PRESS BRIEFING ON INTERNATIONAL COURT PREPARATORY COMMITTEE

Press Briefing

PRESS BRIEFING ON INTERNATIONAL COURT PREPARATORY COMMITTEE

The Chairman of the Preparatory Committee for the Establishment of an International Criminal Court, Adriaan Bos (Netherlands), and Vice-Chairman Silvia A. Fernandez de Gurmendi (Argentina), briefed correspondents on the progress of the Committee's discussions, in a press briefing yesterday afternoon at United Nations Headquarters. Mr. Bos also serves as Chairman of the Committee's Working Group on Complementarity and Trigger Mechanism, and Ms. de Gurmendi is Chairperson of its Working Group on Procedural Matters.

The creation of an international criminal court next year would translate the vision of the genocide Convention into reality and brought with it the promise of universal justice, Mr. Bos said. It was intended to be a permanent judicial body with global jurisdiction, able to try individuals for such grave offences as genocide, crimes against humanity, and serious violations of the laws and customs of war. Inclusion of the crime of aggression and other heinous crimes had also been suggested.

The idea for establishment of the court had gained impetus following the creation of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, which had set an important precedent and laid down a practical foundation for the permanent court, Mr. Bos said. Citing the Secretary-General, he called the proposed court "the symbol of our highest hopes for the unity of peace and justice".

In 1996, the General Assembly called for a diplomatic conference in 1998 to finalize the statute for the court, Mr. Bos said. That decision reflected the growing support for its early establishment. The conference would also coincide with the fiftieth anniversary of the adoption by the United Nations of the Convention on the Prevention and Punishment of the Crime of Genocide. The proposed court would bring the vision of that Convention into reality.

During its current session, the Preparatory Committee was addressing critical issues which would have a decisive impact on the effectiveness of the Court. The subject of "complementarity" dealt with the relationship between the court and national jurisdictions. The issue of "trigger mechanisms" would deal with the preconditions for the exercise of jurisdiction and who could "trigger" the court's jurisdiction. The Committee was also discussing principles of criminal procedure, including such questions as the rights of suspects, defendants and victims, as well as witness protection measures.

Many of the important political questions would presumably be resolved at the highest levels of the diplomatic conference, Mr. Bos said. At the present stage, the Committee was doing its best to consolidate as many technical, less political issues as possible.

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Setting a date for the conference had created a real momentum for the Committee's work and the negotiations had taken on a more intense character. Delegates had worked through the night and during weekends to draft proposals for circulation. In addition, a trust fund had been created, which had been made use of by nine least developed countries to facilitate their participation in the Committee.

By the end of the week, the Chairman said he would recommend the adoption of a work programme to cover the remaining subjects to be reviewed during the forthcoming sessions of the Preparatory Committee, set for December 1997 and March 1998. "We will be well prepared for the Rome conference in June 1998", he said.

Was the Chairman's confidence in a successful diplomatic conference realistic, given the serious reservations of some States? a correspondent asked. "I do not know of any Member State opposing the establishment of the international criminal court", Mr. Bos said. Some States were more reluctant to adopt positions beneficial to the court to the detriment of their national jurisdictions. However, no State was opposing the establishment of the Court itself.

Did the Permanent Members of the Security Council support the draft that would allow blocking a case from going to the Court if the Council was considering a Chapter VII issue? a correspondent asked. Mr. Bos said it was his impression that the Permanent Members were very eager to keep their competencies under the Charter, particularly when dealing with the question of aggression -- an area where the Council had special responsibilities. It was necessary to find a solution that would take account of the Council's competence in that area. There were several proposals on the table covering that issue.

Asked if those were compromise proposals, Mr. Bos said they were matters under discussion. If the Security Council decided a given event was a case of aggression, it should be able to use the "trigger" to refer it to the court. However, the question of when and where that determination should take place was still being discussed. "In many cases, the Security Council deals with cases of aggression without explicitly stating that they are an aggression, and so we have to try to find ways and means to overcome that."

Genocide was not necessarily aggression, the correspondent said. Mr. Bos agreed, adding that the four "core" crimes would not be dealt with in the same manner. It was much easier to accept genocide within the jurisdiction of the court because the genocide Convention itself referred to the possibility of creating an international criminal court. [Note: The four core crimes being considered by the Preparatory Committee are crimes against humanity, genocide, war crimes and aggression.]

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A correspondent asked about the powers of the court's prosecutor. Mr. Bos said that part of the role and function of the prosecutor would be discussed next year, as the Committee had not yet touched upon certain organizational aspects. Some discussion had focused on whether the prosecutor might be able independently to initiate, or trigger, court proceedings without the consent of States.

