PRESS CONFERENCE ON INTERNATIONAL CRIMINAL COURT

The Preparatory Commission for the International Criminal Court (ICC) had completed all tasks given to it by the Rome Conference, its Chairman, Philippe Kirsch (Canada), told correspondents this afternoon at a Headquarters press conference.

Those tasks concerned preparations for the entering into force of the ICC Statute and had also included a number of new tasks to prepare for the First Assembly of States Parties and to ensure that the International Criminal Court, when it begins to operate, had the necessary tools to operate effectively, he continued.  Now that the work of the Preparatory Commission was over, the first meeting of the Assembly of States Parties would take place in September and would presumably endorse the instruments proposed by the Preparatory Commission.  It would also develop rules for nomination and election of judges, which was the one task the Commission had been unable to complete.  A second meeting of the Assembly of States parties would probably take place in February 2003, during which the prosecutor and judges would be elected.  The inaugural meeting of the Court would take place a couple of months after that in The Hague.

Answering a correspondent’s question about the difficulties in completing the rules for nomination and election, Mr. Kirsch said the Statute had provided for specific requirements in terms of professional background for judges, and also for a general, non-specified balance based on geographical and gender distribution.  The working group of the Preparatory Commission dealing with the Assembly of States Parties had not been able to agree on specific criteria on geographical distribution.  That issue would have to be resolved by the Assembly of States Parties.

Mr. Kirsch said he could not comment on the specific language of the proposed resolution in the Security Council that would defer investigation and prosecution of United Nations peacekeeping mission personnel for 12 months if such a case arose, as the process was not yet finished.  Generally speaking, however, the concern of the United States about political prosecutions was entirely legitimate and also shared by all its allies.  The ICC Statute, however, kept the primary responsibility of prosecution to the States concerned. Only in cases where the States did not perform their responsibilities, because they were unwilling or unable to do so, would the Court take over.  It was difficult to imagine that the United States, with its well-functioning judicial system and democracy, would not deal with war crimes committed by its peacekeepers.

He said many States had wanted to ensure that the Court would be a purely judicial body, not a political one.  That was why the Statute was full of safeguards to protect the rights of the accused, the States concerned and the victims with which the United States had never demonstrated a problem.  The Security Council’s jurisdiction was based on the existence of the threat to peace and security.  In the case of the International Criminal Court, that threat to peace and security could not be found.  Moreover, if the outcome of the Security Council deliberations were not consistent with the Rome Statue, the Council would

be rewriting a treaty concluded among States, which had immense support, and were unrelated to peace and security.  A broader issue, legally, was the harm it did to the principle of "equality of all before the law", one of the pillars of the ICC Statute.

The whole issue had very little connection with peacekeepers, he said.  There had been no crimes ever committed by peacekeepers coming close to the crimes described by the Statute.  If peacekeepers had not committed crimes since the beginning off the United Nations, why should they choose this particular moment to start doing so? he asked.  Action at this point by the Security Council would not affect the Court, but much more the credibility of the Council itself.

The principle of equality before the law had been accepted by everybody involved in drafting the Statute, including the United States, because the legal safeguards in the Statute were sufficient to protect against political undertakings.  If the jurisdiction of the Court was triggered by the prosecutor or a signatory State, the consent of either the State of nationality of the accused or the State of the territory where the crime was committed was required.  That requirement was simply the application of traditional criminal law and was also applied in extraditions.  The argument that the Statute bound States not party to the treaty was, therefore, a wrong argument.  Principles of criminal law that would have been applied in any case for decades would have to be applied in cases involving non-party States.

The ICC Statute had a provision under which the Council could request the Court to suspend investigations, if the Council was seized by a particular issue under Chapter VII of the Charter.  The rationale of that provision was that actions of the Court could have an impact on negotiating processes in situations where there was a threat to peace and security.  After 12 months, the Council would have to give a positive indication for the renewal of such suspension.  That kind of situation did not exist now, and such deferment should not be automatic.

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