Fifty-seventh General Assembly

Sixth Committee

15^th Meeting (AM)

LEGAL COMMITTEE IS TOLD PERMANENT CRIMINAL COURT WILL AVOID AMBIGUITIES

IN WORK OF INTERNATIONAL TRIBUNAL FOR FORMER YUGOSLAVIA

Delegate Speaks of Ongoing Debate about “Selective Justice”; Broad

Support Expressed for New Body, with Inaugural Session Set for March 2003

Ambiguities involved in the functioning of the international tribunal for the former Yugoslavia would be avoided in the establishment of a permanent court, Yugoslavia’s representative told the Sixth Committee (Legal) this morning.

As the Committee ended its current consideration of the establishment of the International Criminal Court, the representative said there was debate as to whether the ongoing criminal tribunal was an appropriate response by the international community to the crimes committed in the former Yugoslavia in the 1990s, or whether it was just an ad hoc solution of applying the principle of selective justice.

Among other speakers, Malawi’s representative said that as a permanent criminal tribunal, the International Criminal Court would be the first and most important guard against grievous crimes.  His country’s ratification of the Rome Statute had been a strong public statement of its commitment to the newly evolving international political resolve to uphold the rule of law and break free of a long past characterized by wanton gross violations of human rights through horrifying crimes.

The representative of Canada said her country was involved in activities to implement the Statute.  It was supporting conferences in various regions, bringing together experts from relevant ministries, raising awareness and sharing experiences in developing legislation.  She called for awareness-raising campaigns in countries that had decided not to ratify.

The representative of Trinidad and Tobago speaking for the 14 members of the Caribbean Community (CARICOM), said States Parties must ensure that the Court was fully equipped to fulfil its purposes.  Financing was critical.  Also, serious drug-trafficking offences and other transboundary criminal activities should be included in the Court’s jurisdiction.

The momentum in The Hague was in full swing for the Court to function in both physical and organizational terms, said the representative of the Court’s host country, the Netherlands.  Arrangements were being made for the Court’s

inaugural session to take place on 11 March 2003.  He said States Parties would be invited at the Ministerial level.

A number of delegations called for nominees for judge, prosecutor and other officials of the Court to be of the highest professional competence, integrity and moral standards.  China’s representative said the safeguards in the Rome Statute would not automatically guarantee fairness.  A genuine nominating and election procedure must be ensured to achieve fairness of geographic representation and gender balance.

Also speaking this morning were the representatives of Mexico, Tanzania, Nigeria, Ghana, The former Yugoslav Republic of Macedonia, Burkina Faso, Paraguay, Ecuador, Gabon, Australia, Cambodia, Argentina, Swaziland, Croatia and Ukraine.

The Committee will meet again at 3:00 p.m. on Thursday, 17 October, to take up the report of the working group on the International Convention against the reproductive cloning of human beings.

Background

The Sixth Committee (Legal) met this morning to continue its consideration of the establishment of the International Criminal Court.  (For further background, see Press Release GA/L/3214 of 14 October.)

Statements

AGUILAR ZINSER (Mexico) said the entry into force on 1 July of the Statute of the International Criminal Court was a landmark in the history of international relations.  It was a signal that the international community would no longer tolerate violations of human rights.  The Court would prevent the grievous crimes that humankind had seen over the last years.  Those who engaged in crimes against humanity must know that place and time did not matter any more.  Some day they would be brought to justice.  The Court would become operative in 2003.  Without the spirit of clear compromise, this point could not have been reached. 

He said the efforts of the Coalition of Nongovernmental Organizations had been instrumental in establishing the Court.  Their work was a sign that civil society was mobilized for justice.  The path ahead was difficult.  Major obstacles were yet to be overcome.  The adoption of legislation to weaken the Court was regrettable.  The position of the United States was particularly disappointing.  Actions to thwart the Court’s effectiveness violated the international penal code. 

He said the European Union had taken an important step in the right direction by adopting a common position.  Others should adopt such measures.  Mexico would sign no agreement that would weaken the Court or violate the principles on which it was founded.  Mexico would shortly ratify the instrument.

DAUDI N. NWAKAWAGO (United Republic of Tanzania) said that with the Court’s jurisdiction to try cases on genocide, war crimes and crimes against humanity, the international community would rest assured that the days of acts of impunity would come to an end.  The Court would also be the right body to remedy the deficiencies that had been attributed to ad hoc tribunals.  Furthermore, the Court would provide a much stronger deterrence to potential criminals.  By working effectively, the permanent international court would make an important contribution to advancing international peace and justice.

