DELEGATES DIFFER ON WHETHER STATUTE OF PROPOSED INTERNATIONAL CRIMINAL COURT SHOULD COVER CRIME OF 'AGGRESSION'

23 October 1997

Press Release
GA/L/3047

DELEGATES DIFFER ON WHETHER STATUTE OF PROPOSED INTERNATIONAL CRIMINAL COURT SHOULD COVER CRIME OF 'AGGRESSION'

19971023 Exclusion Would Weaken Body, Some Argue; Others Tell Legal Committee Jurisdiction Should Be Limited to Conduct of Individuals

The statute of the proposed international criminal court should cover the crime of aggression despite problems over its definition, a number of representatives told the Sixth Committee (Legal) as it continued its discussion of the establishment of the court.

The representative of Bangladesh said aggression was among the crimes considered when United Nations adopted the 1948 Genocide Convention. The Nuremburg Tribunal described aggression as the "supreme international crime" and tried war criminals without a universally accepted definition. If the court was to have jurisdiction over the most serious crimes, it could not be conceived without the crime of aggression.

The representative of Mongolia expressed concern about efforts to exclude the crime of aggression due to problems in the Preparatory Committee in defining it. Justice would not be served if acts of aggression and breaches of peace were not dealt with properly. The deterrence value of the court would be seriously weakened and its credibility impaired.

Taking a different approach, the representative of Pakistan said the crime of aggression should not be included in the court's jurisdiction because the current United Nations definition of that crime was based on political rather than legal considerations. Another problem was that the crime of aggression was traditionally considered a crime committed by a State, and the court should be limited only to prosecuting individuals.

On other provisions of the draft statute, Nicaragua proposed the widening of the court's jurisdiction to cover terrorism and drug trafficking.

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Other statements in the debate were made by the representatives of Macedonia, France, Canada (on behalf of Australia and New Zealand), the United Kingdom, Nepal, Kuwait, Poland, Germany, Georgia, Belarus, Uruguay, the Philippines, Nicaragua, Haiti, Lao People's Democratic Republic, Russian Federation, Libya, Argentina, New Zealand and Syria.

Statements in exercise of right of reply were made by the representatives of Iraq and Kuwait.

The Committee will meet again at 10 a.m. tomorrow, 24 October to continue consideration of the establishment of the international criminal court.

Committee Work Programme

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

Statements

J. ENKHSAIKHAN (Mongolia) said he was concerned that there continued to be efforts to exclude the crime of aggression from the jurisdiction of the international criminal court. Failure to include that crime as a core crime in the court's jurisdiction would be a retreat from the precedent established and principles laid down by the Nuremberg Tribunal, which characterized aggression as the supreme international crime. Justice would not be served if acts of aggression and breaches of peace were not dealt with properly and the deterrence value of the court would be seriously weakened and its credibility impaired.

He added that the jurisdiction of the court should also include serious threats to the environment that had grave and long-lasting consequences. Examples of such threats were the Chernobyl and Bhopal disasters. The fact that such disasters were not broadly accepted or clearly defined should be considered a legal lacuna and the situation should be redressed and reflected in the court's statute. The inclusion of a provision on crimes causing wide- spread, long-term damage to the environment would give effect to the principle that States should not produce significant harmful effects in zones situated outside their national jurisdiction.

MAJA ORTAKOVA (The Former Yugoslav Republic of Macedonia) said that although there were still unresolved issues, the spirit of cooperation that had prevailed during the work of the Preparatory Committee should result in a widely acceptable consolidated text of a convention to be adopted by the diplomatic conference in Rome. Relevant non-governmental organizations should be welcomed to the conference, as well as organizations that had received a standing invitation from the General Assembly. Their contribution had already proved important in the deliberations of the Preparatory Committee.

DAMIEN LORAS (France) said his country had spared no effort to foster the elaboration of an acceptable convention on the establishment of the international criminal court. France supported the statement made by the representative of the Netherlands on behalf of member states of the European Union. The most appropriate solutions to problems arising in the negotiations should be sought, to make the international criminal court effective. The experience gained from the International Criminal Tribunals for the former Yugoslavia and for Rwanda showed that the future court could not be an extension of national judicial systems. The court should exercise its functions in harmony with United Nations organs. It should not be used to

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settle scores. France supported the principle of the court's jurisdiction over core crimes. It welcomed the principle of complementarity. States should have the possibility of challenging decisions of the court.

