STATES WARN LEGAL COMMITTEE THAT NEW INTERNATIONAL CRIMINAL COURT MUST NOT BE ABUSED FOR POLITICAL ENDS

Press Release
GA/L/3117

STATES WARN LEGAL COMMITTEE THAT NEW INTERNATIONAL CRIMINAL COURT MUST NOT BE ABUSED FOR POLITICAL ENDS

As the Sixth Committee concluded its discussion of the work of the Preparatory Commission of the International Criminal Court (ICC), speakers again urged early ratification of the Court’s Statute and stressed that the Court must not be used as a political tool.

Calling for mutual cooperation among all nations, regardless of political, economic, social or cultural differences, the representative of Indonesia said: “If we are to learn from past experience, then we should make sure that the ICC does not become a mechanism established simply to be used for interfering in the internal affairs of a State”.

Also citing the lessons of history was the representative of Israel, who noted that fully one third of the Jewish people had been exterminated during the Second World War, because the current international determination that was culminating in the establishment of the Court had not existed at that time. “We cannot overestimate the determination of the international community today not to stand by silently when crimes of genocide, war crimes and crimes against humanity are committed", she said.

The Preparatory Commission has been working on finalizing the Rules of Procedure and Evidence under which the Court will function and on elaborating an Elements of Crimes text that will guide its work.

In the context of the Commission’s work on the elements of crimes, the Israeli speaker said the Statute of the Court must not be abused for political ends: “This Court is too precious. The international community should not allow it to be blemished by any political agendas”. Referring to comments by other delegations on the elements of the war crime of transfer of populations in occupied territories, she said its key elements should be based on the established framework of international law and not on the political wishes of specific States.

During a round of statements in exercise of the right of reply, the representative of Lebanon said that Israel had committed the crime of displacement; it should not go unpunished. It was a serious violation of human rights, international customary law and the Geneva Convention. It should be deemed a crime by the new Court.

Sixth Committee - 1a - Press Release GA/L/3117 14th Meeting (PM) 22 October 1999

The representative of Kenya, pointing to the complexities of national legislation needed to complement the mandate of the Court, appealed to non- governmental and intergovernmental organizations to extend support to his subregion so that it could mobilize the political, moral and social will for early ratification of the Statute.

Statements were also made by the representatives of Liechtenstein, Uganda, Slovenia, Poland, Madagascar, Trinidad and Tobago, Burkina Faso, Bangladesh, Bulgaria, Haiti and Syria. An observer for the International Committee of the Red Cross (ICRC) also spoke.

Statements in right of reply were made by the representatives of Israel, Syria and Lebanon.

The Committee will meet next on Monday, 25 October at 10 a.m., when it will begin consideration of the report of the Internationa1 Law Commission.

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

CHRISTIAN WENAWESER (Liechtenstein) said the Preparatory Commission must continue efforts to meet the deadline of 30 June 2000 for completion of the Elements of Crimes and Rules Of Procedure and Evidence. He saw flaws and deficiencies in some of the provisions, but those were minor in comparison to the unique overall achievement that the Rome Statute represented. The integrity of the Statute must be maintained. The Rules of Procedure and Evidence and Elements of Crimes must not restrict the Court’s ability to interpret applicable international law in accordance with the letter and spirit of the Statute.

The most important expression of political support for the Court was the signature and ratification of the Statute, he said. Along with the finalization of the work of the Preparatory Commission by June 2000, the early entry into force of the Statute was a major goal. Liechtenstein had signed the Statute in Rome and had a realistic hope of completing the ratification process by the end of next year.

He said that an effective international criminal court would possibly make the most important contribution to terminating the state of impunity that had prevailed for such a long time without being seriously challenged.

JULIET SEMAMBO KALEMA (Uganda) said her country had signed the Rome Statute on 17 March this year and was seriously working to complete the domestic procedures towards ratification it. Uganda had participated in two briefing sessions on the Statute hosted by the International Human Rights Law Institute of De Paul University and the Parliamentarians for Global Action, on 31 July and 7 August respectively, in New York. It had found the sessions very useful and informative.