       Tanzania ratified the Court’s Statute on 1 August this year, and was willing to cooperate with Member States to advance the cause of the Court.  With the process of ratification proceeding at an impressive pace, he said, every effort should be made to make the Court’s jurisdiction universal.  Political attitudes as well as government change could make acceptance of the Court more universal than currently reflected.

     DEBORAH CHATSIS (Canada) said one of her country’s successful projects related to the Court was the production of a series of manuals providing detailed information on the Rome Statute.  The manual, now translated into Spanish, Portuguese, Arabic, and several other languages, contained options and strategies for States to meet their obligations under the Statute.  Canada had also providedassistance to the organizers of the International Criminal Defence Bar, an important initiative aimed at protecting the rights of defendants.

She said Canada had been actively engaged in working with those involved in the implementation process, supporting conferences in different regions, bringing together experts from relevant ministries to raise awareness on the obligations in the Rome Statute and to share experiences in the development of enabling legislation.

Those conferences were important in building the framework on which cooperation between States and the International Criminal Court could be built. There was also a growing need to raise awareness among States which had decided, for the time being, not to ratify.  The objectives of such a campaign could include addressing the concerns of those States about the Court, emphasizing the many safeguards in the Rome Statute, the Rules of Procedure and Evidence and other key documents of the Court.

MWANDEMBWA MWANDEMBWA (Nigeria) said the international community had always shown an abhorrence for impunity.  The Nuremburg trial and the present-day tribunals were demonstrations of that opposition to impunity.  Those ad hoc instruments were not enough, however.  There had to be a permanent body to prevent heinous crimes in the future.  There was no cause for concern about its activities.  The jurisdictions of the Court and of national courts were clearly established.

The Court must be allowed to function freely, he said.  It must be strengthened to become an effective instrument of deterrence.  It must contribute positively and meaningfully to the development of international law and to the rule of law.  

     KWESI QUARTEY (Ghana) said that for Africa, the need for an international criminal court with jurisdiction over genocide, crimes against humanity, war crimes and aggression (however defined), and to save African people from further human catastrophe, was self-evident.  They had seen too much pain, not to be encouraged by the idea of an effective court with all the attributes of integrity and universality.  Ghana supported the new International Criminal Court since it had sufficient inbuilt safeguards to guarantee that it maintained a high standard of justice.

Ghana also supported moves to make the Court’s judges, prosecutors and other officials truly first-class, and representative of diverse legal traditions and systems.  Ghana intended in due course to present a candidate who had the necessary qualities.  If those highest standards of integrity and judicial wisdom were balanced with geographical spread and gender sensitivity, he said, fears of the Court’s impartiality would be addressed.  Efforts should be made to avoid the taking of wrong measures that would kill the Court at birth or make it ineffectual.

ELIZABETA GJORGJIEVA (The former Yugoslav Republic of Macedonia) said the forthcoming election of judges and prosecutor of the Court was fundamental to the Court’s success.  States parties must ensure that their nomination and election accorded fully with the criteria set out in the Court’s Rome Statute.  Furthermore, they must do their utmost to elect the prosecutor by consensus.

The Assembly of States Parties must approach its role in a balanced manner. It should resist any political interference in its work and ensure the Court’s independence and impartiality.  She said it should also continue the important task of preparing a proposal on the crime of aggression and the modalities of its implementation.  Concerns about the possibility of politically motivated prosecution could be addressed in ways that did not compromise the Court

MICHEL KAFANDO (Burkina Faso) said his delegation fully endorsed the new and permanent International Criminal Court.  He said a widespread global movement had brought it about.  It was a source of pride that the international community had been able to establish such a legal instrument.  Many obstacles had arisen and had been overcome to make the Court a reality.  Still, there was no room for complacency.  Many obstacles remained.  An artificial consensus must not be allowed to influence the Court and taint its work with political considerations.  The Court must be strengthened as an instrument for the protection of human rights.

ELADIO LOIZAGA (Paraguay) said his country had supported the Court from the start, and had deposited its instrument of ratification on 14 May 2001.  The Court would not be an instrument for political persecution; it would apply the standards of international humanitarian law without political influence.  The unanimous agreement at the first meeting of the Assembly of States Members had been satisfying.  He said there should be equality of gender representation and of geographical distribution on the Court.  It should be representative of all legal systems of Member States.  His country had proposed a candidate for the position of Judge, and would soon sign the instrument on Privileges and Immunities.  Effectiveness and impartiality were the key objectives for the Court.

GAILE ANN RAMOUTAR (Trinidad and Tobago), speaking for the 14 members of the Caribbean Community (CARICOM), said States Parties must ensure that the Court was fully equipped to fulfil its purposes.  Financing of the Court was critical.  Without adequate resources from assessed contributions, United Nations Funds and voluntary contributions, the Court would be unable to achieve effectiveness and independence.  Also, it must be staffed by persons of the highest competence, moral character and integrity.  The staff must reflect the diversity of States Parties in order to add the dimension of experience that would enable the Court to address the issues before it.  Gender balance must be achieved.

