UNITED STATES REPRESENTATIVE TELLS LEGAL COMMITTEE INTERNATIONAL CRIMINAL COURT SHOULD NOT BE DIRECT PART OF UNITED NATIONS

23 October 1997

Press Release
GA/L/3046

UNITED STATES REPRESENTATIVE TELLS LEGAL COMMITTEE INTERNATIONAL CRIMINAL COURT SHOULD NOT BE DIRECT PART OF UNITED NATIONS

19971023 Treaty-Based Scheme for Funding is Suggested; Others Take Different View, Proposing Relationship with Security Council

An international criminal court should not be a direct part of, or administratively dependent on, the United Nations, the representative of the United States said this morning as the Sixth Committee (Legal) resumed its consideration of the establishment of the court.

The United States representative said the court would need some oversight mechanisms by States parties, and those should not be intrusive in its independent functioning. As a corollary to that, there should be a treaty-based scheme for funding the court.

On the relationship between the Security Council and the court, he took a view contrary to the comments made by other speakers, asserting that no case should be initiated by the court's prosecutor unless the overall situation pertaining to that case had been referred to the court. If the situation referred by a State party to the court concerned a dispute or situation pertaining to international peace and security which was being dealt with by the Security Council, then the Council should approve the referral of the entire situation to the court.

The representative of Ghana said that while the primary and legitimate role of the Security Council in the maintenance of peace and security must be preserved, that should not be at the expense of the principle of judicial independence of an international criminal court. The political influences of the Council must not be allowed to seep into, and possibly taint, structures established with the objective of dispensing justice.

The representative of Brazil (speaking on behalf of the Rio Group) said the court should not act as a subsidiary organ of the Security Council. It must aim for the highest level of judicial independence. At the same time, there should be an adequate degree of interdependence between the court and the United Nations system as a whole.

Sixth Committee - 1a - Press Release GA/L/3046 13th Meeting (AM) 23 October 1997

The representative of Egypt said that the prosecutor should not be subject to political influences, and must be truly independent to "trigger"proceedings. The prosecutor's office, however, should not be the only body to initiate court proceedings.

Statements were also made by representatives of the Czech Republic, Costa Rica, Mexico, Venezuela, Ukraine, Uganda, Algeria, Jamaica, Chile, Ethiopia, Senegal, Hungary, Norway, Malawi and Japan.

The Committee will meet again at 3 p.m. today to continue its consideration of the establishment of the international criminal court.

Committee Work Programme

The Sixth Committee (Legal) met this morning to resume its consideration of Agenda item 150 on the establishment of an international criminal court. (For background information see Press Release GA/L/3044 of 21 October.)

Statements

IVO JANDA (Czech Republic) said it would be a retrogressive step for the statute of the future international criminal court to be adopted, fifty years after the Nuremberg and Tokyo Tribunals, without the crime of aggression. The issue of aggression should be left to the diplomatic conference to be held in Rome in 1998. The list of principles and their definitions elaborated by the Preparatory Committee should be annexed to the court's statute, which should contain only basic and general provisions.

He said the principle of complementarity should be properly worked out in the statute, for a proper balance to be struck between the court and national authorities. Complementarity should not diminish the responsibility of States to investigate and prosecute criminal cases. The court should be equipped with safeguards against sham national investigations and trials. With regard to international cooperation and judicial assistance to be dealt with by the Preparatory Committee at its December session, the Czech representative said the statute should provide for a rigid obligation by States to comply with the court's requests for assistance. That fundamental rule should not be subject to any exceptions, he said.

ANTONIO DE AGUIAR PATRIOTA (Brazil), speaking on behalf of the Rio Group of South American countries, said the issue of "complementarity" -- the way in which the international criminal court complements national jurisdictions -- was central to the concept of cooperation at the international level for determining individual responsibility for serious crimes. The objective should not be to have the court replace national systems, but to establish a relationship between the two which would contribute to enhancing the credibility and legitimacy of both.

Regarding the court's future jurisdiction, he said its inherent jurisdiction was for the crime of genocide. It had been proposed, however, that the court's jurisdiction would not extend to the present permanent members of the Security Council. That would be inconsistent with the widely shared objective of impartiality. On its general relationship to the Security Council, the court should not act as a subsidiary organ of the Council, and must aim for the highest level of judicial independence. At the same time, there should be an adequate degree of interdependence between the court and the United Nations system as a whole, particularly the Security Council.

FERNANDO BERROCAL SOTO (Costa Rica) said an international criminal court should be a truly independent organ, free from any political interference that

Sixth Committee - 3 - Press Release GA/L/3046 13th Meeting (AM) 23 October 1997

would contaminate its impartiality. The Security Council should not be allowed to veto the consideration of cases by the court. In some exceptional circumstances, however, the need to find practical measures to re-establish international peace and security might require a temporary deferment of the consideration of some cases by the court. Those circumstances should be absolutely exceptional and the power of the Council to prevent the consideration of cases should be limited to a pre-determined period of time.

