UNITED STATES APPEALS IN SIXTH COMMITTEE FOR SUPPORT OF OTHER NATIONS TO RESOLVE 'SUBSTANTIVE PROBLEMS' OF CRIMINAL COURT STATUTE

Press Release
GA/L/3116

UNITED STATES APPEALS IN SIXTH COMMITTEE FOR SUPPORT OF OTHER NATIONS TO RESOLVE 'SUBSTANTIVE PROBLEMS' OF CRIMINAL COURT STATUTE

Rome Statute Is Flawed, Says US Representative: Inadequate Jurisdictional Safeguards Place Humanitarian Efforts at Risk

The United States was engaged with other Governments on issues of great importance that must be resolved before it could consider signing the Statute of the International Criminal Court, said that country’s representative to the Sixth Committee (Legal) this afternoon, appealing for cooperation: “There is much at stake here, and we solicit your support in resolving the substantial problems of the treaty.”

Explaining her Government’s misgivings about the Statute elaborated by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, 1998), the United States envoy said that the Rome treaty was flawed and risked undermining the goals it purported to advance. The Court’s inadequate jurisdictional safeguards -- especially as applied to nationals of States that had not joined the treaty -– risked inhibiting responsible international military efforts in support of humanitarian peacekeeping objectives, she said.

The representative of China said that his country was prepared to join in the effort to set up the Court and promote its universality and authority. China had also been actively participating in the work of the Court’s Preparatory Commission. Commenting on the Commission’s work in defining the elements of crimes, he cautioned that any attempt to lower or raise the thresholds by which crimes were defined, or to expand or limit the jurisdiction of the Court, would only weaken the Court’s ability to suppress the most serious crimes and would run counter to the original purpose of the international community in establishing the Court.

Both the United States and Chinese speakers said that any definition of the crime of aggression should take into account the role of the Security Council and the provisions of the Charter. The United States representative specified that an acceptable definition would have to recognize the limitations imposed by the Charter, as well as practical limitations that reflected the need for the international community to respond to humanitarian and other crises without being harassed and charged with Charter violations. The representative of Libya said that a definition of the crime of aggression

Sixth Committee - 1a - Press Release GA/L/3116 13th Meeting (PM) 21 October 1999

should include such elements as military attacks on civilians, intentional killing and the forced transfer of populations within or outside occupied territories.

Statements were also made by the representatives of Thailand, Sudan, Mongolia, and Ukraine. The observer for Switzerland also spoke.

The Committee will continue its discussion of the International Criminal Court when it meets next, at 3 p.m. tomorrow, Friday, 22 October.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to continue its discussion of progress made by the Preparatory Commission for the International Criminal Court, which was established by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, 1998) to prepare for the establishment and coming into operation of the Court.

The Committee has before it reports of the proceedings of the Preparatory Commission at its first and second sessions in 1999 (documents PCNICC/1999/L.3/Rev.1 and L.4/Rev.1). At its first two sessions, the Preparatory Commission focused on drafting two instruments necessary for the functioning of the Court -- the Rules of Procedure and Evidence and the Elements of Crimes. With regard to the latter, the Preparatory Commission concentrated on the elements of war crimes. It also held informal consultations on the crime of aggression, and agreed that at its next session (29 November to 17 December) it would set up a working group to work out a definition of that crime.

(For further details, see Press Release GA/L/3114 of 20 October.)

Statements

MANOP MEKPRAYOONTHONG (Thailand) said his country was heeding the call for States to become parties to the Rome Statute, so that there would no longer be impunity for perpetrators of the most serious crimes of concern to the international community. For a number of States, including his own, the Rules of Procedure and Evidence being drafted by the Preparatory Commission would be a crucial yardstick by which to determine whether it was feasible to assume the obligations of the Statute.

He urged that the Elements of Crimes reflect, rather than depart from, contemporary international law. If lacunae existed, he hoped that they would be filled in such a manner as to facilitate and not impede the rendering of international criminal justice by the Court.

Above all, he said, the June 2000 deadline for completion of the Commission's work, must be adhered to. He expressed appreciation to the various bodies, including the International Committee of the Red Cross (ICRC), which had played an important role in conducting research and presenting an impressive compilation on elements of crimes, particularly war crimes, under prevailing law.

HASSAN ALI HASSAN (Sudan) said that his country fully supported the establishment of the Court. Despite its achievements to date, the Preparatory Commission still had arduous tasks ahead of it. Those tasks could be accomplished if States which signed the Rome treaty approached the work in a positive spirit.

