Fifty-seventh General Assembly

Sixth Committee

13^th & 14^th Meetings (AM & PM)

INTERNATIONAL CRIMINAL COURT HAS SAFEGUARDS AGAINST MISUSE, LEGAL

COMMITTEE IS TOLD; CONCERNS OF DOUBTERS CAN BE ADDRESSED

Most Delegates Express Support; United States, Dissenting, Cites

Problems of Jurisdiction, Due Process, Lack of Security Council Oversight

The Rome Statute of the International Criminal Court provided all the necessary safeguards against the misuse of the Court for politically motivated purposes, Denmark’s representative told the Sixth Committee (Legal) today as it began its consideration of the establishment of the Court.

Speaking on behalf of the European Union and associated States, she said the Union was ready to address concerns of those still hesitant towards the Court.  Frank and constructive dialogue could take place while preserving the integrity of the Rome Statute.  The objective of individual accountability for the most serious crimes of concern to the international community must not be compromised.

The representative of the Unites State said his country’s decision not to be a party to the Statute should be respected.  There was concern about politically motivated prosecutions.  There were also problems related to jurisdiction and due process.  In addition, the Court was not part of the United Nations Charter system; there was too little opportunity for Security Council oversight.

Brazil’s representative said he was convinced that the Court’s claim to universality was firmly rooted in the elaborate system of checks and balances built into the Rome Statute.  The regime provided the necessary safeguards against possible abuse and politically motivated misuse of the Court’s jurisdiction.

The majority of speakers supported the Court and Rome Statute.  Some said their countries would be paying their assessments to the Court shortly.  Switzerland's representative said his country would also be contributing to the Operating Fund.  Others said their countries were taking steps to harmonize domestic legislation with the Statute.  Still others were in the process of signing the Agreement on the Court’s Privileges and Immunities or ratifying the Statute.

The observer of the International Committee of the Red Cross called for the broadest possible political and financial support for the Court to ensure its independence and universality.  Its Prosecutor and Judges must be persons with the highest competence and integrity, being drawn from a broad spectrum of States, cultures and legal systems.

Philippe Kirsch, Chairman of the Preparatory Commission, said it was a remarkable hallmark of the Commission’s work that all instruments and documents had been adopted during the preparatory process without a vote.  A constructive atmosphere had characterized the whole negotiation process.  It would take time for the Court to become fully operational.  It was necessary to establish it on a solid footing in its early years.  Its success would depend on the support of all States and the public at large.

Zeid Ra’Ad Zeid Al-Hussein of Jordan, President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, summarized the highlights of the Assembly’s first meeting in September.  He noted that the resolution on the procedure for electing Judges had been finalized, opening the nomination period now running from 9 September through 30 November of the present year.

The importance of the first election could not be over-emphasized, he continued.  The election of Judges and the Prosecutor would take place during the Assembly’s first resumed session from 3 to 7 February 2003.  The Court was expected to be operational when Judges, the Prosecutor and key officials took up their posts next year.

Also speaking today, at two meetings of the Sixth Committee, were the representatives of the Philippines, New Zealand, Norway, Japan, Liechtenstein, Switzerland, Cyprus, Chile, Mozambique, South Africa, Sierra Leone, Venezuela, Jordan, Uganda, Bulgaria, Cuba and Peru.

The Committee will meet again at 10 a.m. tomorrow, Tuesday 15 October, to continue its consideration of the establishment of the International Criminal Court.

Background

The Sixth Committee (Legal) met this morning to begin its deliberations on the International Criminal Court.

The Committee has before it the Secretary-General's report on establishment of the International Criminal Court (document A/57/403).  In it, the Secretary-General recalls that the Rome Statute entered into force on 1 July.  Following that event, the Court's Preparatory Commission held its final session and transmitted its report to the first meeting of the Assembly of States Parties to the Rome Statute, held at Headquarters from 3 to 10 September.

Summing up the Preparatory Commission's report, the Secretary-General says it enumerates elements relative to the Court's operation.  Among others, it contains the rules of procedure and evidence; the elements of crimes; a relationship agreement between the Court and the United Nations; and the basic principles governing a Headquarters agreement to be negotiated between the Court and the host country.  It also contains financial regulations and rules; an agreement on privileges and immunities; a budget for the first financial year; the rules of procedure of the Assembly of States Parties; and a number of other draft resolutions and recommendations.

