STATUTE OF PROPOSED INTERNATIONAL CRIMINAL COURT SHOULD BE BASED ON STATE SOVEREIGNTY PRINCIPLES, LEGAL COMMITTEE IS TOLD

22 October 1997

Press Release
GA/L/3045

STATUTE OF PROPOSED INTERNATIONAL CRIMINAL COURT SHOULD BE BASED ON STATE SOVEREIGNTY PRINCIPLES, LEGAL COMMITTEE IS TOLD

19971022 Croatia Stresses Primacy of National Jurisdictions; Others Take Different Views as Debate Continues on Creation of New Body

The future international criminal court should not supersede national jurisdictions and its statute should be primarily based on the principles of State sovereignty, said the representative of Croatia this morning as the Sixth Committee (Legal) continued its discussion on the establishment of the court.

The Croatian representative said the court's primary responsibility should be to prevent violations of international law and the court should be resorted to only when national judicial systems were unavailable or unable to provide due process of law. He also said that, to achieve universal acceptance, the court's statute should reflect all major legal systems. The statue should reflect basic principles of international law and the court should function within the existing world legal order.

The representative of Iran also said the court should be resorted to in limited situations where domestic trial procedures were not available or ineffective. The court should avoid unnecessary interference where an effective national judicial system existed.

The representative of Jordan warned that respecting national jurisdictions should not compromise the court's authority. Safeguards for those jurisdictions should be limited.

Statements were also made by the representatives of Austria, Finland, Sweden, Liechtenstein, Viet Nam, Indonesia and Lebanon.

The Committee will meet again at 10 a.m. tomorrow, 23 October, to continue consideration of the establishment of the international criminal court.

Committee Work Program

The Sixth Committee (Legal) met this morning to continue its discussion on the establishment of an international criminal court. For background information, see Press Release GA/L/3044 issued 21 October.

Statements

GERHARD HAFNER (Austria) said equilibrium must be established between traditional and new forms of criminal jurisdiction. Although the line between the two must be fine, it must also be firm and stable. He supported the document drafted by the Preparatory Committee dealing with that matter. The document was complex and could be improved, but it was a basis for future work.

The court's prosecutor would have to play a decisive role in the activities of the future court, he continued. At the current juncture, it was not clear whether the court would remain an organ of the States or would become an instrument of mankind, committed only to the protection of humanity against heinous crimes. The ideal would be a court free from political interference by States. However, he recognized that a prosecutor with such autonomy could hinder the acceptability of the court. A particular chamber should be established to control the autonomy of the prosecutor. That chamber could, should the need arise, have power to offset the discretion granted the prosecutor.

MARJA LEHTO (Finland) said that, as a prerequisite for the success of the remaining work, delegations should preserve the habit of hard work and the spirit of cooperation characteristic of earlier sessions of the Preparatory Committee. Delegations should avoid the temptation of overloading the court's statute with too much detail. The direction of the Preparatory Committee's work should be towards clear and balanced basic rules, instead of multiplication of specifications that could be elaborated at a later stage.

She said that the Preparatory Committee should also reserve time for the consideration and finalization of the rules of procedure of the diplomatic conference. Those rules should address, among other things, the question of participation in the negotiations and drafting. All committees and working groups of the diplomatic conference should be open-ended, to ensure transparency of the proceedings. She was confident that the Rome conference would successfully accomplish its mandate and adopt a convention on the establishment of the international criminal court.

PRINCE ZEID RA'AD ZEID AL-HUSSEIN (Jordan) said the Rome diplomatic conference on the establishment of the international criminal court would be an opportunity to prove that a credible juridical deterrent to those who contemplated genocide or other serious crimes could be forged. If that

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deterrence failed, the court would not only reveal the truth about the guilty parties, but would also afford some measure of justice to the victims.

While it was essential that the Preparatory Committee on the court reach a broad consensus on ways in which the court would complement respective national courts, it was important not to overbuild the safeguards designed to protect those State jurisdictions. Having too many safeguards would serve only to make it so time-consuming and difficult for a relevant State party to file a complaint, that the only realistic alternative would be for that State to proceed through the Security Council. That would compromise, inadvertently, the delicate balance being sought between the independence of the court and the established responsibilities of the Council.

PER SALAND (Sweden) said the international community must find innovative compromises to bridge the gaps between different legal systems. Compromises had been effective in dealing with issues such as personal criminal responsibility in the working group on the general principles of criminal law and it would be helpful in other procedural questions. He referred to "very promising compromise proposals" put forward by Singapore on the question of the Security Council's power to block the Court from taking action. He said American ideas on making State parties' complaints similar in nature to the referrals of the Council merited further study as did French ideas about the procedural handling of the admissibility of evidence. He expressed gratitude for Germany's efforts on the question of the definition of aggression.

