PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT CONCLUDES THIRD SESSION

21 February 1997

Press Release
L/2824

PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT CONCLUDES THIRD SESSION

19970221 Recommends Italy Host 1998 Conference on International Court; Session's Work Focused on Definition of Crimes; Principles of Criminal Law

The Preparatory Committee on the Establishment of an International Criminal Court this afternoon recommended that the General Assembly accept the proposal of Italy to host in June 1998 a plenipotentiary conference on the creation of the court. It took that action as it completed the work of its third session.

The recommendation regarding the proposal of Italy was made pursuant to General Assembly resolution 51/207 of 17 December 1996. The Preparatory Committee recommended that the Assembly accept the proposal after consideration by its Committee on Conferences, and on the basis of the "usual practice" concerning the funding of events of that kind taking place outside United Nations Headquarters or other United Nations seats.

The Preparatory Committee also took note of the reports of its working groups on the definition of crimes and on the general principles of criminal law and penalties, in which most of the work of the third session was concentrated.

Committee Chairman Adriaan Bos (Netherlands) said that prior to the diplomatic conference on the establishment of the court, the Committee would need to discuss: the establishment of the court; composition and administration of the Court; its jurisdiction; general principles of criminal law; investigation and prosecution; trial, appeal and review; international cooperation and judicial assistance; and penalties and enforcement. He added that most of the recommendations of the working groups constituted considerable streamlining and shortening of the previous text.

At its next two-week session, scheduled for August, the work of the Preparatory Committee is expected to concentrate in two working groups on: complementarity and the "trigger mechanism"; and on procedures.

The Preparatory Committee is developing a draft statute on the creation of an International Criminal Court. In its original format, the 60-article draft statute prepared by the International Law Commission detailed 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.

The Preparatory Committee also today observed a moment of silence in memory of Deng Xiaoping of China.

The representatives of China, Italy, India, France, Austria, Germany, Israel, Jamaica, Egypt, Ireland, Portugal and Sweden spoke this afternoon.

Programme of Work for Current Session

During the current session, the work of the Preparatory Committee was concentrated in two working groups on the definition of crimes to be adjudicated by the court and on general principles of criminal law and penalties.

The Preparatory Committee's working group on the definition of crimes produced draft texts submitted by the Chairman (document A/AC.249/1997/WG.1/CRP 1-6) on genocide, war crimes, aggression, crimes against humanity and terrorism. It recommended the texts defining genocide and crimes against humanity be included in the draft consolidated text of a convention for an International Criminal Court. It recommended that the texts on war crimes, aggression and terrorism be reconsidered at a future date.

Regarding genocide, the Preparatory Committee defined the term as meaning any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group: killing; causing serious bodily or mental harm; inflicting conditions of life calculated to bring about physical destruction; and imposing measures intended to prevent births and forcibly transferring children.

The Preparatory Committee also developed bracketed text (indicating that final wording must be agreed to at a later date) by which it would decide that the following acts should be punishable under the statute: genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; and complicity in genocide.

The Preparatory Committee defined crimes against humanity as any of the following crimes when committed on a systematic basis: murder; extermination; enslavement; deportation or forcible transfer of population; torture; rape or

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other sexual abuse or enforced prostitution; persecution on political, racial, national, ethnic, cultural or religious grounds; and enforced disappearance.

Within the context of crimes against humanity, extermination is defined as infliction of conditions of life calculated to bring about the destruction of part of a population. Bracketed text would define deportation and forcible transfer as the movement of persons from one area to another for a purpose contrary to international law; torture as the intentional infliction of mental or physical pain or suffering (except pain and suffering inherent in, or incidental to, lawful sanctions in conformity with international law); and persecution as the wilful and severe deprivation of fundamental rights contrary to international law. It would define enforced disappearance as arrest, detention or abduction by government officials or private persons acting with the support of governments, followed by a refusal to disclose the arrested person's whereabouts in such a manner as to place them outside the protection of the law.

The Preparatory Committee defined war crimes as grave breaches of the Geneva Conventions of 12 August 1949. Specifically they would include the following acts directed against persons or property protected under the provisions of the relevant Geneva Convention: wilful killing; torture or inhuman treatment, including biological experiments; extensive destruction of property not justified by military necessity; compelling a prisoner of war or a civilian to serve in the forces of a hostile power; wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; unlawful deportation, transfer or unlawful confinement of a civilian and the taking of hostages.

Other acts committed in violation of international humanitarian law which would constitute war crimes include: attacking civilian populations; attacking works or installations in the knowledge that such attacks will cause excessive loss of life or injury to civilians; and the perfidious use of the red cross, red crescent, red lion and sun, or of other protective signs recognized under international law.

Other acts which would constitute war crimes when committed wilfully and in violation of international humanitarian law include the transfer by an occupying power of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside the territory; unjustifiable delay in the repatriation of prisoners of war or civilians; practices of apartheid and other degrading practices based on racial discrimination.

Other serious violations of international law applicable in international armed conflict that would constitute war crimes include: killing or treacherously wounding individuals belonging to the hostile nation or army; killing or wounding an enemy who has laid down his arms and has no means of

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defence; compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service prior to commencement of the war; employing poison or poisoned weapons; using asphyxiating or poisonous gases; using bullets which expand or flatten easily in the human body; using bacteriological weapons; and using chemical weapons.

Other war crimes would include: intentionally attacking buildings dedicated to religion, art, science, charity, historic monuments and hospitals, unless they are used to support military effort; intentionally attacking the civilian population; outrages upon personal dignity, in particular rape; using the presence of civilians to render areas that would otherwise be legitimate military objectives immune from military operations.