She recalled that the issue of establishing a permanent international criminal court had been placed on the United Nations agenda for the express purpose of establishing an international criminal jurisdiction for bringing to justice the perpetrators of serious drug-trafficking offences and other transboundary criminal activities.  Those crimes should be included in the Court’s jurisdiction at the Review Conference, she said.  Including them had become acute, in light of the fact that individuals involved in major international organized criminal activities had demonstrated their ability to undermine Governments and destroy the fabric of societies.

MARCELO VAZQUEZ (Ecuador) said his country reiterated its firm commitment to the International Criminal Court, an institution that would be crucial for the realization of international criminal justice.  It also reiterated its support for the strict integrity of the Court’s Statute, as well as respect for it in letter and spirit.  The Statute and its related and complementary instruments -- whose elaboration saw wide participation by States -– constituted a solid juridical basis for the appropriate, independent and impartial functioning of the Court. With its creation as a permanent and independent institution, with complementary jurisdiction at domestic level, the international community had reinvigorated confidence in the rule of law, realization of justice and eradication of impunity.

Ecuador was convinced that the Court would also contribute to a great extent to the cause of peace and security.  It was also convinced that there would be fruitful cooperation between the United Nations and the Court.

JAN SAHOVIC (Yugoslavia) said the establishment of the Court was of special importance to his country.  He said there was an ongoing debate there as to whether the International Criminal Tribunal for the former Yugoslavia was an appropriate response by the international community to the crimes committed in the former Yugoslavia in the 1990s, or just an ad hoc solution of applying the principle of selective justice.  Such ambiguities could be avoided in the future with the establishment of a permanent court.

For the Court to function independently in a fair and effective manner, professional qualifications, integrity and impartiality would be of decisive importance in the selection of judges and the prosecutor.  The principles of the Rome Statute, espousing equal geographical and gender representation, as well as all legal systems, should be preserved.  Those conditions should guarantee the credibility of the Court, he stated.  

RUSSEL MEZEME-MBA (Gabon) said the establishment of the International Criminal Court was an important stage in the development of international criminal justice.  It was an appropriate institution for the international community to bring to justice perpetrators of genocide, war crimes and crimes against humanity. He hoped a solution would be found to the problem of the definition of the crime of aggression.  Gabon would take all the necessary steps to bring its national laws in line with the provisions of the Rome Statute, he said.  He welcomed the consensus attained during the first session of the Assembly of States Parties in its discussions and hoped that it would be reflected in its future work as well.

GUAN JIAN (China) said broad representativeness in the composition of the judges was essential for realizing the Court’s universality.  The Assembly of States Parties had set minimal voting requirements in respect of geographic representation and gender balance.  Such requirements would not automatically guarantee fairness in that regard; that could be achieved only if States Parties succeeded in conducting a genuine nominating and election procedure.  Should the election be found lacking in fairness of geographic representation and gender balance, and should the Court be reduced to a regional court, the Court’s authority and universality would be undermined.  The Court should take a very solid first step by adhering to the letter and spirit of the Statute.  The composition of the judges should be distinguished by the highest professional qualifications and by reflecting the Court’s universal nature. 

RICHARD ROWE (Australia) said the lack of a permanent international forum for trying persons guilty of the gravest crimes had been a serious gap in international law.  The achievement of bringing the Court into being had been a collective effort.  An advance team was putting together the home for the Court in The Hague.  States Parties must maintain responsible budgetary positions in the future.  The first officers of the Court and the prosecutor would shape the future of the Court.  They should be of the highest level of qualifications and integrity.

Further, he said, States Parties to the Court must give consideration to non-States parties in the conduct of affairs so that the Court could achieve true universality.  Australia had been approached by the United States to sign an Article 98 agreement.  The question was being considered because the Unites States concern with frivolous prosecution was understandable.  If his country signed an Article 98 exemption agreement with the United States, it would do so in full compliance with the Rome Statute.

SUN SUON (Cambodia) said the Rome Statute was becoming part of the progressive development of international law.  It was paving the way for strengthening the rule of law, protecting human rights and advancing human security.  There was now a permanent judicial mechanism to deal with the most heinous of crimes and build a better and safer world by saving lives, deterring conflicts and diminishing wars.  In the present transitional period, the emphasis should be on creating an independent, impartial and effective Court, for which universality was being promoted.  The Rome Statute symbolized global justice that required adherence by all States.  The integrity of the Statute must be preserved by making the Court a universal body as intended.