She said her country was a beneficiary of the trust fund that enabled representatives of the least developed and developing countries to participate in the Rome Conference as well as in the work of the Preparatory Commission. She thanked Member States and De Paul University for their contributions to the fund.

Referring to the work of the Preparatory Commission, she said that despite the significant progress achieved, much remained to be done before the target date for completion of its work. Uganda pledged its continued support for the discharge of the Commission’s mandate.

FERRY ADAMHAR (Indonesia) said his country had been active in all phases of deliberations on the Court. It was still in the process of giving meticulous consideration to the Statute, seeking in particular an effective mechanism to disseminate its contents to almost 200 million Indonesians across 13,000 islands. It was imperative to give an opportunity to all Indonesians, particularly the ones potentially affected by the ICC, to know about the establishment of a new institution aimed at furthering justice.

Universal participation should be the cornerstone of the ICC, he said. The Court should be a product of mutual cooperation among all nations regardless of political, economic, social or cultural differences. Equally important was the need to scrupulously observe the precepts embodied in the Charter, such as consent, impartiality, non-discrimination, State sovereignty and territorial integrity. The ICC was intended to supplement and not supplant national judicial mechanisms. Therefore, it should only be able to exercise jurisdiction with the consent of the State concerned, and should refrain from handling a case that was already before national court.

“If we are to learn from past experience, then we should make sure that the ICC does not become a mechanism established simply to be used for interfering in the internal affairs of a state”, he said. The Court must function with a clear understanding as to what constituted a specific crime. The fact that the Statute had been adopted did not mean that the concerns of States who had not yet signed could be disregarded. The international community should strive for a broad-based Statute with wide acceptance and universal participation.

ANITA PIPAN (Slovenia) said the adoption of the Rome Statute had been an historic breakthrough. The Court would be an essential pillar of an emerging system of international justice that encompassed both national courts and international forums. It would be a powerful tool and would contribute to breaking the culture of impunity and replacing it with the culture of accountability.

The international community must build upon the current momentum and strive to fulfil the mandate entrusted to the Preparatory Commission, she said. It was important to adhere to existing priorities and complete the Rules of Procedures and Evidence and the Elements of Crimes. She recommended the holding of two more three-week sessions before June 2000 as well as a further session after that date.

It was important that an agreed definition of the crime of aggression be incorporated into the Statute in the near future in order to make the Court’s jurisdiction complete, she continued. Moreover, the possibility of a genuinely international prosecution of the crime of aggression would serve as a powerful deterrent against the illegitimate use of force by States. The completion of the Rules and the Elements must go hand in hand with efforts to universalize acceptance of the Court. Slovenia considered ratification of the treaty to be an important human rights priority and had undertaken an internal legislative procedure towards ratification.

FARES M. KUINDWA (Kenya) said the great amount of work already accomplished bore testimony to the importance that the international community attached to the ICC. Kenya had been the eighty-fourth State to sign the Statute. Kenya’s experience in cooperating with the Tanzania-based Tribunal on Rwanda had shown that it was possible to cooperate with the Court even without the necessary domestic legislation in place. He foresaw no major problem in cooperating with the Criminal Court once it became operational.

He noted that at the last session of the Preparatory Commission, 45 per cent of the assigned work had been accomplished and 60 per cent of the allocated time had been utilized. He supported the proposal for additional meetings. For the Court to become operational as soon as possible, it was essential to complete the Rules Of Procedure and Elements Of Crimes. A definition of the crime of aggression must also be given priority. Notwithstanding the sensitivity of that issue, a compromise formula could be worked out without eroding the core of the crime itself.

In the light of the complexities of national legislation needed to complement the mandate of the Court, he appealed to NGOs and intergovernmental organizations to extend support to his sub-region so that it could mobilize the political, moral and social will for early ratification of the Statute. He also appealed for further contributions to the trust fund for least developed countries to ensure the required level of participation.

