PRESS BRIEFING BY USG FOR LEGAL AFFAIRS AND UN LEGAL COUNSEL

Press Briefing

PRESS BRIEFING BY USG FOR LEGAL AFFAIRS AND UN LEGAL COUNSEL

What mechanism will trigger investigations by an international criminal court and what will that court's relationship with the United Nations be? Those would be among the key questions to be addressed by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, to be held in Rome from 15 June to 17 July.

Those questions were identified during a press briefing on the court held this morning at Headquarters by Under-Secretary-General for Legal Affairs and United Nations Legal Counsel Hans Corell, who is also the Representative of the Secretary-General to the Conference. Kensaku Hogen, Under-Secretary- General for Communications and Public Information, introduced Mr. Corell.

Characterizing the court as a "missing link" in the international legal system, Mr. Corell said the court had been on the agenda of the United Nations since the Second World War. Because of the political situation and other reasons, the matter was never brought to the forefront of discussions.

It was a pressing issue now, however, for two reasons. In 1989, Trinidad and Tobago asked to have the item put on the agenda of the General Assembly's Sixth Committee (Legal) due to concerns about prosecuting drug traffickers in the Caribbean. The developments in Rwanda and in the former Yugoslavia in the 1990s gave further impetus to the court. The international community had identified the need to hold persons and individuals responsible for particularly heinous crimes and prosecute them in an international setting.

It was important to point out the difference between the International Court of Justice (ICJ) and the criminal court, he said. The ICJ dealt with questions and issues between States. The ICJ would continue to be an important body for solving disputes at the international level. The ICJ, however, did not focus on personal responsibility or the responsibility of the individual. The atmosphere would be very different in a criminal court where people would be brought in under indictments for very serious crimes.

It was also important to note the difference between an international criminal court and the ad hoc tribunals on Rwanda and the former Yugoslavia, he added. The ad hoc tribunals were set up by Security Council resolutions under Chapter VII of the United Nations Charter, which allows the Council to adopt resolutions that were binding for Member States. The world was, therefore, obliged to comply with the requirements of those resolutions. The international criminal court would be created by agreement among States in the form of an international treaty.

In Rome, Member States would discuss a treaty that would contain a statute for an international criminal court, he said. A government had to transform that treaty into a proposal and that proposal would be submitted to the national legislative body. The national legal system then would have to be brought into line with the treaty and conform to its provisions and requirements. Once that was accomplished, the Member States could sign the convention. While details about the court would not be finalized until the Rome Conference, some matters already had basic agreement among States, he said. Among those was the basic structure of the court, which would be made up of three main organs: a chamber where the judges would sit, a prosecutor and a registry. Beyond that, there were many issues that States did not agree upon. It should be recognized, however, that the creation of the court was a highly complex task politically, legally and practically. It was very difficult to deal with matters such as criminal procedures at international level because there were different legal systems with different legal concepts. The main task was to bring all those differences together to create a court that many States could accept.

Among issues to be discussed at Rome would be which crimes would be covered under the court's statute, he said. Basically the crimes would focus on crimes against humanity, war crimes and genocide. There was still discussion on how to define those crimes. There were also differences of opinion over whether to include the crime of aggression. Aggression was complex because it was difficult to have a clear concept of what constituted aggression.

Another issue that would be considered was the question of complementarity -- when a case required attention by the international court and when it should be handled by national courts, he said. There was an understanding that an international court could not take up a large number of cases and it would have to focus on the most serious crimes. The national courts would have to be relied upon for most criminal cases. "By no means should the international criminal court be a substitute for a proper legal system at the national level", he said.

The issue of complementarity was related to the debate over who would trigger the court into action, he added. While some believed it should be a Member State that initiated an investigation by the court, others wanted the Security Council to bring cases to it. There was also support for an independent prosecutor's office that could initiate investigations on its own.

One question that came up often, he said, was on when the court's treaty would come into force. The treaty would specify how many States would need to ratify it before it became active. States wanted as many ratification as possible to show that the court enjoyed true international support. At the same time, if the target number of ratification was set too high, it would take a very long time for the treaty to go into effect.

