribunals for the former
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Yugoslavia in 1993, and for Rwanda in 1994, which provided practical experience from which the Preparatory Committee could benefit.
Following the development of the proposed court's draft statute by the International Law Commission, the General Assembly on 9 December 1994, by its resolution 49/53, decided to establish an Ad Hoc Committee, open to all Member States or members of specialized agencies, to review the major substantive and administrative issues arising out of the draft statute and, in the light of that review, to consider arrangements for the convening of an international conference of plenipotentiaries.
After meeting for four weeks in two sessions in 1995 (from 3 to 13 April and from 14 to 25 August), the Ad Hoc Committee reported that the participating States still had different views on the major substantive and administrative issues. It therefore decided that those issues could be addressed most effectively by combining further discussions with the drafting of a consolidated text of a convention for the court as a next step towards consideration by the conference of plenipotentiaries.
In its report to the fiftieth session of the General Assembly (document A/50/22), the Ad Hoc Committee recommended that the Assembly organize future work towards an early completion of such a draft convention. The Assembly established the Preparatory Committee by its resolution 50/46, which stated that its work would be based on the draft statute prepared by the Commission but should take into account the report of the Ad Hoc Committee on the establishment of the court. It should also take into account the written comments submitted by States to the Secretary-General on the draft statute as well as contributions of relevant organizations.
Officers; Membership
The Chairman of the Preparatory Committee is Adriaan Bos (Netherlands). Its Vice-Chairmen are Cherif Bassiouni (Egypt), Silvia A. Fernandez de Gurmendi (Argentina), and Marek Madej (Poland). Jun Yoshida (Japan) is the Rapporteur.
The Preparatory Committee is open to all Member States of the United Nations, members of specialized agencies and members of the International Atomic Energy Agency.
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