The establishment of a trust fund had enabled the United Nations to defray the costs of its Secretariat providing secretariat assistance to the Assembly of States Parties, the report continues.  The decision was later made for the Secretariat to continue providing the assistance in 2003 on a provisional basis.  It was also decided that the Assembly would resume its first session twice, in February and April of 2003, and that it would hold its second session in September.  Its Committee on Budget and Finance would meet in August of that year.  Provision for all meetings had been made in the budget for the Court's first financial period, based on the understanding that they would take place at Headquarters.

Also before the Committee is a letter dated 9 July from the Permanent Representative of Denmark to the United Nations addressed to the Secretary-General (document A/57/208.  The letter states that the Council of the European Union had adopted a Common Position on the International Criminal Court.  It also states that all European Union member States had ratified the Statute and that an action plan had been adopted for follow-up to the Common Position.  An annex contains the eight articles setting out the Common Position.

Article 1 states that the objective of the Common Position was to support the Court and promote the widest possible participation in the Statute. 

Article 2 commits the Union to cooperative efforts in achieving universal ratification and implementation of the Statute, including by providing technical and financial assistance to required legislative work.  Article 3 commits the Union to giving support, including practical support, to the early establishment and full functioning of the Court, including by supporting the development and training of judges, prosecutors, officials and counsel related to the Court.  Articles 4 through 8 concern procedural measures relative to those articles.

International Criminal Court

The International Criminal Court is a permanent court with the power to investigate and bring to justice individuals who commit the most serious crimes of concern to the international community, such as genocide, war crimes and crimes against humanity.

In 1992, the General Assembly directed the International Law Commission to elaborate a draft statute for an international criminal court.  Public interest in the court was created by the Security Council’s establishment of the International Criminal Tribunals for the Former Yugoslavia in 1993 and for Rwanda in 1994.

In December 1994, the General Assembly established an Ad Hoc Committee, open to all Member States and members of specialized agencies, to review the final version of the International Law Commission’s draft statute.  In December 1995, the General Assembly created a Preparatory Committee to “discuss further the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and to draft texts, with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries”.

The first session of the Preparatory Committee took place at Headquarters from 25 March to 12 April 1996, and the second, also at Headquarters, from 12 to 30 August that year.  On 17 December 1996, the General Assembly renewed the Preparatory Committee’s mandate and decided that the diplomatic conference of plenipotentiaries should be held in 1998.  The Government of Italy renewed its offer to host the conference, proposing June 1998.  In 1997, the third session of the Preparatory Committee was convened at Headquarters from 11 to 21 February, followed by the fourth from 4 to 15 August, and the fifth, from 1 to 12 December.

The Preparatory Commission for the International Criminal Court was established at the end of the Rome Diplomatic Conference in July 1998.  It was charged with the task of finalizing critical documents that would determine how the Court would function.  It held eight sessions between February 1999 and October 2001.

The ninth session of the Preparatory Commission from 8 to 19 April was a historic one.  At a special United Nations event held simultaneously on

11 April, 10 instruments of ratification of the Rome Statute were deposited, bringing the total to well over the 60 required for entry into force of the Rome Statute.  The ceremony was officiated by Hans Corell, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel.  It was followed by a press briefing by the Secretary-General via video teleconference from Rome.

Statements

ARPAD PRANDLER (Hungary), Chairman of the Sixth Committee, said that since the debate on the International Criminal Court at the General Assembly’s last session, several significant developments had occurred on the item.

The Rome Statute of the Court had entered into force on 1 July 2002.  In accordance with General Assembly resolution 56/85, the Preparatory Commission for the Court, established pursuant to resolution F of the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries in Rome (June/July 1998), held its ninth and tenth sessions in April and July, respectively.  Consequently, the Preparatory Commission managed to complete its mandate in the preparation of various proposals for practical arrangements for the establishment and coming into operation of the Court.

He said the entry into force of the Rome Statute paved the way for the convening of the first session of the Assembly of States Parties, which met at Headquarters in New York from 2 to 10 September.

PHILIPPE KIRSCH, Chairman of the Preparatory Commission for the International Criminal Court, said that in its work the Commission gave priority to issues specifically identified as such in resolution F, and in particular the Rules of Procedure and Evidence and the Elements of Crimes.  Those were supposed to be finalized before 30 June 2000.  As it became clear that the Statute would enter into force much earlier than had been anticipated at the Rome Conference, the Commission prepared other proposals for practical arrangements for the establishment of the Court.