He said his country had hosted the regional conference of observing experts of the International Criminal Court earlier this month in Phnom Penh.  Many delegates from the Asia Pacific Region had attended.  They had discussed the role of the Court and had initiated an awareness campaign about implementing the Statute, upon its entry into force.  

     RICARDO BOCALANDRO (Argentina) announced that his country intended to present a candidate for nomination to the position of a judge in the International Criminal Court.  He commended the role that the Coalition of Non-Governmental Organizations had played in the establishment of the Court and stressed the need for their continuing that role in the follow-up processes.  Argentina had ratified the Rome Statute and had also signed the Agreement on the Privileges and Immunities of the Court.

He said the Court would have jurisdiction over specified cases in States that were party to its Statute.  The Court should respect the principle of domestic jurisdiction.  He welcomed the principle of complementarity provided for in the Statute.  He observed that the Statute contained remedies that would provide safeguards against politicization of prosecutions.  He reiterated a statement made by his country to the Assembly of States Parties at its first session that it was not necessary for the Statute’s provisions to be modified.  The Statute was acceptable and reflected the Court’s integrity.

JOEL NHLEKO (Swaziland) said the Court was one of the most promising opportunities to promote accountability and human security.  It held the promise of universal justice and an end to the impunity that had prevailed for so long.  The imperatives of justice required law and only a credible court could apply a law.  The Court’s Statute afforded a viable foundation for establishing a strong, effective and independent court.  It was gratifying to see the increase in the number of States bound by the Statute.

ISAAC LAMBA (Malawi) said 19 September had been a landmark date for his country’s criminal justice system, since it had deposited its instrument of ratification of the Rome Statute.  It was a strong public statement of Malawi’s commitment to the newly evolving international political resolve to uphold the rule of law and break free of a long past characterized by wanton gross violations of human rights through horrifying crimes.  As a permanent international criminal tribunal, the Court was the first and most important guard against such crimes.  They had gone virtually unpunished even in some supposedly well-intended humanitarian actions, including in peacekeeping operations.

The Court’s functions and credibility must be jealously protected and promoted by all who had signed on to its creation, he said.  There should also be a concrete consolidation of the Court’s reach, as well as assurance of its independence.  It would take unequivocal commitment and vigilance on the part of States.  Care must also be taken that the Court did not become the virtual playground for narrow self-interests seeking to secure unjustifiable exemptions from prosecution for crimes punishable under the Rome Statute. 

IVAN SIMONOVIC (Croatia) said the Court should not be perceived as a threat to any country willing to respect international humanitarian law and basic human rights.  Its jurisdiction was strictly dependent on the built-in principle of complementarity.  Additional checks and balances contained in the Rome Statute held sufficient assurances against the scepticism expressed by some countries.  Pragmatic reasoning suggested that some kind of compromise on the questions could be reached at this early stage of the Court’s existence.  In the long-term, the widest possible participation in the Rome Statute remained the best answer to the concerns.

He said the first election of judges and the prosecutor would be critical for the Court’s authority and the public perception of it.  A truly independent, non-political and representative Court should emerge.  The increasing number of highly qualified candidates coming from all regions was encouraging.  His country was seriously considering nominating a candidate for judgeship with the Court.   

CARL PEERSMAN (Netherlands) said that as the host country, the Netherlands had an unwavering commitment to the establishment of an independent and impartial International Criminal Court.  In The Hague, the momentum was in full swing for the Court to function in both physical and organizational terms.  Arrangements were also being made for the Court’s inaugural session to take place in The Hague on 11 March 2003.  States Parties would be invited at the Ministerial level.

He said his country had also coordinated the drafting of the resolution presently before the Committee on the Court’s establishment.  Soon the reference would not be to the establishment of the Court but to the Court as a fully operational international institution.  Among other matters, the draft requested continuation of the trust fund enabling participation of the least developed countries in the Assembly of States Parties meetings. 

OLEKSIY ILNYTSKYI (Ukraine) said it had been a momentous year for the Court and for the promotion of the international rule of law.  Noting also the preparatory work done by the Commission and the first meeting of the Assembly of States Parties, he said the advance team in The Hague had done a significant amount of work.  The procedure for the election of judges was a large step toward guaranteeing that those elected to serve on the Court would be of the highest competence and efficiency.  Their election, and that of the registrar, would be fundamental to the Court’s success.  Their impartiality, integrity and qualifications would determine the Court’s effectiveness and universal

recognition.

Equally important, he said, was the question of elaborating the definition of the crime of aggression, including the elements of the crime and the conditions under which the Court would exercise its jurisdiction with regard to that crime.  The system of international criminal justice based on the Rome Statue was incomplete without that definition.