He said that the Security Council could play a constructive role regarding those situations where the States involved had not accepted the jurisdiction of the Court. In those circumstances, the Council could overcome the lack of agreement by exercising its mandatory powers in accordance with Chapter VII of the Charter. It was necessary to recognize that the Council could legitimately determine that crimes violating international law had been violated.

SOCORRO FLORES (Mexico) said her country welcomed the spirit of cooperation that existed in the work of the Preparatory Committee which was drafting the convention on the international criminal court. Mexico was, however, concerned about the many brackets that still existed in the first draft of the convention. She said the proliferation of small working groups had affected the ability of small delegations to participate fully in the Preparatory Committee's work. Nevertheless, Mexico hoped a consolidated text of the convention would eventually be finalized for adoption by the diplomatic conference in Rome. Her delegation awaited with interest the draft rules of procedure of the conference being prepared by the Secretariat. Mexico trusted that the international criminal court would be fully independent and complement national jurisdiction and thereby help strengthen international law.

MILAGROS BETANCOURT (Venezuela) said the jurisdiction of an international court should be determined by the court itself. The relationship between the court and the Security Council was a matter that needed to be set out clearly. There should be a relationship between the two bodies that would allow the court to maintain its independence and, at the same time, would not undermine the functions of the Security Council in the maintenance of peace and international security.

On the diplomatic conference in Rome in 1998, she said its results should lead to the adoption of an international convention establishing the court. For that conference, clear rules of procedure should be established. In order to ensure that the court was universal, the conference needed the broadest participation of States. There should also be the full participation of other relevant organizations because their input had been crucial to the development of the court so far.

YURIY BOHAIEVS'KY (Ukraine) supported the creation of the court which, he said, should receive broad support from the United Nations membership. It

Sixth Committee - 4 - Press Release GA/L/3046 13th Meeting (AM) 23 October 1997

was therefore important for reasonable solutions to be found for the problems that still remained in drafting the court's statute, particularly such contentious issues as the relationship between the court and the Security Council, the role of the prosecutor and pre-trial chamber and the crime of aggression. The final clauses of the convention should include a substantial number of ratifications as a condition for the convention's entry into force.

The effective functioning of the court, he said, would be determined by its relationship with the Security Council which, being a political body, should not, in any way, interfere with the court's decisions. While having the right to refer cases to the court, the Security Council was expected not to prevent the court from initiating its own prosecution on the basis of facts before it, or as a result of the inability of the Council to discharge effectively its functions under the Charter. Any attempt to subordinate the court to the Council would be incompatible with the principles of judicial independence and impartiality. Ukraine favoured the exclusion of the death penalty from the list of punishments to be imposed by the court. It reiterated its position that the court's budget should be drawn out of contributions by States parties.

BILL RICHARDSON (United States) said that the time had arrived for the creation of an international criminal court that was fair, efficient and effective. The court should serve as a deterrent and a mechanism of accountability. The United States strongly supported the decision to hold a diplomatic conference next year to finish and adopt the statute of the court. To meet that objective, Member States should redouble their efforts to ensure the success of the conference. It was essential that agreement was reached on the basic rules and principles that would guide the court, and which would be critical to its effectiveness.

They should include the fundamentals of the criminal law procedures of the court. The fundamental outlines of procedure, including the important subject of defendants' rights, should be clear before any State was asked or expected to sign on to the court. Rules on the cooperation of States with the court should be clarified and elaborated. Experience with the International Criminal Tribunals for the former Yugoslavia and Rwanda demonstrated that effective rules in that area were sine qua non for the future of an international criminal court.

A common designation and better definition of crimes should also be reached. The court should concern itself with those atrocities which were universally recognized as wrongful and condemned. The court's foundation should be built on wide acceptability and on solid ground.

On the relationship of the Security Council with the court, he said the United States had proposed an alternative procedure that ensured both the court's independence and its practical usefulness. The United States believed

Sixth Committee - 5 - Press Release GA/L/3046 13th Meeting (AM) 23 October 1997

that no case should be initiated by the court's prosecutor unless the overall situation pertaining to that case had been referred to the court.

It should be borne in mind, he said, that the court was not an everyday court of appeal but rather a significant and powerful international mechanism to deal with whole situations of exceptional seriousness and magnitude. If the situation referred by a State party to the court concerned a dispute or situation pertaining to international peace and security which was being dealt with by the Security Council, then the Council should approve the referral of the entire situation to the court. The Charter responsibilities of the Security Council for the maintenance and restoration of international peace and security permitted no alternative to that procedure. He said the proposal mirrored the practice with the International Criminal Tribunals for Rwanda and the former Yugoslavia, which many had pointed to as models of the kind of independent functioning prosecutor which the United States wanted to see for the permanent court.