He said that by the conclusion of the tenth session, the Commission had completed the following documents identified specifically by resolution F:

(a)  The Rules of Procedure and Evidence;

                        (b)  Elements of Crimes;

(c)  A draft relationship agreement between the Court and the United Nations;

(d)  Basic principles governing a headquarters agreement to be negotiated between the Court and the host country;

(e)  Financial regulations and rules;

(f)  An agreement on the privileges and immunities of the Court;

(g)  A budget for the first financial year; and

(h)  The rules of procedure of the Assembly of States Parties.

He said the Preparatory Commission also adopted a report on the crime of aggression containing, inter alia, the discussion paper on the definition and elements of the crime of aggression prepared by the Coordinator of the Working Group on the topic at the Commission’s tenth session.

He also said that under the cluster of issues, the Commission prepared, in the form of draft resolutions and decisions, other proposals relating to, among other things, (a) arrangements concerning the organization of the meeting of the Assembly of State Parties; (b) establishment of subsidiary bodies; (c) procedures for nomination and for conduct of elections; (d) financing for the Court and the budget for the first financial period; (e) officials and staff of the Court and other operational aspects concerning its establishment.

He said it was always his deep conviction that the vocation of the International Criminal Court was, and remained, universal acceptance.  For that reason, it was fundamentally important that the legitimate concerns of all countries, big and small, of any and all regions, should be taken into account in the work of the Preparatory Commission.  He said it was therefore a remarkable hallmark of its work that the Commission adopted all its instruments and documents without a vote, thanks to the atmosphere that characterized the whole negotiation process.

Given the importance of the task and the immense effort required to turn the International Criminal Court from an idea on paper into a reality, he said it would take time for the Court to become fully operational.  It was necessary for the Court to be established on a solid footing in its early years.  The Court’s success would depend on the continuing support it received from all States and the public at large, especially during the crucial initial period of its existence.

ZEID RA’AD ZEID AL-HUSSEIN, President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, said the achievements in establishing the Court had been possible only because the international community had been unshakable in supporting it. 

The first session of the Assembly of States Parties had been highly productive.  Representatives of all 76 States parties to the Statute had attended, as had representatives of non-States parties and of intergovernmental and non-governmental organizations.  They had reasserted the conviction that the Court would not only bring to justice individuals who committed egregious crimes but would also assist in maintaining international peace and security.  Delegations had stressed the importance of safeguarding the integrity of the Statute.

Overall, he continued, the Assembly had adopted seven instruments and the budget for the first financial period.  Letters of assessment had already been sent, since the Court’s ability to carry out its operations depended on the actual payment in full of the assessed contributions, especially if there were an upsurge in its activities.  The Court must start off on a secure and sound footing.   Fifteen resolutions and four decisions had also been adopted on issues germane to the Court’s functioning and operations, and to the work of the Assembly and its subsidiary bodies.

In particular, he noted, the resolution on the procedure for the election of Judges had been finalized, facilitating the opening of the nomination period running from 9 September through 30 November, 2002.  The importance of the first election could not be over-emphasized.  To ensure the integrity of the electoral process, the Bureau of the Assembly had appealed to States to refrain from entering into reciprocal agreements of exchange of support.  Also, in view of the electoral requirement that every effort be made to elect the Prosecutor by consensus, States were encouraged to consult with each other before submitting nominations.  The election of Judges and the Prosecutor was scheduled for the Assembly’s first resumed session from 3 to 7 February, 2003.  All necessary arrangements for the Court’s operation were expected to be established by the time the Judges, Prosecutor and other key officials took up their posts next year.

In addition, he said, the Bureau had made recommendations, including on the establishment of a subcommittee to submit proposals on aggression.  Agreement had also been achieved on looking into the appointment of the External Auditor.  All instruments, resolutions and decisions had been adopted by consensus.  That had been an encouraging mark of maturity to be fostered in the future. 

He said the Court would continue relying on the assistance of the United Nations, with the draft relationship agreement between the two hopefully soon

finalized.  The principles enshrined therein put into perspective the relationship envisioned for the two.  Each respected the other’s status and mandate.  The Court would also recognize the responsibilities of the Organization under the Charter.

