COUNTRIES NOT YET PARTY TO DOCUMENTS ON INTERNATIONAL CRIMINAL COURT ARE URGED TO RATIFY, ACCEDE TO GOVERNING STATUTE

Fifty-eighth General Assembly

Sixth Committee

13^th Meeting (AM)

COUNTRIES NOT YET PARTY TO DOCUMENTS ON INTERNATIONAL CRIMINAL COURT ARE URGED

TO RATIFY, ACCEDE TO GOVERNING STATUTE

Legal Committee Also Seeks Relationship Agreement Between

Court and United Nations; Text Received on Effects of Sanctions on Third States

The General Assembly would ask States to consider becoming parties without delay to the agreement on privileges and immunities of the International Criminal Court –- now a judicial institution -- by a draft resolution approved by the Sixth Committee (Legal) this morning.

States Parties to the Rome Statute of the Court have grown from 81 to 91 in the past year, and more would be asked to consider ratifying or acceding to it, by the terms of the draft resolution.  The same text would have the General Assembly request the Secretary-General to take steps to ensure the conclusion of a relationship agreement between the United Nations and the Court, which is based at The Hague, the Netherlands.

The relationship between the two bodies has entered a new phase and the draft resolution would have matters related to the Court’s affairs handed over to the newly established secretariat of the Assembly of States Parties the United Nations Secretariat’s Office of Legal Affairs.

Speaking before and after the approval of the draft resolution, the United States disassociated itself from the action taken.

On another issue, a draft resolution on implementation of United Nations Charter provisions on assistance to third States affected by the application of sanctions was introduced in the Committee by a representative of the Russian Federation.

The Committee concluded its debate on a proposed instrument on jurisdictional immunities of States and their property.  A report by an Ad Hoc Committee, which studied the question, said all outstanding issues had been resolved and that the General Assembly would have to determine what form the 22 articles of the instrument should take.

Delegations called for the articles to be the basis for a convention.  They supported the reconvening of the Ad Hoc Committee in the spring to finalize the preamble and the concluding clauses of the text.  

Speaking on the subject this morning were the representatives of Viet Nam, South Africa, Ukraine, Guatemala, India, Mexico, Jordan, Morocco and Nepal.

Finally, the Committee began examining the question relating to the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel.

Christian Wenaweser, (Liechtenstein), chairman of both the Ad Hoc Committee and the working group, said the working group had agreed on three needs with regard to the 1994 Convention.  The scope should to be broadened.  It should be in the form of an optional protocol.  The question of “declaration of risk” should be omitted.

He said the working group also recommended that the Ad Hoc Committee continue working on expansion on the scope, by means of including a legal instrument.

Speaking on the matter were the representatives of Congo, Switzerland, Australia, New Zealand, Uganda, United States, Canada, Republic of Korea, Jordan, Liechtenstein, Norway, Croatia, Timor-Leste, Kenya, Argentina, Japan, Italy (on behalf of the European Union and Associated States) and Lebanon.

The Sixth Committee will meet again at 10 a.m. on Monday, 27 October, to begin more than a week-long debate on the report of the International Law Commission on the work of its fifty-fifth session.

Background

The Sixth Committee (Legal) met this morning to continue its consideration of the convention on jurisdictional immunities of States and their property, and to begin considering the scope of legal protection of United Nations and Associated Personnel.  The Committee was also expected to take action on a draft resolution concerning the International Criminal Court and to hear the introduction of a draft on the Charter relating to assisting third States affected by sanctions.  (For background on jurisdictional immunities, see Press Release GA/L/3236 of 21 October).

Reports

Before the Committee is a report of the Ad Hoc Committee on the scope of the legal protection under the Convention on the Safety of United Nations and Associated Personnel (document A/58/52).  It covers proceedings of the Ad Hoc Committee’s fifty-eighth session (New York, 24-28 March).  Established in 2001, the Ad Hoc Committee is charged with considering measures to enhance the existing protective legal regime for United Nations and associated personnel.