On the question of the structure and administration of the court, he said the court should not be a direct part of, or administratively dependent on, the United Nations. The court would need some oversight mechanisms by States parties which should not be intrusive in its independent functioning. As a corollary to that, there should be a treaty-based funding scheme for the court.

JULIET D. SEMAMBO KALEMA (Uganda) said an international criminal court should have jurisdiction over the core crimes of genocide, war crimes and crimes against humanity. There was a view that the Security Council should determine when a crime of aggression had been committed. After that determination, however, the court should have the sole responsibility to adjudicate on the individual criminal responsibility, free from any political influence. Also, the Council should not be allowed exclusive power to prevent prosecution and trial by the court.

It should also be emphasized that the statute of the court should guarantee the rights of the accused, she said. The statute should create an environment that would allow cooperation and judicial assistance by Member States in areas such as providing information on witnesses and evidence, arrests and detention, and the surrender of accused persons. Her country would continue to participate in the remaining meetings of the Preparatory Committee on the court and would assist in tackling the remaining issues.

M. AHCENE KERMA (Algeria) said establishment of an international criminal court should avert the need to set up ad hoc tribunals to preside over situations where international law had been violated. Those tribunals had been ineffective in the past and had not provided a satisfactory solution to the question of how to apply international law.

Sixth Committee - 6 - Press Release GA/L/3046 13th Meeting (AM) 23 October 1997

On the court's relationship with the Security Council, he said the court must be independent and impartial. Deferring jurisdiction to the Council would jeopardize the independence of the court and put its power in the hands of a highly political body. On the topic of the crimes that should be covered by the court, he said that its jurisdiction should extend to drug trafficking and terrorism, as well as to core crimes such as genocide. Those crimes were also heinous and posed a threat to international security.

PATRICK ROBINSON (Jamaica) said the issue of complementarity -- ways in which the international criminal court would complement national courts -- could become an unduly dominant and overpowering issue in the work of the Preparatory Committee on the court. The issue could become nothing more than coded language for an approach that resulted in diminishing the powers of the court. The issue was likely to be resolved not through one set of provisions that dealt with complementarity but by balancing provisions of the statute as a whole to make sure they adequately addressed the issue.

On the jurisdiction of the court, he said that, while his country was willing to accept its competence over the core crimes of genocide, crimes against humanity, war crimes and crimes of aggression, there was a possibility that jurisdiction would have adverse effects on State participation in the court's statute. While it was important to ensure that the court's jurisdiction was respected by States, the court must also ensure that fundamental principles, such as sovereignty and territorial integrity, had not been breached.

FRANCISCO ORREGO VICUNA (Chile) said there were three crucial problems that still had to be adequately resolved to ensure a satisfactory outcome of the Rome diplomatic conference. The first was the court's jurisdiction which, he said, should cover crimes identified by contemporary international law. The second major problem related to the complementarity between the court and national tribunals. The court should intervene only in cases where national judicial systems were not available or were manifestly ineffective. The third issue concerned the trigger mechanisms -- factors that would lead to the start of proceedings -- which, he said, should be the function of States. It could also be a power of the office of the court's prosecutor as was being devised. The possibility that the prosecutor might rely on other sources of information should not be ruled out, he said.

On the problems concerning the relationship between the court and the Security Council, he said one solution could be that the court should not decide on cases of specific criminal responsibility while the Council was seized of the broader situation that served as its context. Another option was that the court should proceed independently of the Council and if a conflict of jurisdiction arose, a mechanism such as the advisory opinion of the International Court of Justice could be sought.

Sixth Committee - 7 - Press Release GA/L/3046 13th Meeting (AM) 23 October 1997

WORKIE BRIYE (Ethiopia) said his country viewed the establishment of the court as an important complement to national jurisdictions in protecting humankind against unbridled dictatorship, abuse of human rights and violation of humanitarian law. The court should be complementary to national jurisdictions and not a substitute for them, or with appellate jurisdiction over them. The court's creation was a necessity if gross human rights violations were to be disallowed in situations where there was no viable constitutional order and the central authority to deal with it.

Recent events in Ethiopia demonstrated that, given the necessary material and judicial assistance, a national court could investigate, prosecute and adjudicate complicated crimes connected with large-scale disregard of human dignity. On the work of the Preparatory Committee, he said the definition of the crime of aggression warranted further elaboration. The crime of terrorism had not been given the attention it deserved; his delegation believed that the global dimension of international terrorism and the challenge it posed justified its inclusion in the statute of the court.

On the relationship between the court and the Security Council, Ethiopia believed that it should be well defined and agreed upon, bearing in mind the need to preserve the court's impartiality, efficient functioning, independence and credibility.