He noted that since August, Colombia, Tanzania, Timor-Leste, Samoa and Malawi had submitted their instruments of ratification or accession to the Statute, increasing the number of States parties from 76 to 81.  Universality was an achievable goal.  The United Nations could play an important role in that regard.  Also, it was noteworthy that the International Institute for Human Rights Law of De Paul University in Chicago had facilitated the participation at the first session of one delegate from each of the least developed countries.  That was an obvious statement of support for the Court. 

METTE NORGAARD DISSING (Denmark), for the European Union and associated States, said those countries reiterated their firm commitment to the early establishment and effective functioning of the Court, and to preservation of the full integrity of the Rome Statute.  They were determined to ensure the widest possible international support for the Court through the ratification of or accession to the Statute.  They were also committed to support the Court as a valuable instrument of the world community to buttress the rule of law and to combat impunity for the most serious crimes of concern to the international community as a whole.

She said the European Union would ensure that the International Criminal  Court met the highest standards of competence, fairness, due process and international justice.  Its members would do their utmost to ensure that the nomination of the Judges and the Prosecutor for the Court was transparent and fully consistent with the criteria set out in the Rome Statute.

The European Union was firmly convinced that the Rome Statute provided all the necessary safeguards against the misuse of the Court for politically motivated purposes, she stated.  It was ready, nevertheless, to address concerns of those still hesitant towards the Court through frank and constructive dialogue while preserving the integrity of the Rome Statute.  The objective of individual accountability for the most serious crimes of concern to the international community must not be compromised.

The European Union, she added, looked forward with great expectations to the year 2003 in which the Court would take up its judicial functions.  That, more than anything else, would prove that the Court could make a significant contribution towards the noble goals of justice and peace.

ANACLETO REI A LACANILAO (Philippines) said his country was in the process of assessing all the legal, political and practical implications of becoming a State party to the Rome Statute.  The Court had taken jurisdiction over the crime of genocide, crimes against humanity and war crimes at the entry into force of the Rome Statute, but the crime of aggression would face at least seven years of hibernation before it finally found its way -- if it did at all -- into the jurisdiction of the International Criminal Court.  Relevant to the discussions on the crime of aggression was the need to maintain the independence of the Court, in the face of the important role that political bodies played within the security mechanism established by the United Nations Charter.

He said politics could not be allowed to play a role in determining an element of the crime of aggression without grievously damaging the Court’s credibility and affecting its long-term viability as an international instrument against impunity.  To allow that intrusion would be a violation of the substantive rights of the accused to due process and, possibly, to the rights of the victims as well.

The International Criminal Court had a real potential to establish a new era in international law and diplomacy. It was sui generis and could play an important and effective role alongside the system of collective security established under the United Nations Charter.  It must not, however, be linked up as a continuum of that system and the political trade-offs in the United Nations Charter to achieve and preserve international peace and security.  The Court should be made independent of that system, he said.

DON MACKAY (New Zealand) noted that 81 States had become parties to the Court in a mere four years, and that the greatest possible geographic reach should be sought for the Court to make it truly effective.  He said the Court’s first years would be critical.  One of the challenges already faced had been the July open debate in the Security Council over the proposed resolution to exempt all peacekeepers from the Court’s jurisdiction.  It was disappointing that the Council had seen a need to proceed with the resolution.  Hopefully it would not be renewed next year.  Many States had received requests for “article 98” exemption agreements, raising many difficult issues.

In the Court’s formative period, he stressed, States parties had a particular responsibility to support the Court they had created and to protect the integrity of the Rome Statute and its principles.  To ensure full compliance with its own obligations to the Court, his country would shortly sign the Agreement on Privileges and Immunities and move to become party to it as soon as the domestic processes were completed.

Continuing, he said the election of the Judges and Prosecutor would be the immediate challenge in the next months.  The Court’s credibility relied on those elected being of the highest calibre.  They must not only be highly qualified but also representative, reflecting the range of States parties and their legal systems and also representative in terms of gender.  A permanent court operating wisely within the careful system of checks and balances contained in the Rome Statute was an important new tool of international justice.  Its existence would deter crimes in a way that ad hoc tribunals did not. 

He said those who had misgivings about the Court would certainly see that their fears were unfounded.  History and its mass victims showed that a future without a truly effective system for international justice was the only thing to fear.