He said France welcomed the participation of non-governmental organizations in the diplomatic conference scheduled for Rome next year, according to modalities laid down in relevant United Nations resolutions for their involvement in meetings organized by the world body. He hoped the spirit of openness and transparency would prevail during the conference.

JOHN HOLMES (Canada), speaking also for Australia and New Zealand, said the statute of the future international criminal court should provide a basic structure which laid out fundamental principles and procedures. Details could be fleshed out in the court's rules of procedure at a later date. He urged good faith negotiations towards the creation of an independent court, with effective jurisdiction over the core crimes of genocide, war crimes, and crimes against humanity. The objective should be to avoid a regime which permitted States to gain the prestige of ratifying the court convention without ever accepting its jurisdiction with respect to a particular crime. The principle of complementarity presented sufficient safeguard for sovereign interests.

On the court's relations with the Security Council, he said it was important that it should be free from undue interference from the Council. Although some role for United Nations organs, including the Council, was envisaged, it was imperative, that the court was not subjected to paralysis at the hands of the Council. The court should not be precluded from taking action in a matter simply because it was on the Council's agenda.

The establishment of the court represented an historic step in the development and enforcement of international law. The international community should not wait for another catastrophe before establishing a permanent body to respond to the widespread atrocities which so often occurred in armed conflict. Recent history had shown that a standing international court was needed to avoid the expense and delays involved in establishing a new ad hoc body for each situation. The international criminal court would be an important victory in the ongoing battle against impunity, and would demonstrate the abhorrence of the international community at the atrocities which had been all too commonplace in the present century.

ANWARUL KARIM CHOWDHURY (Bangladesh) said the independence of an international criminal court from the Security Council and its jurisdiction was the most important question. In order to uphold independence of the court, involvement of the Council should be minimal. While his country would accept the involvement of the Council in bringing situations to the court, it was concerned by the proposal that the court could not carry out prosecution of cases that were being considered by the Council under Chapter VII of the United Nations Charter. Since the core crimes were most likely to occur only

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in Chapter VII situations being dealt with by the Council, such a provision would make the court subservient to the Council for all practical purposes.

On the question of the court's jurisdiction, he said crimes of aggression should be included in the core crimes under the court's jurisdiction. Aggression was among the crimes around which the United Nations initially conceived the idea of a court during the adoption of the 1948 Genocide Convention. The Nuremburg Tribunal described aggression as the "supreme international crime" and tried war criminals without a universally accepted definition. If the court was to have jurisdiction over the most serious crimes, it could not be conceived without the crime of aggression.

SUSAN DICKSON (United Kingdom) said that for the diplomatic conference to be manageable, real attempts would have to be made to reach negotiated texts in the remaining sessions of the Preparatory Committee. The two sessions of the Preparatory Committee held during the year were an important key to the outcome of the forthcoming diplomatic conference. Considerable progress had been made on the general principles of criminal law and it was the United Kingdom's view that work be completed in the remaining sessions of the Preparatory Committee.

On crimes against humanity, she said that although progress was made there remained a number of controversial matters and she hoped there would be time for informal discussion of them before the diplomatic conference. Further informal discussion was also necessary on the issue of trigger mechanisms.

She commended non-governmental organizations for their useful contributions during sessions of the Preparatory Committee. Her delegation was glad to have been able to host a meeting on the question of the role of the victim with non-governmental organizations during the August session of the Preparatory Committee. Focused informal meetings such as that were particularly useful in enabling delegations to benefit from the expertise of non-governmental organizations.

BHRIGU DHUNGANA (Nepal) said his country favoured the early establishment of the court, which should not supplant national courts or become an appellate body to them. The principle of the primacy of national courts should be upheld. He called for a clear jurisdictional boundary between them and the court, to avoid overlapping. The court, in the beginning, should have jurisdiction over certain core crimes of international concern. The definition of each crime should, however, be well-articulated, he said. The question of treaty-related crimes could be taken up during the future review of the court's statute.

On the relationship between the court and the Security Council, he said it was Nepal's view that the primary role of the Council in the maintenance of international peace and security should remain paramount. At the same time,

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sight should not be lost of the need to ensure the court's effectiveness and independence. With the establishment of the court, the international community would have moved to the long-cherished dream of a world of 'peace through justice', he said.