PIOTR OGONOWSKI (Poland) said a new culture of respect for the rule of law must be developed. It was encouraging that nearly 90 States, including his own, had signed the Rome Statute. The Statute’s provisions were being analysed in his country with a view to their incorporation into domestic law. He said the Polish Criminal Code already contained specific provisions relating to the crime of genocide, aggression, crimes against humanity and war crimes.

Poland agreed that the Preparatory Commission should hold two meetings of three weeks each in the year 2000 prior to the deadline of 30 June set by the Rome Conference. Another session should also be held thereafter work on other documents necessary for the proper functioning of the Court, he said.

On the Commission’s future work on the crime of aggression, he said a clear message must be given that aggression was not only prohibited by international law but was also a punishable crime. Serious consideration should be given to the elaboration of a definition of that crime; discussions of the issue should be entirely from a legal standpoint. One of the major challenges ahead would be to ensure the universality of the Statute. Its effectiveness would largely hinge on the level of support it received. Efforts to secure the widest participation in the Statute should be continued.

JEAN DELACROIX BAKONIARIVO (Madagascar) said this century had seen atrocious crimes committed –- crimes that defied the imagination and shocked the conscience. The world had witnessed genocide, massacres, forced disappearances and other grave violations of human rights. Through the adoption of the Rome Statute, the world now had a unique opportunity to remedy the situation and put an end to impunity for such atrocities committed by individuals. The establishment of the ICC was a source of hope for coming generations and a milestone in promoting respect for human rights and the rule of law.

He applauded the constructive spirit that had prevailed in the Commission’s deliberations. Given the complexity of the issues being dealt with, he encouraged Member States to take one another’s concerns into consideration so that differences could be reconciled. Finalizing the Rules of Procedure and Elements of Crimes was essential. In that context, the intersessional meetings had been very useful as they had allowed in-depth consideration of various chapters of the Rome Statute.

Madagascar attached high priority to the elaboration of a definition of the crime of aggression, as it was the “mother of all crimes”. Furthermore, for some States, ratification of the Statute would depend upon the defining of that crime. He appealed for a solution to be found before the deadline of 30 June 2000; it was important that consensus be reached on outstanding issues before them. In that context, he supported the proposal to use General Assembly Resolution 3314 (XXIX) as a basis for discussions. As a signatory to the Statute, Madagascar was considering a constitutional procedure that would allow for ratification.

GAILE A. RAMOUTAR (Trinidad and Tobago), on behalf of the Caribbean Community (CARICOM), said that great strides had been made by the international community in its effort to put in place a permanent international institution to bring to justice individuals responsible for the most heinous crimes that shocked the conscience of humankind.

She welcomed the broad participation in the work of the Preparatory Commission and the constructive manner in which it had proceeded during its first two sessions. Intersessional seminars on the Rules and Elements had helped advance its work.

It was important that the integrity of the Statute be preserved throughout the deliberations, she said. Legal experts from 10 CARICOM States had met a conference in March of this year to study implementing legislation and ratification procedures. Although internal parliamentary procedures for ratification were lengthy and complex in some cases, the process had begun in many States. She encouraged those who had not yet signed the Statute to do so.

TRAORE ALAIN EDOUARD (Burkina Faso) reaffirmed his country’s support for the codification of rules for the functioning of the Court. He hoped those rules would not be appropriated by others for other purposes. Judgements by the Court, when established, should not be selective but should cover criminals of all countries. No State or group of States should be allowed to use the Court for its purposes; otherwise, the efforts underway to an impartial Court would be in vain.

Burkina Faso was concerned about the tactics being used by some to delay work on the crime of aggression, he said. That subject should be given priority.

His country had participated in the work leading to the adoption of the Rome Statute. He commended the Preparatory Commission's Chairman for the work undertaken so far towards the establishment of a Court that would serve humankind.

ALLIEU KANU (Sierra Leone) said that he had not intended to address the Committee, but he wished to announce that a new Government, representative of Sierra Leone society, including former rebels responsible for heinous crimes, had just been formed yesterday. The inclusion of representatives of the rebel groups in Government did not mean their acts were supported or condoned.