OLE PETER KOLBY (Norway) said “action speaks louder than any words.”  Concrete steps should be taken to move from words to action on the Court.  The most important mechanism for promoting and enforcing international humanitarian law on paper must now become a reality in practice.

Support must be redoubled for the tribunals and other institutions of criminal justice.  Completion of their mandates now was not only important in their own right; rather, their work and activities were the building blocks for the Court.  All States should demonstrate their fullest cooperation by surrendering indictees and providing assistance with regard to witnesses and enforcement of sentences.  Also, the Court could not work efficiently until the Agreement on Privileges and Immunities had entered into force.  The draft text had been formally adopted at the meeting of the Assembly of States Parties.  Norway had ratified the Agreement on the day it had opened for signature on 10 September.  It was the only State that had ratified it to date.  It was a tangible demonstration of the priority Norway attached to the Court’s effective operation.

He said his country would disseminate the “elements of crime” adopted by the Assembly to its own armed forces.  It would give priority to the dialogue on issues concerning the fight against impunity for the worst international crimes.  His country would support the work of the Director of Common Services in facilitating the Court’s entry into operation.  A core concern was for the Court to be truly independent.  Finally, to contribute vital liquidity in the Court’s critical embryonic phase, Norway was making available to it 6,000,000 Norwegian kroner, corresponding to about 800,000 Euro, as an advance payment of its assessed contribution.

SHUICHI AKAMATSU (Japan) said it was important that the contribution of the International Law Commission in the drafting of the Rome Statute was recognized. Its efforts served as a foundation for the subsequent work on the Rome Statute.  The Statute should not be criticized as a product of compromise, but rather viewed as a delicate balance that had gained wide support for the Court.

The next task was to ensure its operation as smoothly as possible.  The experiences of other tribunals such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda would provide valuable lessons.  He stressed the importance of expansion of the Court’s membership.

He said Japan was examining the articles of the Statute to ensure compatibility with its domestic law.  Japan would actively participate in discussions about the Court.

JONATHAN HUSTON (Liechtenstein) welcomed the agreement on the mechanism for the election of Judges to the Court reached by the Assembly of States Parties.  His delegation believed that the broad representation envisioned was necessary to give life to the Court’s universal nature.  The appointment of a prosecutor of very high standing would be instrumental for the success of the Court, particularly during its first phase of operation which would be decisive for the Court’s future.  It was also vital that highly qualified staff were hired for all levels of the Court’s work.

He said Security Council resolution 1422 (2002) was inconsistent both with the Rome Statute and with the functions and powers of the Council under the United Nations Charter.  He hoped the Council would refrain from renewing that ill-advised resolution next year.  Similarly, he said, there had been attempts over the past year to apply article 98 of the Rome Statute in a manner not provided for by it.

He said article 98 was negotiated with a very limited application to the Status of Mission and Status of Forces Agreements in mind -– an understanding shared at the Rome Conference by all concerned parties.  The purpose of the article was not to create a loophole of impunity for nationals of non-States-parties.  The proposed non-surrender agreements would undermine not only the Court’s integrity, but also the very principle of the territorial jurisdiction of States.  The International Criminal Court should be the ultimate arbiter of its own jurisdiction, in line with the provisions of the Rome Statute.

VALENTIN ZELLWEGER (Switzerland) said the establishment and effective functioning of the Court would put an end to impunity with regard to the worst crimes again humanity.  There was wide agreement in international law about those crimes, but until now the international community had lacked the instruments to put the required laws into place.  The Court would rectify that.  Also, it was gratifying that the first meeting of the Assembly of States Parties had adopted all its instruments by consensus.  The States parties must continue to ensure that the right environment was created worldwide for the Court.

The Court’s financing was of fundamental concern, he continued.  The letters of assessment had been sent out in mid-September.  In the next few days, Switzerland would not only pay its dues but also contribute to the Operating Fund.  It had also taken the first steps towards signing the immunities Agreement.  In addition, it was nominating Barbara Ott, a military judge, for the post of Judge of the Court.  It was important that the Prosecutor’s post be filled by consensus and not by contested ballot.

He said it was important to consider not only the moral obligations of State parties but also the moral responsibility of those who opposed the Court.  It should be underscored that the Court did not infringe on the rights of non-party States.  It did not have extraterritorial powers.  It would exercise its powers only in the territory of a State party.  Its competence was ordinary and classical, in line with all contemporary national laws.  A proliferation of immunities and exception clauses would undermine the Court’s integrity.