AYADAH AL-SAIDI (Kuwait) said his country supported the draft statute of the future international criminal court. Participation of all countries in the drafting of the convention establishing the court was important to ensure cultural plurality which could enrich the statute. Kuwait supported focus on heinous crimes, such as genocide, crimes against humanity, war crimes and aggression. Kuwait believed that the crimes should be limited in number, adding that their definition was important to ensure the court's effectiveness.

Commenting further on the statute of the court, he said the death penalty should be retained, particularly with regard to heinous crimes and in the light of the number of victims involved. He said Iraqis responsible for heinous crimes against his country should be brought to justice. The future international criminal court should be made universal and should reflect various legal systems. He welcomed the participation of non-governmental organizations. Kuwait pinned great hopes on the court, he said.

ZDISLAW GALICKI (Poland) said that in the initial stages of the court its jurisdiction should be limited to the most serious crimes of international concern. A narrower scope could facilitate and accelerate the process of ratification of the statute of the court. However, crimes under its jurisdiction must be precisely defined to avoid legal uncertainty. Poland shared the opinion of many other States that the court should have jurisdiction over the core crimes.

The question of complementarity was also of crucial importance, he said. It should be clear that the international court was not going to replace national judicial systems. On the contrary, the court should assist national jurisdictions and complement them when necessary. While the Preparatory Committee had attempted to meet the difficult problem of addressing complementarity, its document adopted in August was too complex and that may negatively affect the court's acceptability.

On the subject of whether the court would enforce the death penalty, he said his country would have very substantial difficulties approving a court statute that approved capital punishment. Poland had recently adopted a new criminal code eliminating such punishments.

ROLF WELBERTS (Germany) said an effective international criminal court would have to rest on four building blocks: the principle of complementarity - - the court would only act when national courts were unable or unwilling to prosecute; the limitation of its jurisdiction to only four universally punishable core crimes -- genocide, crimes against humanity, war crimes and

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crimes of aggression; the power of the court's prosecutor to initiate investigations ex officio; and the power of the court's independence against political influence -- either by State or by the United Nations Security Council.

He said his delegation was encouraged by the broad support for its initiative for the inclusion of the crime of aggression in the future court's statute. That statute would be blatantly incomplete without the inclusion of the crime of aggression. While concerns existed in the Preparatory Committee regarding the crime of aggression, the inclusion of that crime in the statute only had a chance if the spirit of compromise prevailed.

ALEXANDER CHKHEIDZE (Georgia) said his country considered the establishment of the future international criminal court as one of the most important developments of the post-war era. The court would significantly contribute to the strengthening of the rule of law. Experience drawn from the International Criminal Tribunals for the former Yugoslavia and for Rwanda should be taken into account with respect to the court. Georgia supported the establishment of the court under a multilateral treaty and for its relationship with the United Nations to be based on a relationship agreement. It also supported the proposal of the International Law Commission that the court should be a permanent body. He said the court's jurisdiction should cover the most serious crimes which threatened the international community. Georgia welcomed the principle of complementarity which defined the court's jurisdiction and that of States.

SYARGEI SYARGEEU (Belarus) said that while his country supported the Security Council making use of the international criminal court, he did not support the strict interrelationship between the actions of political and judicial organs in all situations involving a threat to peace and security under Chapter VII of the United Nations Charter. The court should be bound by the Council only when an act of aggression had been committed. Taking into consideration the particularly serious character of an act of aggression, it should be included in the court's inherent jurisdiction.

He said the court should be established as an independent organ closely linked to the United Nations. That relationship could be established through the adoption of a resolution by the General Assembly and the Security Council, and by conclusion of an agreement. That agreement would be subject to the approval of States parties so that States would be able to influence the language of the agreement. On the basis of that agreement, the United Nations should ensure the court's financing.

JULIO BENITEZ-SAENZ (Uruguay) said his country endorsed the statement made by Paraguay. The proposed international criminal court should replace ad hoc tribunals. It should have total autonomy and independence. Its functions should not replace those of national judicial systems. There should be safeguards for affected States and the accused. It would be helpful, he said,

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if the rights of States where the accused was located were preserved. He said those States should have locus standi before the court. He commended Italy for offering to host the diplomatic conference and hoped the text that would concluded would have widespread support.