IBRA DEGUENE KA (Senegal) said the international criminal court would not only be a powerful deterrent to the commission of universal crimes, but would be a major contribution to the codification and development of international law. It was a moral and historic duty to establish an international court for all those who had suffered from genocide and war crimes.

At the December meeting of the Preparatory Committee on the court, he said, there would be a need to adopt a pragmatic approach to establish specific procedures to deal with the major issues confronting the court. One of the most contentious had been the issue of complementarity. That should not be seen as an obstacle to consensus on the court, but should allow for major advances. Taking account of the diversity of national laws was a factor to be used and harnessed for the betterment of the court.

JACK WILMOT (Ghana) said that while the primary and legitimate role of the Security Council in the maintenance of peace and security must be preserved, that should not be at the expense of the principle of judicial independence of an international criminal court. The political influences of the Council must not be allowed to seep into, and possibly taint, structures established with the objective of dispensing justice. It was of absolute importance that the credibility and independence of the court be maintained in all situations.

Sixth Committee - 8 - Press Release GA/L/3046 13th Meeting (AM) 23 October 1997

On the question of on-site investigations by the court, he said that there was a need for further clarity on the issue. Such clarification should draw a distinction between State cooperation in an investigation taking place in its territory and State supervision of an investigation. The credibility of an on-site investigation depended on the absence of acts which were tantamount to supervision by the State or States where the investigation was being carried out.

GYORGY SZENASI (Hungary) said his country attached importance to the establishment of the international criminal court. He noted that the court would have advantages over the two existing ad hoc Tribunals. It would exercise its jurisdiction without any undue delay which might be caused by the need to create ad hoc tribunals. The court would make use of the special expertise of its permanent staff and would eliminate the need by the Security Council to set up ad hoc tribunals with respect to specific conflicts.

He said Hungary's support for the creation of the permanent international criminal court had been manifested in many ways, including the submission of written comments on the draft statute of the court in 1994, the year the International Law Commission finalized that text. Hungary was committed to pursuing the negotiations on the convention and would continue to do its utmost to ensure the establishment of a truly independent and genuinely effective international criminal court.

SVEIN AASS (Norway) said an international criminal court could contribute to peace-building and reconciliation, and help create the rule of law. It was important that the court obtained broad-based support and participation from member States. Norway had contributed to the Trust Fund to help the least developed countries participate in the work of the Preparatory Committee and in the diplomatic conference, and he urged others to do the same.

For the court to be truly operational with a clear mandate and effective powers, its jurisdiction should focus on the most severe international crimes, particularly genocide, crimes against humanity and serious war crimes. A broader range of crimes might be considered on the basis of a review clause, after the court's statute had entered into force. The court should be given jurisdiction over core crimes in the absence of an effective national apparatus for the prosecution of those crimes. Norway endorsed the formula on complementarity between the court and national jurisdictions adopted by the Preparatory Committee at its August session. It hoped similar progress would be made on such a issue as the relationship between the court and the Security Council.

LAMIA MEKHEMAR (Egypt) said an international criminal court should have jurisdiction over the core crimes of genocide, war crimes, crimes against humanity and crimes of aggression. Furthermore, all those crimes should have equal footing and equal importance before the court. Although crimes of

Sixth Committee - 9 - Press Release GA/L/3046 13th Meeting (AM) 23 October 1997

aggression had not yet been defined, that question should also be given importance by the court and the Preparatory Committee should seek an adequate way to determine when such crimes had been committed.

On the role of the prosecutor, she said that individual and his ability to trigger court proceedings had a direct impact on the role of the court. The prosecutor should not be subject to political influences and must be truly independent to initiate proceedings. The ability to initiate court proceedings should not lie only with the prosecutor, but should be the joint responsibility of other institutions and bodies as well.

B.M. MSAKA (Malawi) said it might not be helpful if attempts were made to fashion a court in accord with the special circumstances or needs of some States. His delegation was satisfied with the thrust of the draft text on the work of the Preparatory Committee and believed six weeks would be sufficient to conclude negotiations on the draft statute. His delegation had benefited from the Trust Fund and was grateful to countries which had contributed to it. It urged continuation of the assistance to enable as many developing countries as possible to participate in the development of the convention on the court, which would be a momentous development in international law.

HIROSHI KAWAMURA (Japan) said that in the establishment of the international criminal court it was most important to allow for the protection of human rights. That could be done through establishing clear factors which constituted a crime, the establishment of due process, and ensuring that the complementarity principle was reflected in the criminal trials of the court.

With only five weeks left in the current session of the Preparatory Committee, he said there were still several difficult issues remaining. Those included determining targeted crimes, the definition of crimes and the extent of judicial cooperation between the court and the State parties. Members of the Committee should work together to produce a consolidated text before the holding of the diplomatic conference next year in Rome.

* *** *