Asked how much remained to be discussed with respect to the court's statute, Ms. Bos said the General Assembly had allotted a total of nine weeks of preparatory work for the Committee's discussions. Two weeks of discussion had taken place in February, the August session was due to last two weeks, and in December, the Committee would take two weeks to review other procedural questions, as well as the subject of judicial cooperation between States and the proposed court. During its April 1998 session, the Committee would discuss organizational questions, financial matters, the relationship between the court and the United Nations, and any other pending questions.

Asked if conference would decide on whether or not to establish the court, Mr. Box said the decision to create the court had already been taken in principle by a United Nations resolution and by the creation of, first, an Ad Hoc Committee and later the Preparatory Committee to do the necessary work for the establishment of the proposed International Criminal Court. But the final decision would indeed be taken in Rome.

Had there been progress on the complementarity issue? a correspondent asked. The issue was part of present discussion and this morning a new text had been distributed, Mr. Bos said. It was a complex issue as well as politically sensitive. It was necessary to formulate the circumstances describing when and how the International Criminal Court would act in States in which it was impossible to put offenders of core crimes on trial. In any case, the text would include many options for that decision at the diplomatic conference.

Had the notion of double jeopardy come up? a correspondent asked. Ms. Fernandez said the question had been discussed, mainly in the framework of the general principles of criminal law. But it was also related to the questions of complementarity, in the sense of determining if and when the International Criminal Court could intervene, when a decision at the national level had already been taken. For example, a case of genocide could be tried as an ordinary crime such as murder, and be prosecuted as such, she said. It was necessary to determine when the court could intervene; in general, of course, double jeopardy should not exist, but the issue, as a procedural matter, needed to be studied very carefully, she concluded.

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Given the variety of penalties in different countries for different crimes, how was the Court going to penalize? Mr. Bos said it had been discussed in a general manner and would be discussed more in depth in the December session. The issue, which was a very important one, involved both the different weight of the penalties assigned to crimes by different States, and also the issue of the death penalty, which existed in some States while others were very much opposed to it.

Which issues, such as the subject of complementarity, would be left to the diplomatic conference? Did the Committee intend to resolve certain issues by Friday (the last day of the present session)? Mr. Bos told the correspondents it was the Committee's intention, as far as possible, to not discuss the issues again, except in the diplomatic conference, and to come up with a text for that conference.

If the position of the group of States that wanted government approval every step of the way for the trigger mechanism would be reflected in the text, how could that disagreement ever be bridged? a correspondent asked. Would the court, in practice, be a "criminal" version of the International Court of Justice? Mr. Bos said he did not wish to speculate, but that if there was a situation where "core" crimes had been committed, and the State concerned would not act, it would not be an impediment to initiate proceedings.

What, specifically, had been agreed upon, apart from the date of the conference? a correspondent asked. Certain texts had been agreed upon, Mr. Bos said, such as the tendency to limit the court's jurisdiction to "core" crimes, though even on that point there was disagreement regarding the core crime of aggression. Other States wished to add other crimes.

Did the texts still include bracketed text? a correspondent asked. Mr. Bos said a comparison between the initial draft and the text indicated the progress. Ms. Fernandez said that the purpose of the diplomatic conference was not a ceremonial act, merely to sign a text that all agreed upon. At present, it was necessary mainly to reduce the options so as to arrive at a shorter text and clarify discussion at the conference itself. Bracketed text was not a problem in itself; the text itself should be consistent, coherent, with some options in brackets, she said.

How long would the conference last? a correspondent asked. Mr. Bos said the General Assembly would make that decision, but he expected it would last five weeks. Which core crimes were likely to be agreed upon as the Court's jurisdiction. Mr. Bos said that it would probably include genocide, crimes against humanity and serious violations of law and customs of war.

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Years ago, there had been high hopes for the International Court of Justice, yet that Court had languished for years due to governments' lack of interest. Were the hopes higher for the International Criminal Court, which in any case would have a higher profile and deal with more colourful crimes? Mr. Bos said he did not share the correspondent's view of the International Court of Justice, nor did he think the International Criminal Court would be "higher" than The Hague. The courts could be compared, but both should be looked at according to their own merits. In the 1930s and 1940s, there had been discussion that criminal matters should be added to the International Court of Justice's jurisdiction. But that course of action had not been pursued; in any case it would be very difficult to modify the United Nations Charter to accommodate such an idea.

Why was that idea scrapped at that time? the correspondent asked. Mr. Bos said international criminal law was not as developed. An international judicial instance was not seen as necessary. In that respect, the world had progressed.

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