SPEAKERS IN LEGAL COMMITTEE CALL FOR REVIEW OF STATUTE OF UN ADMINISTRATIVE TRIBUNAL

24 October 1997

Press Release
GA/L/3048

SPEAKERS IN LEGAL COMMITTEE CALL FOR REVIEW OF STATUTE OF UN ADMINISTRATIVE TRIBUNAL

19971024 Debate on International Criminal Court Concluded

The statute of the United Nations Administrative Tribunal should be reviewed to bring it up to date, the Sixth Committee (Legal) was told this morning as it considered a request to amend the statute's provision relating to the competence of the Tribunal to specialized agencies.

The representative of the United Kingdom said that while it supported the proposed amendments to the statute, certain existing provisions could benefit from re-examination. One clear example, he said, was the lack of any mention in the statute of the need for its members to have appropriate legal qualifications, "a point which would seem rather obvious in view of the very difficult legal matters with which the Tribunal often has to wrestle". A review of the statute to update that and other aspects could prove an extremely useful exercise.

The representative of Malaysia also said there was need to review or update some of the provisions of the statute to ensure its consistency with current realities. The representative of France agreed with the position of the United Kingdom.

In a note requesting the amendments, the Secretary-General said the President of the International Court of Justice had decided to modify the appeals system to permit the extension of the jurisdiction of the Tribunal to cover the Court's Registry staff.

Another proposal was to modify the provisions of the Tribunal's statute to conform with a General Assembly decision relating to the Tribunal's jurisdiction in cases of alleged non-observance of the Regulations of the United Nations Joint Staff Pension Fund. The Secretary-General also proposed the extension of the Tribunal's competence to other international organiza- ions and entities participating in the common system of conditions of service.

The Tribunal is competent to hear and pass judgement upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or the terms of appointment of such staff members. Its competence may also be extended to specialized agencies.

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Also this morning, the Sixth Committee concluded its debate on the establishment of an international criminal court.

The representative of Kyrgyzstan said the relationship between the court and national courts should be complementary. While recognizing the primary duty of States to deal with crimes under the court's jurisdiction, it was the court that should prosecute those crimes when the national system had failed or had not undertaken adequate measures.

The observer of the International Committee of the Red Cross said the court should not be impeded by extra obstacles such as the requirement of State consent. States already had the right to either exercise their jurisdiction or hand over suspects of core crimes without having to secure the agreement of others. To require State consent for a particular case to be submitted to the court would be a step backwards from existing law.

An open-ended Preparatory Committee is drafting a convention on the international criminal court. The Committee is scheduled to have two more sessions before a diplomatic conference to be held in Rome next year to finalize and adopt the convention. The two sessions will be held from 1 to 12 December 1997, and 16 March to 3 April 1998.

The representatives of Italy and San Marino, as well as the observer of the Holy See, also spoke on the establishment of the criminal court.

The Committee will meet again at 10 a.m. on Monday, 27 October, to begin consideration of the report of the International Law Commission.

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Committee Work Programme

The Sixth Committee met this morning to consider a proposal on an amendment to article 13 of the statute of the United Nations Administrative Tribunal. Before the Committee are two notes of the Secretary-General. By the first, the Secretary-General requests the inclusion of the proposed amendment on the agenda of the current session of the General Assembly. An addendum to that note contains an explanatory memorandum on the request. Established in 1949 by Assembly resolution 351A (IV), the Tribunal is competent to hear and pass judgement upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or the terms of appointment of such staff members.

Also this morning, the Committee is scheduled to conclcude its consideration of the establishment of an international criminal court. (For bacgkround information, see Press Release GA/L/3044 of 21 October.)

In the explanatory memorandum on the proposed amendment to the statute of the United Nations Administrative Tribunal (document A/52/142/Add.1), the Secretary-General states that the International Court of Justice had decided to modify the appeals system currently available to its Registry staff in order to permit the extension to them of the jurisdiction of the Tribunal. The Court had, consequently, adopted an amendment to a provision (article 11) of the Staff Regulations for the Registry to provide for that purpose, and under conditions to be determined in an exchange of letters between the President of the Court and the Secretary-General.

As the Tribunal's statute at present does not provide for the exercise of its competence in respect of the Registry staff, the entry into force of the amendment is subject to an appropriate modification by the General Assembly of the Tribunal's statute, the Secretary-General states. It adds that the President of the International Court of Justice had, therefore, asked the Secretary-General to arrange for the inclusion of the matter in the agenda of the fifty-second session of the Assembly.

Article 13 of the Tribunal's statute states, among other things, that the Tribunal's competence may be extended to any specialized agency brought into relationship with the United Nations in accordance with the provisions of Articles 57 and 63 of the Charter on the terms established by a special agreement made with the agency by the Secretary-General. Each special agreement shall provide that the agency concerned shall be bound by the judgements of the Tribunal and be responsible for the payment of any compensation awarded by the Tribunal in respect of a staff member of that agency. The agreement shall include, among others, provisions concerning the agency's participation in the administrative arrangements for the Tribunal's functioning and the sharing of its expenses.