Civilian populations in Africa continued to bear the brunt of heinous crimes, he said. Sierra Leone was looking forward to the coming into being of the International Criminal Court. His delegation would not allow the emotions of Sierra Leone’s experience to stand in the way of a consensus on the definition of the crime of aggression. Sierra Leone supported the establishment of the Court, and had been among the first States to sign the Statute. He appealed to Committee members to impress on their respective Governments the urgency of signing and ratifying the Statute, as that would send a clear message that perpetrators of heinous crimes would no longer have a place to hide. He said his Government would soon begin the process of ratification of the Statute now that there was peace in the country, however fragile.

ANWARUL KARIM CHOWDHURY (Bangladesh) said his country attached importance to the establishment of the Court since it had been a victim of genocide during its liberation struggle in 1971.

Bangladesh had embarked upon the ratification process, which involved difficult technical matters and important legal implications at the domestic level, he noted. His country, like other least developed countries, might need technical cooperation in order to complete that process, as well as to assist it the implementation of the Statute in future.

He said that the Rules of Procedure and Evidence and the Elements of Crimes should respect fully the letter and spirit of the Rome Statute to ensure fairness and effective functioning of the Court. Furthermore, the Elements of Crimes should describe in clear terms the crimes under the Court’s jurisdiction, taking account of international humanitarian law.

DR. KATIA TODOROVA (Bulgaria) said that by setting up the Court, the international community confirmed the law as a means for ensuring peace, security and well-being in the world, and for imposing international justice through punishment and prevention of the crimes within its jurisdiction.

Bulgaria had signed the Statute, he continued. The ratification of the Statute, though, from a legal and technical point, would depend on legislative changes in the Bulgarian Criminal Code and in the code of criminal procedure. His Government was undertaking appropriate measures to ensure a legal basis for incorporation and implementation of the Rome Statute. He anticipated that the process would be finished by the end of the year 2000.

ESTHER EFRAT-SMILG (Israel) said that given the history of the Jewish people in the last century, prominent Jewish and Israeli jurists and statesmen had been among the first to advocate the establishment of an international criminal court. “We cannot overestimate the determination of the international community today not to stand by silently when crimes of genocide, war crimes and crimes against humanity are committed.” Fully one third of the Jewish people had been exterminated in the Holocaust during the Second World War, only because such international determination had not existed at the time.

It was only because of the importance Israel attached to the Court that it had expressed some concerns about the Statute been unable to sign it before. Questioning whether the “crime of transfer” [of population] really ranked among the most heinous and serious of war crimes, she said the Statute must not be abused for political ends. “This Court is too precious. The international community should not allow it to be blemished by any political agendas.”

Calling comments by other delegations on the "war crime of transfer", she said that its key elements should be defined on the basis of the established framework of international law and not the political wishes of specific States. That framework was based on Article 49 of the Geneva Convention. Hence, a basic element of the crime must be that the transfer was in violation of that provision. The addition in Rome of the phrase, “directly or indirectly”, had no basis in the established framework of international law. It could be only explained as politically motivated, and therefore extraneous to the aims of the Rome Statute. Israel would continue to participate actively in the deliberations of the Preparatory Commission and work constructively to try to reach results that reflected agreement by all.

BOCCHI EDMOND (Haiti) said the establishment of the ICC owed to of the international community’s determination to put an end to impunity. The need for the Court was now unquestioned because of the atrocities that the world had witnessed. Despite its importance, however, only 88 countries had signed the Statute and only four had ratified it. The ratifications would depend to a large extent on how compatible the Statute was with national legislation. The ratification of the Rome Statute was particularly complicated; he therefore welcomed the offer of the European Union to share its ratification expertise.

Haiti supported the primacy of the Statute concerning the Rules of Procedure and Elements of Crimes, he said. Those two documents should in no way affect the Statute. Haiti had been closely following the work of the working groups. It was particularly interested in the definition of the crime of aggression.