The Sudan would like to see the crime of aggression properly defined. Conditions attached to the language of the Statute should be deleted. The application of the provisions should be unconditional, and formulas found that were acceptable to all. The crime of aggression had been defined by a General Assembly resolution; it was also mentioned in the Charter. Those texts could provide a solid basis for the search for a definition by the Preparatory Commission. The sovereign equality of States should be respected, irrespective of State affiliations. The Preparatory Commission should be given more time to complete its work. The absence of a provision on the crime of aggression would be tantamount to a failure to draw lessons from history. There should be no altering of the Statute's language in the Elements of Crimes now being discussed in the Commission.

Perpetrators of genocide, crimes against humanity and war crimes would not escape justice once the Court began to function, he said. They should be treated equally, irrespective of their nationality or country of origin.

JARGALSAIKHANY ENKHSAIKHAN (Mongolia) said the successful completion of the Preparatory Commission’s work would accelerate the process of signing and ratification of the Court’s Statute. The creation of a viable and credible Court would deter the commission of the heinous crimes of genocide, crimes against humanity and war crimes and promote the bringing to justice of their perpetrators.

On the Rules of Procedure and Evidence being drafted by the Preparatory Commission, he said the right balance should be achieved between the rights of victims, suspects and the accused in order for justice to be carried out and basic human rights protected. With respect to Elements of Crimes, he said that possible crimes that were not sufficiently defined in the Statute should be clarified in that text as much as possible. Mongolia therefore welcomed the decision to establish a working group on the crime of aggression at the next session of the Commission. Mongolia had consistently supported the view that the crime of aggression should be clearly defined and reflected in the Statute. It hoped the working group would accomplish its task before June 2000.

The Preparatory Commission should be given high priority in the allocation of time and resources, he went on. A third three-week session next year should not be ruled out. If the need arose, intersessional meetings should also be envisaged. His Government was completing the translation of the text of the Statute into Mongolian. It intended to sign the Statute in the near future and to present it at the State Ikh Hural (parliament) for ratification.

GAO FENG (China) said his country had taken an active part in the formulation of the Rules of Procedure and Elements of Crimes. He was satisfied with the progress made so far and appreciated the positive and constructive approach taken by all members of the Commission. Referring to the Elements of Crimes, he said the letter and spirit of the Statute with regard to crimes under the jurisdiction of the Court should be fully respected. Further, the constituent elements of crimes must be described in accurate terms. The document should also reflect the Court’s objective of suppressing the most serious international crimes. Only by strictly abiding by those principles, could the Elements of Crimes accurately reflect the spirit of the Statute and enjoy universal acceptance. Any attempt to lower or raise the thresholds by which crimes were defined, or to expand or limit the jurisdiction of the Court, would only weaken the Court’s ability to suppress the most serious crimes and would run counter to the original purpose of the international community.

The elaboration of Rules of Procedure and Evidence was complex; it called for a harmonization of different legal systems and rules of nations. The document was highly technical in nature. It needed to be as comprehensive as possible, while at the same time providing for flexibility. Any irrational provision could create a serious imbalance among the rights and obligations of the parties concerned and, again, could run counter to the purposes and objectives of the Court.

In welcoming the establishment of a working group on the crime of aggression, he said that crime was among the most serious of international crimes and should definitely be suppressed. Defining the crime, though, involved sensitive political and legal issues; the definition must respect the role of the Security Council and adhere to the principles of the Charter. Given the amount of work that remained to be done on outstanding issues, he favoured extending the duration of the Commission’s sessions. China was ready to join in the effort to set up the Court and to promote its universality and authority.

CAROLYN WILLSON (United States) said her country’s concerns about the Rome Statute remained as serious today as they had been throughout the negotiating history of that instrument. A serious gap continued to exist between the noble aims of international justice embodied in the Rome treaty -— aims the United States had long supported -— and the responsibility shared by so many in the United Nations for maintaining international peace and security. The United States supported the establishment of a properly constituted court, to bring to justice the perpetrators of the most serious criminal violations of international law, but the current Statute was flawed and risked undermining the goals it purported to advance. “The Court’s inadequate jurisdictional safeguards -— especially as applied to nationals of States that have not joined the treaty -— risk inhibiting responsible international military efforts in support of humanitarian or peacekeeping objectives, and, for this reason, the United States cannot sign the treaty”. Citing the challenges of humanitarian crises, she said: “The Rome treaty risks becoming only a rhetorical milestone in international relations unless it confronts the reality of how the international system must function if peace, security and human rights are to have a lasting chance.

Describing discussions during the first two sessions as “frank and useful”, she said that only through a resolution of the fundamental jurisdictional problems could the United States sign the Statute. It could not recognize the Court’s competence in bringing prosecutions against United States personnel engaged in official actions when the United States Government was not a party to the Statute. “At the same time, we are optimists, and are hopeful that our fundamental concerns will be addressed.”