The report states that the Ad Hoc Committee met as a working group of the whole, and was briefed on recent developments in the security situation of United Nations personnel, as well as on the legal issues involved in protecting them, by representatives of the Legal Affairs Office, the Security Coordinator’s Office, the Office for the Coordination of Humanitarian Affairs, and the office of the United Nations High Commissioner for Refugees.

Further, the report says discussions in the working group centred on the agreement that every effort should be made to strengthen the safety of United Nations and related personnel.  It was noted that local United Nations staff, and those of humanitarian agencies and non-governmental organizations (NGOs), continued to be targeted.  Also, a limited number of States were party to the Convention, and steps should be taken to have it signed or ratified, perhaps by the Secretary-General, asking States to document measures taken towards that end.  Delegations expressed satisfaction with progress over the past year and with short term measures implemented.  They supported the preparation of model or standardized provisions to be included in agreements between the United Nations and NGOs.  However, their views varied on how far and by what means to enhance the protective regime, with the differences centred on the declaration of “exceptional risk” element.

Annexed to the report are three proposals for addressing the question, including the possibility of formulating a protocol to the Convention or drafting a stand-alone instrument that would update certain provisions in light of recently adopted treaties.  Based on the working group’s discussions, the Ad Hoc Committee recommended that its mandate be renewed for 2004.  It also requested the Secretary-General to report on implementation of measures to achieve the Convention’s goals.

The Secretary-General’s report on the scope of legal protection (document A/58/187) states that key provisions of the 1994 Convention have now been introduced in a small number of status-of-forces and status-of-mission agreements in a negotiation phase.  Since no State has asked for information on matters of fact relevant to applying the Convention, the Secretary-General’s role as certifying authority on such matters is still to be tested.  The report contains a recommendation that agreements between the United Nations and non-governmental organizations (NGOs) should include a standard provision making clear that all personnel deployed by the Organization in a mission area are “associated personnel”.  However, the Secretary-General also emphasizes that the clause does not materially strengthen protection of personnel in a host country not already bound by the Convention.

Further, it has been determined that since no generally recognized criteria exist, it is neither viable nor desirable to link the declaration of exceptional risk by the Security Council or General Assembly to the internal mechanism, by which the Security Coordinator characterizes phases of security risk for personnel.

The one exception is where the Assembly or Council has already adopted decisions making it clear they consider the situation to present an exceptional risk in a particular area of operation, as in Afghanistan.  The Assembly is invited to issue a declaration that there exists an exceptional risk for personnel there.

The difficulties in issuing the declaration were the single most important limitation in the effectiveness of the Convention’s protective regime, the Secretary-General concludes.  He recommends giving serious consideration to dispensing with the need for the declaration as a condition for the Convention to apply.  Ultimately, he said, the strength of the Convention’s protective regime was in the readiness of States to implement it.  Since 1 January 1992, 198 civilian personnel had lost their lives, while in service to the Organization.  In only 21 cases had Member States declared they had taken action to bring perpetrators to justice.  The Assembly should call on the States concerned to investigate, arrest and prosecute those responsible.

The annex contains a list of United Nations civilian casualties in the field, as a result of malicious acts between 1992 and the present year.  The numbers are broken down by year.

The Working Group report (document A/C.6/58/L.16) contains the proceedings of the session held at Headquarters from 13 to 17 October.

Draft resolutions

The Committee has before it a draft resolution on the International Criminal Court (document A/C.6/58/L.14).  By it, the Assembly would invite the Secretary-General to take steps to conclude a relationship agreement between the United Nations and the International Criminal Court and to present the negotiated draft agreement to the Assembly for approval.

By the draft text, the Assembly would call upon States to consider, without delay, ratifying or acceding to the Rome Statute of the Court.  All States would also be called upon to consider becoming party to the Agreement on the Privileges and Immunities of the International Criminal Court, without delay.  The Assembly would also encourage efforts to promote awareness of the results of the 1998 United Nations Diplomatic Conference of Plenipotentiaries in Rome, which led to the establishment of the Court, with headquarters at The Hague, Netherlands.