SOTOS ZACKHEOS (Cyprus) said the growing acceptance of the Statute was a manifestation of the broad determination to face the most heinous crimes as attacks against all countries, religions and cultures, which must be outlawed and accounted for at the international level.  It was important that in the effort to gain the widest possible ratification or accession to the Rome Statute, full integrity must be preserved.

Impunity had encouraged the perpetration of heinous crimes through human history, he continued.  The establishment of the Court and its effective functioning would reverse such a regressive course, whose manifestations stirred humanity’s conscience.  As a victim of foreign occupation, Cyprus attached great importance to the provisions of the Rome Statute.  It was noteworthy that the Court’s jurisdiction extended over war crimes and crimes against humanity.  Those included the forcible transfer of populations, the transfer by the occupying Power of its own civilian population into the territory it occupied, the enforced disappearances of persons and subsequent refusal to provide information on the fate or whereabouts of those persons.  Cyprus was therefore presenting the candidature of Georghios Pikis, President of the Cyprus Supreme Court, for the post of a Judge with the Court.    

J. GABRIEL VALDES (Chile) said the historic entry into force of the Rome Statute this year was a definitive, irreversible step forward in international efforts to combat impunity.  The Preparatory Commission, with its tenth and last session in September, had fulfilled its duty, and he congratulated all those who participated in its work.  Noting that this year also marked the first session of States parties to the Rome Statute, he paid tribute to the President of the Assembly of States Parties.

He said Chile had signed the Rome Statute, had taken part in work on the instrument and would continue to be engaged to ensure the functioning of the Court.  The legislative process of ratifying the Rome Statute was under way in his country.  He reiterated the fundamental need for maintaining the integrity of the Rome Statute and ensuring its balance.

ISAAC MURARGY (Mozambique) said that in signing the Rome Statute, his Government had demonstrated its commitment to the principles and purposes of the International Criminal Court.  The process of ratification of the Statute was under way.

The Government planned to organize a workshop next year to disseminate information about the objectives of the Court.  In recognizing the principle of complementarity, he said the Rome Statute safeguarded the priority of national sovereignty.  He urged countries in a position to do so, to provide technical assistance to developing countries to strengthen their legal capacities.

ALBERT HOFFMAN (South Africa) recalled that his country had signed the Rome Statute in 1998 and had ratified it in November 2000.  He said national legislation on implementation of the Statute had come into operation on 16 August this year.  It would enable South Africa to cooperate fully with the Court and/or to prosecute those who committed the crimes covered by the Statute within South Africa’s territory.

In addition, he said, his country was engaged in a budgeting process to ensure that it paid its assessed contributions on time.  It would also nominate a candidate for Judge.  It was gratifying that nearly all States of the United Nations had signed the Statute.  It signified universal alignment with the principles espoused.  All States should ratify the Statute before the inauguration of the Judges in April of next year.  Those who had not signed should reconsider and afford the Court time to prove itself.  The Court was a triumph for all States of goodwill who wished to afford redress and protection to victims of heinous international crimes.  

ALLIEU IBRAHIM KANU (Sierra Leone) said his country had supported the establishment of a permanent criminal court from the start.  It had been one of the first countries to sign and ratify the Statute.  The crimes covered by the Court would augment and solidify the work of the tribunals and similar institutions, such as the special court established in his country.   Those who had not supported the special court for Sierra Leone should do so.  It was contributing to the establishment of a just international legal order.  It upheld the rule of international law.

Turning to objections to the Court, he said the Statute provided multiple safeguards against frivolous actions.  “Article 98” exemptions undermined the Statute.  In addition to the critical issue needed to safeguard the integrity of the Statute, it was important that there be equitable representation in the Court.  The important work on the question of defining aggression must continue.  It was critical to make a distinction in the definition between the act of aggression and the crime of aggression.  An act of aggression was performed by an individual whereas the crime of aggression was a “crime of leadership”, committed by a leader.  Reflecting that distinction was crucial.  He said all States should become States parties to make the Court universal.