He supported the holding of two meetings of the Commission before the June deadline. Although much progress had been, he noted that only 45 percent of the work had been accomplished in 60 percent of the time allotted to the PrepCom.

GHASSAN OBEID (Syria) said his country looked forward to seeing the results of the Preparatory Commission’s work crowned by the establishment of a court that would be permanent and totally independent, and not subject to external political pressures. It should try cases without discrimination on the basis of religion or nationality. The crime of aggression was more important than other offences in the Elements of Crimes. Successful completion of work on its decision would encourage more States to sign and become parties to the Statute.

He said his region had witnessed injustices under Israeli occupation and populations there were still suffering. Security Council resolutions urging withdrawal of the occupiers had gone unheeded. Heinous crimes were being perpetrated against the occupied populations, some of whom were being displaced by the occupation army.

He said the relationship between the future Court and the Security Council should be made clear. The Court should not be a subsidiary body of the Council. The crime of aggression should come under the Court’s jurisdiction. The 1974 General Assembly resolution on aggression could provide a basis for the work on the definition of the crime of aggression. Syria did not deny the Security Council role in dealing with the issue of aggression, provided the question was not politicized. Syria would be flexible in the search for an acceptable definition.

STEPHANE JEANNET, observer for the International Committee of the Red Cross (ICRC) said the existing system for the supression of war crimes was still all too often ignored. The Court would help make that system more effective. Expressing the hope that the Statute would soon enter into force, he said it was the wish of the ICRC that States refrain from declaring that they did not accept the jurisdiction of the Court for a period of seven years with respect to war crimes alleged to have been committed by their nationals or on their territory.

He said that the ICRC, through its advisory services, would continue and further develop its efforts to assist States in adopting and implementing national legislation for the prosecution of war criminals in general and in ratifying the Rome Statute in particular.

On the drafting of the Rules of Procedure and Elements of Crimes, he said it was essential that existing international humanitarian law be properly reflected in those instruments. As a contribution to that aim, the ICRC had prepared an extensive study of relevant international and national case law on the elements of war crimes. That study would be completed in time for the Commission’s next session. If carefully drafted, Elements of Crimes, although not legally binding on judges, might nonetheless become an important tool for ensuring that the law was uniformly applied on the international level and probably on the national level as well.

Rights of reply

ESTHER EFRAT-SMILG (Israel), speaking in exercise of the right of reply, said that the statement by the representative of Syria was indicative of the kind of dangers the Court would face. There was no need for another United Nations forum to echo the political deliberations going on elsewhere.

MR. OBEID (Syria) said his statement described facts that had been established in the two sessions of the Preparatory Commission. The objective was to fashion rules that would adhere to international law and the Geneva Conventions. If anything new had been said, it applied to those who had committed crimes and were trying to adapt the law to suit those crimes. Crimes were being committed daily in the occupied Syrian Golan and in the Palestinian lands. The Rome Statute contained a provision on the movement of populations under occupation. There was no connection between the discussions in this Committee and the negotiations between Israel and the Palestinians, which had been delayed because of the stubbornness of Israel.

HOUSSAM ASAAD DIAB (Lebanon), also exercising the right of reply, said Israel had committed odious crimes. The crime of displacement of the civilian population, which the representative of Israel did not consider important, had been committed by the Israeli Government. It should not go unpunished. The Secretary-General had stated in one of his reports that Israeli occupation had created countless victims and caused untold suffering to the people of Lebanon. The economy of Lebanon had been severely damaged. He reaffirmed the need and the importance of having a legally acceptable definition of the crime of aggression and its elements. That crime was a serious violation of human rights, international customary law, and the Geneva Convention. It should be deemed a crime by the ICC.

MS. EFRAT-SMILG (Israel) reiterating her earlier statement, said a new United Nations forum was needed for a repetition of statements being made elsewhere. MR. OBEID (Syria) said Israel did not want the Court’s jurisdiction to cover crimes of occupation. The Court would not become a new United Nations. Israel did not want to be party to the Statute because it wanted a free hand to perpetuate its occupation activities.

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