PRESS CONFERENCE BY CHAIRMAN OF PREPARATORY COMMITTEE ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT

Press Briefing

PRESS CONFERENCE BY CHAIRMAN OF PREPARATORY COMMITTEE ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT

The Preparatory Committee on the Establishment of an International Criminal Court, currently holding its sixth session at Headquarters, was today beginning discussions of the relationship of the proposed court with the United Nations, as well as its financing, the Committee Chairman, Adriaan Bos (Netherlands), told correspondents at a press briefing this morning.

The Committee's three-week session, which began on 16 March and is scheduled to conclude on 3 April, is supposed to be its last before the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, to be held from 15 June to 17 July in Rome.

Four possible forms of relationships with the United Nations have been suggested: the court, as a principal organ of the United Nations (which might require amendment of the United Nations Charter); a United Nations subsidiary body; an independent international organization; or as a United Nations treaty body.

Mr. Bos said that it was realized by delegations that it would be difficult to have the United Nations Charter amended. Nevertheless, it was still thought desirable that there should be close cooperation between the court and the United Nations. Among the issues being discussed was how that relationship should be. Another important issue was the financing of the court. A close association with the United Nations (such as the court being a treaty body) could mean financing from the United Nations budget.

In introductory remarks, Mr. Bos said the main purpose of the Preparatory Committee's work was the setting up of an international criminal court that would take care of the trial of "core crimes", defined as genocide, crimes against humanity and war crimes. He added that it was generally agreed that those crimes should come under the jurisdiction of the court. There was still some discussion on whether to include the crime of aggression, he noted, adding that the definition of the core crimes still required further elaboration.

The work of the Preparatory Committee had originally been based on a text prepared in 1994 by the International Law Commission, a United Nations body of eminent experts on international law, Mr. Bos said. Since then, the document had been supplemented in many respects. One addition had been the definition of the core crimes. The exercise had been a very delicate and difficult one because those crimes had been regulated in a number of international conventions dating from the beginning of the nineteenth century. He referred, in particular, to the 1949 Geneva Conventions and their later protocols.

Another extremely important issue, he said, was the functioning of the international criminal court in relation to national courts. The basic point had been that the court would be complementary to national jurisdictions. It had never been intended that the court should take over jurisdiction exercised by national courts. The international criminal court would only function in cases where national jurisdictions failed, due to inability or unwillingness to effectively prosecute. That aspect of complementarity was extremely important, because many States were concerned about keeping their sovereign discretion over their penal systems, he added.

Mr. Bos said a number of problems relating to the court's jurisdiction still had to be resolved, such as State consent -- whether proceedings could be undertaken only on the initiative of the court's prosecutor, or whether approval by more States would be needed. Some of those issues might have to be resolved at the Rome Conference, he added.

He noted the need for a single system for the functioning of the international criminal court to satisfy all. The Preparatory Committee was trying to find a proper balance between what should go into an instrument of a general nature and what could be left for the court's rules of procedure, or whether there should be an additional instrument. It was attempting to focus on what was strictly necessary for the establishment of the court, so the basic elements would be clear and the court's statute could be adopted in Rome.

Questioned about problems related to the court's jurisdiction, Mr. Bos said there was a view that by becoming a party to the court's statute, a State accepted its jurisdiction. That would pave the way for the court to have jurisdiction in cases involving that State. However, a number of States thought that was not sufficient. It was argued that the consent of a number of States was needed. The exercise of the court's jurisdiction might depend not only on the cooperation of the State where the crime was committed, but also the consent of the State where the criminal was being held. He added that the role of the prosecutor was also being discussed, including the kind of competence he should have.

"With those restrictions (on the court's jurisdiction), and the Security Council's role, could the international criminal court function?", a correspondent asked. Mr. Bos replied that the intention was to make it possible for the court to function. The basic assumption was that the court could not function if it did not have the cooperation of a State involved in a specific case. To deal with the problem, the court's draft statute had provisions on the obligation of States to ensure their cooperation.

Asked where the court's funding would come from, Mr. Bos said the options being considered were for the court to be funded directly from the United Nations budget, by the States parties, or by some other arrangements.

Criminal Court Press Conference - 3 - 24 March 1998

Asked who would initiate prosecutions -- States parties, the Security Council or the prosecutor -- he said there was broad agreement that the Security Council could refer cases to the court, as had been seen in the work of the ad hoc tribunals for the former Yugoslavia and Rwanda. The initiation of proceedings at the behest of the Security Council could be one option. There was also the question of a State complaint, as well as initiation of proceedings by the prosecutor based on information collected from other sources. States could also initiate proceedings based on information in their possession. Some delegations felt that the authority to initiate proceedings could give the prosecutor too much independence. Further discussions on those subjects were still going on, he added.

Asked to define the differences between genocidal crimes, crimes against humanity and war crimes, he said the definition of war crimes had been inspired by a number of international instruments, some of which were applicable in international and internal conflicts. The definition of genocide was taken from the 1948 Genocide Convention. The most difficult one to define was the crime of aggression, which had never been discussed, and that fell under the competence of the Security Council. Crimes against humanity included acts such as murder, extermination, enslavement, deportation or transfer of populations, and torture when committed in a widespread and systematic way.

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