ADRIANA P. PULIDO SANTANA (Venezuela) noted the historic significance of the entry into force of the Rome Statute.  She welcomed agreement achieved at the first session of the States parties concerning the election of Judges and a prosecutor for the Court.  She also welcomed the decision to establish an ad hoc working group to continue work on the crime of aggression.  Her delegation had great expectation of the action of the Assembly of States parties regarding the nomination and the election of judges as well as the prosecutor.  It believed that the Rome Statute provisions about their qualifications would be adhered to.

Venezuela also stressed the importance of the maintenance of the integrity of the Rome Statute.  It would work with others to ensure that, and appealed to States that had not become party to the Statute, to make it a priority to do so.

MAHMOUD HMOUD (Jordan) said that international law, affecting proper conduct of relations among nations, had always been subject to a major impediment, and that was its enforcement.  When the rule of law was being violated, enforcement became a tool for both remedy and deterrence.  That tool had been abused.  The international community had not been able to send a proper message to perpetrators as victims of the most serious crimes.  Grave crimes had continued despite tribunals and the Geneva Conventions; in most cases, victims had never seen justice or recourse.  The entry into force of the Rome Statute was, hopefully, ushering in a new era in which an impartial international mechanism sought justice for both perpetrators and victims.

He said Jordan had signed the Statute in 1998 and had ratified it during the Headquarters ceremony in April.  Under the Jordanian constitution, the ratified international treaty took precedence over previous national legislation.  A committee had been established to study harmonization between the legal, judicial and administrative processes between Jordanian law and the Rome Statute.  Regionally, it would act through the appropriate Arab League institutions to advance respect for the Statute and adherence to its principles.

ROSETTE NYIRINKINDI KATUNGYE (Uganda) recalled that her country had participated in the preparatory sessions on the Court and in the first meeting of the Assembly of States Parties.  It had addressed the Assembly at length and had brought up key issues of concern.  One of those had been connected with the Assembly’s decision on the procedure of electing Judges, the Prosecutor and the Registrar.  The procedure agreed upon was complicated and left some States worried.

She said a truly universal representation of Judges would, hopefully, be elected to make the Court respected.  Uganda would be presenting Professor Nsereko as a candidate.  He was a renowned scholar and first-class criminal lawyer, and a man of high moral integrity.  She hoped there would be transparency in the recruitment of staff for the Court, so as to avoid the inequities that had occurred in other organs.

GUENKA BELEVA (Bulgaria) said the number of 81 States Parties to the Court within four years was a sign that the international community recognized the need for such a court, in addition to national regimes.  To make the Court effective and enable it to inspire confidence, it would be required to work with third States who were not States parties to the Statute.  Achieving universality of cooperation would require dialogue.  It would be imperative and would require mechanisms such as bilateral agreements with States that were not members.  She said the decision of the European Union on 30 September had been noteworthy.  It had opened the way to dialogue on the issue.

The roles of national and international institutions of justice must be harmonized, she stressed.  The jurisdiction of each must be respected, as set out in article 98.  It obligated States parties to certain agreements in complementarity between the International Criminal Court and national courts.  It did not infringe on the rights of non-State members.  It must be kept in mind that the role of the Court was to prevent, prosecute and punish serious crimes against humanity, in line with national laws and in the context of respect for international cooperation.

SORAYA ELENA ALVAREZ NUÑEZ (Cuba) said her delegation favoured upholding the principle of multilateralism.  It had participated in the work of creating an impartial international criminal court, which marked a significant development of international law.  The issue of definition of the crime of aggression and the independence of the Court were key priorities for her country.  Cuba had participated in the first meeting of the Assembly of States Parties, as an observer.  It hoped the ad hoc working group on the crime of aggression would begin work in 2003 as planned.

She said the independence of the new Court, which would complement domestic jurisdiction, was in great peril.  The Security Council by its resolution 1422 (2002) had assumed the “illegitimate” role of interpreting and amending treaties, which represented a material breach of the United Nations Charter and the Law of Treaties.  The Council’s action also amounted to a threat to international law, including the principle of equality before the law.  Recent events threatened to further undermine the independence of the Court.  The rights of States must be respected.

When the Sixth Committee met again this afternoon, MARCEL BIATO (Brazil) said a report was expected shortly from an inter-agency task force charged with proposing changes to the Brazilian legal system.  He said the ultimate effectiveness of the International Criminal Court would require that it was always thorough and even-handed in the judgements it handed down.  The Prosecutor and Judges of the Court must ensure that justice was both done and seen to be done.  Brazil had nominated a candidate for election as a Judge, he said.