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According to the Secretary-General, an arrangement proposed by the International Court of Justice could be accommodated either by adding a new paragraph to article 13 of the Tribunal's Statute, which would become paragraph (a) of that article or by adding a new article 14, reading, in language proposed by the Court, as follows:

"The competence of the Tribunal will be extended to the staff of the Registry of the International Court of Justice upon the exchange of letters between the President of the Court and the Secretary-General of the United Nations establishing the relevant conditions."

A modification of the provisions of the Tribunal's statute is also suggested to ensure the statute's conformity with General Assembly decision 955 (X) of 3 November 1955 relating to the Tribunal's jurisdiction in cases of alleged non-observance of the regulations of the United Nations Joint Staff Pension Fund. Accordingly, it is proposed that the following new paragraph be added, based on article 48 of the Pension Fund Regulations, to article 13 of the Tribunal's statute, which would become paragraph (b) of that article:

"The Tribunal shall be competent to hear and pass judgement upon applications alleging non-observance of the regulations of the United Nations Joint Staff Pension Fund arising out of the decision of the United Nations Joint Staff Pension Board submitted to the Tribunal by:

"(i) Any staff member of a member organization of the Fund which has accepted the jurisdiction of the Tribunal in Joint Staff Pension Fund cases who is eligible under article 21 of the Pension Fund Regulations as a participant in the Fund, even if his/her employment has ceased, and any person who has acceded to such staff member's rights upon his death;

"(ii) Any other person who can show that he is entitled to rights under the Pension Fund Regulations by virtue of the participation in the Fund of a staff member of such member organization."

Furthermore, it is proposed to extend the Tribunal's competence to other international organizations and entities participating in the common system of conditions of service. The Secretary-General notes that the United Nations has recently concluded or is in the process of finalizing relationship agreements with a number of international organizations and entities such as the International Seabed Authority, the International Tribunal for the Law of the Sea and the Organization for the Prohibition of Chemical Weapons. During the negotiations of the agreements, the organizations and entities expressed interest in an arrangement that could allow the extension of the Tribunal's competence to their staff. Consequently, the agreements provide for the application by their parties of common personnel standards, methods and arrangements, which is also a requirement for membership in the United Nations Joint Staff Pension Fund.

According to the memorandum, the Secretary-General believes that it would be useful to amend article 13 of the statute by including a new

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paragraph providing that the competence of the Tribunal may be extended to international organizations and entities participating in the common system of conditions of service. Such a paragraph, which should be the last paragraph, paragraph (d), of a revised article 13, could read as follows:

"The competence of the Tribunal may also be extended, with the approval of the General Assembly, to any other international organization or entity established by a treaty and participating in the common system of conditions of service, upon the terms set out in a special agreement between the organization or entity concerned and the Secretary-General of the United Nations. Each such special agreement shall provide that the organization or entity concerned shall be bound by the judgements of the Tribunal and be responsible for the payment of any compensation awarded by the Tribunal in respect of a staff member of that organization or entity and shall include, among others, provisions concerning its participation in the administrative arrangements for the functioning of the Tribunal and concerning its sharing the expenses of the Tribunal."

If the General Assembly approves the above recommendations, the text relating to the staff of the Registry of the International Court of Justice would become paragraph (a) of article 13 of the statute of the Tribunal; that on the Joint Staff Pension Fund would be paragraph (b); the text of the present article 13 would become paragraph (c), and that relating to international organizations and entities set out above would become paragraph (d).

Statements on International Criminal Court

ZAMIRA ESHMAMBETOVA (Kyrgyzstan) said her delegation supported the proposal that the remaining meetings of the Preparatory Committee on the establishment of the court should concentrate its efforts on reaching a consensus on issues with the widest divergence of views, such as the definition of some crimes, complementary principle, trigger mechanism, role of the Security Council and penalties. Her Government currently favoured the inherent jurisdiction of the court over three core crimes -- genocide, war crimes, and crimes against humanity. Its final position would, however, depend upon agreement on the definition of "aggression" and the inclusion of "treaty crimes", such as crimes against United Nations personnel and crimes involving the illicit traffic of drugs and psychotropic substances, into the court's statute.

Kyrgyzstan supported the concept of an independent court under minimum influence of the Security Council, she said. It agreed with the suggestions that the relationship between the court and national courts should be complementary. While recognizing the primary duty of States to deal with crimes under the court's jurisdiction, her country believed that it was the court that should prosecute those crimes when the national system had failed or had not undertaken adequate measures. Kyrgyzstan supported the supported the suggestions that the last session of the Preparatory Committee in March of

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next year should consider and adopt the rules of procedure of the Rome diplomatic conference to ensure its success.

FRANCESCO PAOLO FULCI (Italy) said the President of Italy, Oscar Luigi Scalfaro, sent a message to the Secretary-General in honor of the 52nd anniversary of the United Nations. As host country for the diplomatic conference on the court in 1998, the message included references to it. "Italy was proud to have made a fundamental contribution, in the past year, to the implementation of great battles of civility and law, especially for the abolition of the death penalty and the establishment of an international criminal court with a mandate to prosecute and punish genocide, war crimes and crimes against humanity, wherever and by whomever they are committed. Italy was ready to host in Rome the diplomatic conference to adopt the statute of the new court", wrote the Italian President.