FAROO HASSAN (Pakistan) said that while he supported the inclusion of the core crimes of genocide, crimes against humanity and war crimes, the crime of aggression should not be included in the court's jurisdiction. The current United Nations definition of that crime was based on political rather than legal considerations. Another problem was that the crime of aggression was traditionally considered a crime committed by a State, and the court should be limited only to prosecuting individuals.

He added that serious violations such as war crimes and crimes against humanity were also vague and needed to be further clarified by the Preparatory Committee. Particularly the crime against humanity needed to be defined because the judgements of the Nuremberg Tribunal did not define that offence. There was a clear need for clarification as to what were the elements that constituted crimes against humanity.

RAUL ILUSTRE GOCO (Philippines) said the Working Group on procedural matters should continue to mold articles embodying general principles of the international criminal court with enough flexibility to withstand the test of time and various environments. Balance must be found between the rights and the protections afforded to the suspects, accused, victims and witnesses. It was important to derive solutions free from the over-emphasis on national laws. That must pervade all the rest of the work. With a solid foundation, the Committee could build an adequate complaint, investigatory and procedural mechanism that would not be burdened with a request for consent at every step of the process. With sufficient safeguards, the court could ensure the international community that it did not have jurisdiction whenever it was merely convenient.

MARIO CASTELLON DUARTE (Nicaragua) said the establishment of the international criminal court was a necessity. He noted the progress made in the drafting of the text of the convention on the establishment of the court. He urged delegations to act in a spirit of cooperation and harmony to ensure the adoption of a convention that would enjoy widespread support without its independence and impartiality being sacrificed.

He said the court should be permanent in character and should be composed of enough judges representing different legal systems and all regions. The independence of its prosecutor should be safeguarded in the statute and he or she should enjoy the support of States parties. Nicaragua favoured the inclusion of the crime of terrorism and drug trafficking in the court's statute. Nicaragua did not have the death penalty in its criminal code and did not, therefore, favour it in the court's statute. He said the rights of accused should be safeguarded.

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Nicaragua would be prepared to accept a limited role for the Security Council in its relationship with the court, and that should cover the referral of relevant documentation to the court.

BEATRICE EUGENE (Haiti) said the court must be independent and free from all political interference in order to remain impartial. Through its impartiality, its credibility would be ensured. In further consideration of the court's statute, the Preparatory Committee should not include the use of the death penalty to punish the convicted. Her delegation also encouraged the industrialized countries to contribute to the fund set up by the Secretary- General that would enable the least developed countries to attend the Rome conference in 1998. Full participation in that conference would be essential for the future success of the court.

ALOUNKEO KITTIKHOUN (Lao People's Democratic Republic) said the international criminal court should not supersede national courts but only be a complement to them. Unnecessary jurisdictional conflicts between the court and national courts should be prevented. For that purpose, it was necessary that a clear and explicit provision be found and accepted by all, which deliver the respective jurisdiction of the two institutions.

He said the principle of state sovereignty in the conduct or management of affairs was of utmost importance. The jurisdiction of the court, therefore, should be based on the consent of States and that should remain the basis of jurisdiction of the new court. The idea of providing inherent jurisdiction for the court without the consent of States in respect to some crimes could not be accepted; that would violate the principles of State sovereignty and complementarity.

ALEKSANDR V. ZMEEVSKY (Russian Federation) said the international criminal court should not be a substitute for national judiciary systems, but complement them in strictly defined cases. His country believed that the court's jurisdiction should cover acts threatening the maintenance of international peace and security. Such crimes, in the view of the Russian Federation, included planning, preparing, initiating and carrying out a war of aggression; genocide; war crimes; crimes against humanity, and the most serious terrorist acts affecting the interests of the entire international community.

The Russian Federation supported the establishment of an autonomous and independent court. At the same time, it believed that the court should be closely connected to the United Nations. One element of that relationship should be the ability of the Security Council to refer relevant situations to the court, primarily those covered by chapter VII of the Charter. The court should have jurisdiction over crimes of genocide as well as cases referred to it by the Security Council. There should be no infringement on the Council's

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prerogative to act on situations that threatened international peace and security. The court's prosecutor should not have the right to initiate proceedings ex officio.

It would be unproductive for the Preparatory Committee to discuss again the issue of definition of crimes at its forthcoming sessions. The question could be dealt with at the diplomatic conference. He also said procedural and other issues relating to the preparation of the conference and the participation of non-governmental organizations could be discussed at informal inter-sessional consultations of members of the Preparatory Committee.