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The court's relationship to the United Nations was another key issue that would be discussed at the Conference, he said. While there was agreement that the court should have a relationship with the United Nations, the question was how that relationship would be established. There were also many who believed that the United Nations should be involved in the financing of the court.

On the structure of the conference, he said there would be a plenary that would elect its president on the first day, 15 June. General debate was planned to begin on that first day and go on until Thursday, 18 June. During the general debate, statements would be made by Member States, as well as intergovernmental and non-governmental organizations. Also on the first day there would be the election of a General Committee. Among its tasks would be to create the Drafting Committee, which would finalize the text. There would also be a Committee of the Whole, which would have a separate chairman and would work in an informal setting to discuss the formation of the court. It would be open to all States and among its duties was to appoint working groups to address specific issues that would surface during the conference.

Mr. Corell was asked if the existing ad hoc tribunals for Rwanda and the former Yugoslavia would be phased out and if the Security Council would still be able to set up ad hoc tribunals after the permanent court was established. He responded that the Council demonstrated that it had the ability to set up ad hoc tribunals. Depending on how well the court was organized, the Council may not have to set up ad hoc tribunals in the future. On the two existing tribunals, he said that the basic idea so far was that the court would handle future crimes and would not address past crimes. But a final decision on that matter would be determined at the Rome Conference.

Would terrorism be covered under the court's jurisdiction? a correspondent asked. Mr. Corell said there were a number of crimes that were still being considered and terrorism was among those crimes, as well as crimes against United Nations and associated personnel.

Would the court be able to prosecute organizations, or just individuals? Mr. Corell was asked. He responded that the court would focus on individuals and personal responsibility. On questions of responsibility and reparations, it was not determined if organizations or groups would be held responsible.

When asked what kinds of punishments were being considered for the court, he said that imprisonment for life or for shorter periods were being discussed, as well as fines and reparations to victims. While the death penalty was an option, there were many countries that had abolished the use of the death penalty nationally. Those States would probably not accept the death penalty in the court.

Asked about jurisdiction and the extradition of prisoners, he said the court would work on a treaty-based system that would set out the relationship

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between the court and national systems. If the State becomes a party to the treaty, the State would have to yield to the court's jurisdiction if requested. Because the word "extradite" was used in situations between two States, it would not be used in relation to a State and the court. In that case, a prisoner would be "transferred" from the State's jurisdiction to the court's.

A correspondent asked if the court would be set up in The Hague and if a treaty could be completed in the time allowed for the Conference. Mr. Corell said the Government of the Netherlands had offered to host the court at The Hague, but no decision on that had been made. On finishing on time, he said he was optimistic because the people working in Rome were very familiar with the issues and they were also used to working with each other. It was going to be very hard work, but it could be done if the political will was there.

Asked whether there would have to be ad hoc tribunals to relieve the court of its workload, he said that would have to be determined by the operation of the court and the treaty created in Rome. There was the hope, however, that the criminal court would serve as a deterrent to genocide and crimes against humanity. The mere existence of courts and legal systems was a major force in reducing crime.

Were there concerns that the court would be more effective in regions that were supporting its establishment compared to those areas that were opposed to it? a correspondent asked. Mr. Corell said States that were hesitant to accept the court might be more willing to support it when they see its operation and structure. Member States would eventually realize that cooperation in an international legal system was necessary, as was cooperation in many other situations. Crimes of genocide and crimes against humanity affect everyone regardless of where they live.

When asked questions on whether the court would handle only future cases and would not address past crimes, he said that no precise answer to that could be given before the Rome Conference, but the draft statute indicated that was the case. The problem with addressing past crimes was deciding which would be prosecuted and which would not.

How will the court determine who was responsible for crimes of genocide when there were many people involved in the crime? a correspondent asked. Mr. Corell responded that it would be for the prosecutor to single out a particular person responsible. In principle, everyone in the line of command was responsible, from the person who committed the act to the person who gave the orders. Since it was inconceivable that an international court could try hundreds or more people, it would have to focus on the major perpetrators. The prosecutor would be the person who specifies an individual responsible, regardless of who initiates the case.

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