He said another factor which should be beneficial in overcoming the hurdles was the very broad majority which existed for the court's jurisdiction to comprise only the three or four so-called hard core crimes. The growing support for inherent jurisdiction should be viewed against that backdrop.

Another positive tendency was the growing agreement that the statute should not be overburdened by details, he said. Instead, much could be included in the rules of procedure and evidence, and those rules need not be finalized at the current stage.

CHRISTIAN WENAWESER (Liechtenstein) said the jurisdiction of the international criminal court, at least at its initial stage, should be limited to the core crimes of genocide, crimes against humanity and war crimes. That short list of crimes should also ensure that all States accept inherent jurisdiction of the court over those crimes when becoming party to the statute.

Of particular importance to his country, he said, was the participation of non-governmental organizations and small States in the diplomatic conference on the court scheduled for Rome in 1998. Non-governmental organizations had been a crucial element for creating the momentum and political will for establishing the court. Also, a large number of small

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countries attached particular importance to the establishment of the court because they relied on the observance and development of international law. The Sixth Committee should make it very clear that the diplomatic conference enabled small countries and non-governmental organizations to continue to play a role and participate in the establishment of the court.

PHAM TRUONG GIANG (Viet Nam) said the jurisdiction of the international criminal court should not be higher than that of a State, nor should it replace national jurisdiction. The principle of the primacy of national jurisdiction should be maintained. In keeping with that principle, the future court could initiate procedures only when national jurisdiction had been exhausted. The court's independence was crucial in ensuring its effectiveness. Another important issue was the sovereignty of States and the definition of core crimes. The proposed provisions to regulate the relations between the Security Council and the future court needed more study, he said.

ARIZAL EFFENDI (Indonesia) said the discussions in the Preparatory Committee on the establishment of an international criminal court and in the Working Groups had enabled the achievement of understanding of the complex issues involved. Several important issues, however, warranted further in- depth consideration with a view to bridging diverse viewpoints and concerns. The diplomatic conference scheduled for Rome in 1998 should therefore further consensus on those major issues, particularly on the definition of crimes, the principle of complementarity, jurisdiction, the role of the Security Council, and the trigger mechanism for initiating court proceedings.

IVAN SIMONOVIC (Croatia) said an international criminal court should contain precise provisions on ways in which it complements national jurisdictions. These provisions should be primarily based on the principle of State sovereignty, a fundamental principle of international law which was embodied in the Charter of the United Nations. The court's primary responsibility should be to prevent violations of international law and punish perpetrators of crimes. The court should be resorted to only when national systems were unavailable or unable to provide due process of law.

In order to achieve the universal acceptance of the court, he said, its statute had to reflect all major legal systems. Legal concepts and rules taken from those legal systems must be harmonized with existing international law so as to avoid attempts to apply certain concepts that were incompatible with international law. The statue should reflect basic principles of international law and the court should function within the existing world legal order. The more compatible it was with established international law, the more likely were its prospects for success. The provisions of the court's statute also had to be clear and unambiguous to all lawyers, whichever legal systems they came from.

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SAEID MIRZAEI YENGEJEH (Iran) said that a narrow scope of jurisdiction for the court would, at the initial stage, facilitate universal acceptance of its statute and its early entry into force. Iran favoured the inclusion in the statute of the crime of genocide, aggression, serious violation of the laws and customs applicable in an international armed conflict, and grave breaches of the four Geneva Conventions of 12 August 1949. Resort to the future court should be limited to situations where domestic trial procedures were not available or ineffective. The court should avoid unnecessary interference where an effective national judicial system existed.

More discussion was required on the question of the relationship between the court and the Security Council. He said the responsibility of the Council to determine the commission of an act of aggression should in no way undermine the court's role as a judicial body. In specific situations, the court might be in a better position to render judgement on cases related to an act of aggression. Its statute should provide a clear provision empowering the court to render a judgement in cases of commission of an act of aggression independently, should the Security Council fail to fulfil its mandate within a specified period. Furthermore, he said, the court should also be able to adjudicate independently and free from any political influence in cases concerning the responsibility of an individual in the commission of an act of aggression.

HICHAM HAMDAN (Lebanon) said the Sixth Committee should ensure the full participation of developing countries and specialized non-governmental organizations in the work of the Preparatory Conference and the diplomatic conference. The future court should not interfere in the affairs of small States. It should be independent and its effectiveness guaranteed. Lebanon supported the extension of the court's jurisdiction to cover aggression. Its statute should be reviewed periodically and provision made for that purpose.

He said there should not be parallel meetings during the forthcoming sessions of the Preparatory Committee and the diplomatic conference, so that the least developed countries could participate fully in the main events.

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