ABDUSSALAM SERGIWA (Libya) said an international criminal court must represent the various legal systems of the world and apply the principles of geographical distribution. It should also be established with multilateral governance to guarantee that court leadership was distributed to many countries. Also, the court should not become a substitute for national courts and it should respect national jurisdictions.

He added that the crime of aggression should fall within the jurisdiction of the court. That crime should be defined to include the crime of destruction and confiscation of property, the establishment of settlements in occupied territories, and the conducting of biological experiments. The court should also preside over cases of international terrorism and give a definition to terrorism.

He said the rights of the accused should also be upheld by the court. There should be fair procedures for the accused and they should not be forced into confessions through pressure by the court. There should also be a guarantee of confidentiality of the court's proceedings.

FERNANDEZ de GURMENDI (Argentina) welcomed the wide support the proposed international criminal court enjoyed in Latin America. He said the diplomatic conference was the only forum which could make the text on the convention a reality. Compromises proposed in the Preparatory Committee offered solutions to thorny problems and should help speed up work on the draft text.

He said the statute of the court should contain procedures necessary to facilitate its functioning. Detailed principles could be dealt with at a later date. The major progress achieved in the Preparatory Committee was due primarily to the inspired leadership of its Chairman, Adriaan Bos of the Netherlands. He also thanked the Secretariat for its work and constant support. Constructive proposals by delegations from different legal systems had been helpful. He commended the role of non-governmental organizations and said their participation in the future sessions of the Preparatory Committee and at the diplomatic conference itself should be assured.

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FELICITY WONG (New Zealand) said her delegation supported the statement made by the representative of Canada on her country's behalf, but would like to highlight the useful role of non-governmental organizations in the drafting of the convention to establish the international criminal court. She mentioned in particular the work of the women's caucus in the International Law Commission, and their call for attention to be given to the issue of sexual violence against women. The experience in the former Yugoslavia underlined the importance of the question. Other issues of concern to women included child soldiers, rape, prostitution and compensation from accused persons.

She said it should be possible for non-governmental organizations to organize a conference of their own before the diplomatic conference. Some flexibility would be required for those organizations to continue their consultative role in the negotiations on the establishment of the court. She stressed that the Charter did not restrict matters relating to international peace and security to the Security Council only, and that the General Assembly also had a role.

She called for a mechanism to ensure the conclusion of the negotiations whether agreement was reached or not. Her delegation was concerned about the need for transparency and openness in the negotiations.

GHASSAN OBEID (Syria) said the proposed international criminal court should reach all those who had violated international law and committed the most heinous crimes against humanity and bring them to justice. The court should be built based on the laws and values of many cultures from all over the world and represent all different peoples. That was essential if the court was truly to be an international body. It also should be free from political motivations and exercise justice, integrity and neutrality.

He added that crimes of aggression should be included within the jurisdiction of the court. The General Assembly created an adequate definition for crimes of aggression when it adopted the report of the committee on the definition of aggression on 14 December 1974. That definition should shape future discussion on that issue. It was also important that the debate over aggression should not undermine the establishment of the court. The court itself should determine the cases that qualify as aggression and should not defer to the Security Council on that matter.

Right of Reply

RIADH HASHIM AL-ADHAMI (Iraq), in right of reply, said Kuwait had violated international law by financing and supporting outlaw gangs that carried out terrorist bombing in many parts of Iraq. Those gangs had a goal of changing the Iraqi regime and that was a violation of international law.

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AYADAH AL-SAIDI (Kuwait) replying, said the statements by the Iraqi representative were untrue. Iraq had been a violator of international law when it invaded Kuwait and it continued to violate laws by holding Kuwaiti prisoners of war. Iraq was also not implementing Security Council resolutions made after the Gulf war in 1991.

Mr. AL-ADHAMI (Iraq) said the representative of Kuwait had not responded to his statement about the aggression against his country by Kuwait. He referred to the charges made in 1990 by the Kuwaiti Ambassador to the United States about Iraqi mistreatment of Kuwaiti infants which turned out to be false.

Mr. AL-SAIDI (Kuwait) said there were documents to show the crimes committed by Iraq against his country. The list of such crimes was a long one, he said. The world was witness to crimes committed against women and children. Kuwait followed the path of peace in its foreign policy.

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