GIAN NICOLA FILIPPI BALESTRA (San Marino) said his delegation would continue to follow the work of the Preparatory Committee and would never stop reiterating the need to respect and adhere to international law. The power of an international criminal court to reach offenders all over the world was an ambitious and useful one.

On the topic of participation in the diplomatic conference in 1998, he said the general fund to help the least developed countries attend that conference was important and would help ensure greater international cooperation.

MONSIGNOR VINCENT LAROCCA, Observer for the (Holy See), said the problems that remained to be solved in regard to the international criminal court were more in the nature of unfinished work than major obstacles. There was a light at the end of the tunnel on issues such as complementarity, the further definition of crimes, the trigger mechanism, the role and independence of the prosecutor and the independence of the court itself. To all of those issues there were very viable solutions. The Preparatory Committee had already proved its ability to overcome problems by solving such issues as principles of law and procedural aspects.

The will to create a court had been very significant, he said. When it was first presented in 1994, there had been confusion and doubt, but all of that had been defused by the will to elaborate a consolidated text. In the past, an international court had seemed impossible, but now a viable and efficient court was very possible.

JOHN PHILIPP LAVOYER, of the International Committee of the Red Cross, said the international criminal court should have jurisdiction over war crimes committed in international and non-international armed conflicts. It must have jurisdiction over all serious violations of humanitarian law and should follow the statement made by the International Criminal Tribunal for the Former Yugoslavia, that "what is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife".

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He said that, in order for the court to be an effective complement to national courts, it should not be impeded by extra obstacles, such as the requirement of State consent. Under the principle of universal jurisdiction, any State already had the right to either exercise its jurisdiction or hand over suspects of those core crimes without having to secure the agreement of other States. It underscored that war criminals were not immune from prosecution. Therefore, to require State consent for a particular case to be submitted to the court, would be a step backwards from existing law.

He added that, in order to ensure that the court would be impartial and independent, prosecutions should not be subordinated by the power of the Security Council to prevent or delay it when it was dealing with situations under Chapter VII of the Charter. The Prosecutor should be empowered to initiate investigations and institute proceedings ex officio.

Statements on United Nations Administrative Tribunal

JOHN GRAINGER (United Kingdom) said that the request for the extension of the competence of the Tribunal to the staff of the Registry of the International Court of Justice was entirely appropriate. The second proposed change, relating to cases of alleged non-observance of the Regulations of the United Nations Joint Staff Pension Fund, was also necessary in order that the Tribunal's statute was brought into conformity with previous decisions of the General Assembly. The United Kingdom was happy to concur with the recommendation that the competence of the Tribunal should also be extended to certain other international organizations or treaty bodies, with the approval of the Assembly, and in accordance with special agreements to be concluded between the organization or body concerned and the Secretary-General. The suggested amendment was appropriate as the organizations concerned had adopted the United Nations common system for conditions of service.

While fully supporting those proposed amendments to the statute, he said his delegation could not help but notice that as the Tribunal moved towards its own fiftieth anniversary, there were certain provisions in its statute which could benefit from re-examination, particularly when compared to other Tribunals which had come into operation more recently. One clear example was the lack of any mention in the statute of the need for its members to have appropriate legal qualifications, a point which would seem rather obvious in view of the very difficult legal matters with which the Tribunal often had to wrestle. A review of the Tribunal's statute to update that and other aspects could prove an extremely useful exercise, and one which the United Kingdom hoped would assist the Tribunal in discharging its functions.

He said the proposed amendments should be adopted at the current session of the General Assembly. The resolution which would make the amendments should point to the desirability of reviewing the provisions of the statute at an early date. The resolution should also recommend that an appropriate agenda item to deal with the issue should be included in the provisional agenda of the fifty-third session of the Assembly.

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MOHAMAD RAMEEZ YAHAYA (Malaysia) said the request of the President of the International Court of Justice merited consideration. Through the amendment, the staff of the Court's Registry could, in the event of a failure to achieve a conciliation with the Court's Registrar, appeal against any administrative decisions or disciplinary actions. Malaysia supported the proposed amendment to the Tribunal's statute which would in effect give the Tribunal competence to hear appeals by the Registry staff.

Malaysia also supported the extension of the competence of the Tribunal over Joint Staff Pension Fund cases, he said. Furthermore, it supported the Secretary-General's proposal to amend article 13 of the Tribunal's statute to extend that the competence of the Tribunal to international organizations and entities participating in the United Nations common system of conditions of service. There was need to review or update some of the provisions of the statute to ensure its consistency with current realities. His delegation would support initiatives in that direction.

DAMIEN LORAS (France) said his country fully endorsed the proposal to amend article 13 of the statue of the Administrative Tribunal. He also supported the statement made by the representative of the United Kingdom that certain provisions of the Tribunal's statute would benefit from re- examination, particularly the need for its members to have appropriate legal qualifications. That was an important aspect to ensure that the Tribunal discharged its functions.

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