The working group agreed that certain serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949 in the case of armed conflicts not of an international character would constitute war crimes, including: the taking of hostages; and the passing of sentences and the carrying out of executions without previous judgement being pronounced by regularly constituted courts.

Consolidated text within brackets would define as war crimes various other crimes committed in international and/or intranational conflicts: rape and enforced prostitution; attacking non-defended localities; attacking persons known to be hors de combat (out of action or disabled); killing or wounding those who have laid down their weapons; attacking cultural sites and places of worship; declaring that no quarter will be given (that there will be no survivors following an attack); destruction of property not required by military necessity; causing wilful environmental damage; starving civilians; recruiting children under 15 into the military; collective punishment; terrorism; slavery; pillaging; perfidy and the violation of an armistice.

The draft text on aggression, all of which is within brackets, would define the crime as the planning, preparing, ordering, initiating or carrying out of actions by one State against the territorial integrity of another. By the draft text, aggression would comprise the invasion by the armed forces of a State of the territory of another State; bombardment by the armed forces of a State against the territory of another; and the blockade of the ports or coasts of a State by the armed forces of another State.

By other bracketed text, aggression would comprise an attack by the armed forces of a State on the land, air or sea forces or marine and air fleets of another; the use of the armed forces of one State within the territory of another State with the agreement of the receiving State in contravention of the conditions provided for in the agreement; the action of a State in allowing its territory to be used by another State for perpetrating

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an act of aggression against a third State; and the use of armed bands, irregulars or mercenaries to carry out acts of armed force against another State.

The entirety of the working group's draft consolidated text on terrorism is also within brackets. By that text, terrorism would be defined as undertaking, organizing, sponsoring, ordering, facilitating, financing, encouraging or tolerating acts of violence against another State directed at persons or property so as to create terror, fear or insecurity.

That text would include as terrorist offenses crimes in violation of the following: Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; Convention for the Suppression of Unlawful Seizure of Aircraft; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; International Convention against the Taking of Hostages; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf.

The text would also define as terrorism murder, kidnapping or attacks upon the liberty of United Nations and associated personnel; and violent attacks upon their official premises and private accommodations. The article would not apply to actions undertaken in the course of a United Nations operation authorized by the Security Council as a Chapter VII enforcement action.

The Preparatory Committee's working group on general principles of criminal law and penalties produced draft composite texts submitted by the Chairman (document A/AC.249/1997/WG.2/CRP1-4) on the legal principle of nullum crimen sine lege (no crime without law), individual criminal responsibility, personal jurisdiction, command responsibility, irrelevance of official position and the mental elements of crime -- mens rea. Those general principles would be incorporated into the criminal court draft statute to be presented to the plenipotentiary conference establishing the criminal court.

Regarding nullum crimen sine lege, the Preparatory Committee provided that a person would not be held criminally liable unless the conduct in question constituted a crime that was defined in the Statute. Apart from the Statute, however, the Preparatory Committee agreed that the principle would in no way affect the character of such conduct as being crimes under international law. In addition, the Committee provided that a person could not be held criminally responsible under the Statute for any conduct prior to the Statute being in force (the principle of non-retroactivity).

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The Preparatory Committee also discussed the types of conduct for which an individual would be held criminally responsible and liable for punishment. One view held that the article should only refer to the way in which the person took part in the commission of a crime, regardless of whether it dealt with a completed crime or an attempted crime.

The Court would also have jurisdiction over natural persons under the Statute. The Preparatory Committee provided that a person who committed a crime under the Statute would be individually responsible and liable for punishment. However, individual criminal responsibility would not affect the responsibility of States under present international law. In addition, the Preparatory Committee also discussed the limits of civil liability which would be explored further in connection with penalties, forfeiture and compensation to victims of crime.

In the Committee's discussion of command responsibility, most delegations were in favour of extending the principle of command responsibility to any superior. One delegation held the view that the principle of command responsibility should be dealt with in connection with the definitions of the crimes. The Preparatory Committee also considered the question of whether command responsibility was simply another form of criminal responsibility or a separate principle that held commanders responsible for the acts of their subordinates.

The Statute would be applied to all persons without any discrimination whatsoever and, in no case would exempt a person from his criminal responsibility. Also, the Preparatory Committee provided that any immunities or special procedural rules attached to the official capacity of a person would not prevent the Court from exercising its jurisdiction.

The Preparatory Committee also provided that a person was only criminally responsible and liable for punishment for a crime under the Statute if the physical elements were committed with intent and knowledge. Intent was where the person had the means to engage in the act and meant to cause that consequence or was aware that it would occur in the ordinary course of events. Knowledge was an awareness that a circumstance existed or that a consequence would occur.

The Preparatory Committee provided two alternative texts on the mistake of fact or of law. The first text provided that an unavoidable mistake of fact would be an acceptable defence as long as the mistake was consistent with the nature of the crime. The second alternative text provided that a mistake of fact would be a defence only if it negated the mental element of the crime. There were, however, divergent views on the texts in the working group and some delegations believed that mistake of fact was unnecessary because it was already covered by mens rea.

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A person would be held criminally responsible and liable for punishment for an omission, an act, or a combination of the two, the Preparatory Committee provided. There was also discussion of a provision on causation that some delegations thought was unnecessary.

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.

After many years in which geo-political confrontation effectively forestalled further development of the court, progress 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. Momentum was further stimulated by the establishment of international criminal tribunals for the former 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.

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.

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). Masataka Okano (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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