The seven groupings of war crimes that had been incorporated in the rolling text of the elements of crimes were satisfactory and merited universal support, she said. There was a basis for resolving differences over the article on the transfer by an occupying power of parts of its own population into the territory it occupied. The elements for that war crime, which no one was seeking to amend, should reflect customary international law and the common sense of governments engaged in critical negotiations for lasting peace in the Middle East. History would condemn any strategy designed to project a political agenda for that war crime. The only credible course of action was to incorporate into the elements well known principles of international law and then articulate common sense exceptions that were recognized in the Geneva Conventions and elsewhere.

Concerning provisions on victims in the Rules of Procedure and Evidence, she expressed concern that expansion of their right to intervene in proceedings would adversely burden or slow the proceedings. Victims should not become co-prosecutors; their participation should not hamper the ability of the court to adjudicate guilt or innocence effectively and speedily. An acceptable definition of the crime of aggression would have to recognize the limitations imposed by the Charter, as well as practical limitations that reflected the need for the international community to respond to humanitarian and other crises without being harassed and much worse, charged with Charter violations. In conclusion, she said, the United States was engaged with other governments on issues of great importance that must be resolved before it could consider signing the Statute. “There is much at stake here, and we solicit your support in resolving the substantial problems of the treaty.”

VASL KORZACHENKO (Ukraine) announced that a formal decision had been made for his country’s Ambassador to the United Nations to sign the Statute on behalf of his Government. He saluted the intensive work undertaken to implement the decisions of the Rome Conference and make the Statute’s provisions operational.

He stressed the importance of safeguarding the integrity of the Rome Statute as a guiding principle for the work of the Preparatory Commission. Conflicts between the Statute and the Rules of Procedure and Evidence or the Elements of Crimes must be avoided. He also said that the need to meet the deadline of 30 June 2000 set for drafting of those two documents should not lead to any distortions in the Commission’s work, especially in the final stages.

The decision to establish a working group to elaborate a definition of the crime of aggression gave impetus to the drafting of language on the subject, he said. The system of international criminal justice based on the Rome Statute would be incomplete without the definition of that crime, which Ukraine considered to be the gravest of all international crimes.

A. SERGIWA (Libya) said his country supported the establishment of the International Criminal Court to judge individuals who perpetrated crimes against humanity. It had organized seminars on the Court, and hoped the Court would not be driven by political considerations to injure its impartiality and independence.

He hoped there would be no linkage between the actions of the Security Council under Chapter VII of the Charter and the jurisdiction of the Court. The Council should have no mandate in the Court’s handling of cases. Libya also hoped that the working group on the crime of aggression would be able to come up with a definition of the crime that included military attacks on civilians, intentional killing, maiming, biological tests and forced transfer of populations within or outside occupied territories.

The Preparatory Commission had difficult tasks ahead, and Libya trusted that it would be given more resources to complete the first part of its mandate by the specified date of 30 June 2000. He also hoped States would make contributions to the trust fund established by the General Assembly to ensure participation in the Commission’s work by representatives from least developed and other developing countries.

VALENTIN ZELLWEGER, observer for Switzerland, said that while it was important to safeguard the integrity of the Statute, that did not exclude the possibility that current documents being formulated by the Commission might help to clarify imprecisions or fill gaps in that treaty. Any attempt at clarification, though, should not entail a reopening of the Rome debate nor the renewed presentation of proposals that had already been rejected. He was reassured that his view seemed to be shared by the majority of States, he said.

He said his country was generally pleased with the progress made on the work on Elements of Crimes. Switzerland wanted to see that as many Member States as possible profited from participation in the work on that subject. It was dedicated to finding consensus solutions that reflected contemporary standards with respect to armed conflicts and human rights. Defining the elements of crimes should not be used as a pretext to question the gains of international humanitarian law. It would be regrettable if a treaty designed to strengthen international law instead ended up weakening it.

He said that efforts to make the Rules of Procedure and Evidence precise and complete were commendable but made the task more difficult. It would be best to complement the Statute with subsidiary rules that would facilitate the task of the Court. The Court should have procedures that respected the rights of both the accused and the victim. To achieve that objective, and still respect the spirit of the Statute, the Commission should concentrate on what was essential. It was important to have rules of procedure that allowed for flexibility; otherwise the Court ran the risk of being buried under a mountain of rules before it even began its work. Meanwhile, six other draft instruments had yet to be prepared for the Court’s functioning. Among those, the settling of the financial matters of the Court was of concern to certain States interested in ratifying the treaty.

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