He said Brazil’s hope for the development of effective and impartial international criminal justice rested on the ability to translate into reality the spirit that prevailed at the Rome Conference.  It was convinced that the Court’s claim to universality was firmly rooted in the elaborate system of checks and balances built into the Rome Statute.  That regime provided the necessary safeguards against possible abuse and politically motivated misuse of the Court’s jurisdiction.  Brazil was committed to upholding the integrity of the Rome Statute and the consolidation of the rule of law worldwide.

NICHOLAS ROSTOW (United States) said the reasons for his country’s opposition to the Rome Statute were well known.  The United States, he said, did not seek to undermine the International Criminal Court; it respected the right of States to become parties to the Rome Statute, and likewise, his country’s decision not to be a party should be respected.

There were three main parts to that position, he continued.  First, the United States was concerned about politically motivated prosecutions.  There were many examples of prosecutions based on political agendas rather than evidence and neutral prosecutorial judgement.  A prosecutor’s office housed in a democratically responsible political branch of government was accountable in a system of checks and balances.  That situation would not exist in the International Criminal Court.

Problems related to jurisdiction and due process included the fact that the power of the international tribunal was independent of consent.  Sovereign States had the right to try non-citizens who had committed offences against their citizens or on their territory, but his country had never recognized the right of an international organization to do so, absent consent or a Security Council mandate and oversight.

Finally, he said, due process concerns with the Rome Statute included issues of multiple jeopardy, definitions of crimes, and problems of evidence and testimony when the Court had to harmonize legal systems and languages.  Also, the International Criminal Court was not part of the United Nations Charter system.  The Statute provided insufficient opportunity for Security Council oversight, and the Assembly of States Parties was wrestling with the definition of aggression, a matter the Charter left to the Council.

ERNESTO PINTO BASUTCO (Peru) said his country had become a State party to the Rome Statute last year.  Since then, it had studied ways to apply it in its own national legislation.  Legislation had been implemented to cover some crimes not covered by the Statute and to more clearly define other crimes addressed by the Statute.  The system of electing the Judges should be underwritten and the focus should be on achieving a representative selection of Judges.  Progress had been made in the definition of “aggression”.  Overall, the fully functional Court would put a stop to impunity with regard to the greatest crimes against humanity.

Affirming that his country had a long juridical tradition, he called on all States to cooperate with the Court.  All those who had committed grave crimes, including those who were heads of States, would be brought to justice.  That applied to a certain head of his own State now living in an Asian country under a different name.  Finally, a word of caution should be heeded with regard to the Court:  despite the noble nature of the Court’s cause, it was in the nature of international relations that misinterpretations could occur.  The Court must hold itself to the highest standards.  It must operate on the principle of good faith with its States parties.

EMANUELA GILLARD, observer, International Committee of the Red Cross (ICRC), said the International Criminal Court must be provided with the broadest possible political and financial support to ensure its independence and universality.  It was important that a Prosecutor and Judges with the highest competence and integrity be elected.  They must be drawn from a broad spectrum of States, cultures and legal systems, she said.  States parties must review their national laws and procedures to enable them to cooperate with the Court. 

She noted that the Court was designed to be a last rather than a first resort for justice; that could be effectively achieved only if States ensured that their domestic legal systems criminalized crimes under the jurisdiction of the International Criminal Court, and then enforced those prohibitions.  She encouraged States to exercise universal jurisdiction over those crimes, regardless of the place where the offence was committed and the nationality of the alleged perpetrator.

The ICRC Advisory Service was ready to support States in their efforts towards ratification and implementation of the Rome Statute, she said.  States parties would need to consider what additional obligations those treaties imposed by way of prevention and punishment of violations:  the 1949 Geneva Conventions and their 1977 Additional Protocols; the 1954 Hague Cultural Property Convention and its two Protocols; the 1980 Conventional Weapons Convention and its four Protocols; the 1993 Chemical Weapons Convention and the 1997 Ottawa Convention.

She said the Geneva Conventions with Additional Protocol I and the Second Protocol to the 1954 Hague Cultural Property Convention contained an obligation for a search for and the extradition of persons who committed or ordered the commission of grave breaches of those instruments.  For States parties to Additional Protocol I, that obligation extended to grave breaches that resulted from a failure to act when there was a duty to do so.

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