Finally before the Committee is a draft resolution on implementation of the Charter provisions related to assisting third States affected by the application of sanctions (document A/C.6/58/L.17), included in the item of the report of the Special Committee, on the Charter and on strengthening the Organization.  By this draft, the Assembly would request the Special Committee, at its session in 2004, to continue considering the question on a priority basis.  It would also decide to consider further progress in the elaboration of measures at the next session of the General Assembly.

Statements on Jurisdictional Immunities

NGUYEN THI VAN ANH (Viet Nam) said the early adoption of the draft articles in the form of an international convention would not only successfully conclude one legal item on the agenda of the United Nations, but would also further contribute to the codification and progressive development of international law.  She said Viet Nam therefore supported the proposal for the convening of the Ad Hoc Committee again, to finalize the preamble and final clauses for a future convention.

ALBERT HOFFMAN (South Africa) said the finalization of the draft articles was an important achievement.  The need for regulations and uniform rules on the jurisdictional immunities of States and their property was underscored by the increased participation of States and their agencies in international commercial ventures.  The impact of globalization had also contributed to the need for clarity on the law on State immunity.  South African government officials had already undertaken a preliminary study of the impact of the draft articles on the relevant South African legislation.  His delegation supported the incorporation of the draft articles into a convention.  It might be necessary to reconvene the Ad Hoc Committee to for a final meeting early next year.

OLEKSIY ILNYTSKYI (Ukraine) said the issue of jurisdictional immunity was important to international law, but also to State activities.  The successful conclusion of the Ad Hoc Committee’s work was a significant step forward in providing stability and predictability in interactions between States and private parties.  The uniform regime would promote consistency in international commercial transactions and would encourage international trade.  The progress made by the Ad Hoc Committee gave strong impetus to codification efforts.

He said the draft articles should form the basis of a convention to assure that it was legally binding and directly applicable by national courts.  It would set out clear rules on jurisdictional immunities and limit the proliferation of varied national regulations.  It would also avoid the lack of true codification on the matter, a condition that adopting instruments of a different nature could produce.  Regardless of advantages in a model law, it carried insufficient legal weight in a very important area.

ROBERTO LAVALLE-VALDES (Guatemala) said the Ad Hoc Committee’s work this year had been dramatic, in that it had been instructed by the Assembly to “make a last effort” at the codification of the jurisdictional immunity issue.  That only demonstrated how difficult the task had been.  His country was one of those in the majority lacking legislation on immunity.  Roughly speaking, the volume of case law on any international issue was equivalent to the size of its economy.  It was not surprising that such States needed to rely on international customary law.  If those laws did not exist, in relation to a problem the country encountered, developing countries would have no guidance.  The articles should serve as the basis of a convention.

K. KALAVENKATA RAO (India) said his delegation supported the adoption of the draft articles in the form of a convention, which alone would provide clarity, uniformity and certainty of applicable rules.  It would also help clarify the scope and nature of the immunities of States and their property in legal proceedings concerning their commercial activities.  India supported the continuation of work by the Ad Hoc Committee on transforming the understandings reached into a convention.

ALEJANDRO RODILES (Mexico) noted the broad agreement on the text.  Mexico would support the adoption of the draft articles as a convention.  An international instrument could be extremely useful to States.  It supported the establishment of an Ad Hoc Committee to determine the relationship of the articles to other treaties.  The debate should be focused on the final understandings reached.  These should serve as an interpretative guide.  On reservations, he said there should be flexibility on them.  He said the peaceful settlement of disputes could not be absent from an instrument on immunities.

MAHMOUD HMOUD (Jordan) said it would be better for the draft articles to be adopted in the form of a declaration.  The issue of a convention should be deferred until States practice, and international jurists could provide, the necessary clarification to some provisions with which his delegation had problems, such as the “understandings” contained in Annex II of the committee’s report.  His delegation did not object to compromise on the text of article 11 concerning the dismissal or termination of employment.  That should not be interpreted as acquiescence by Jordan to the provisions of that article [para 2 (d)].  The understanding reached on that provision should not have the effect of allowing authorities of one State to make judicial determinations on the political decisions of another, including matters of national security.

KARIM MEDREK (Morocco) said the Special Committee had made much progress by getting beyond its differences.  The draft articles should lead to the adoption of an acceptable legal instrument.  It was high time for a uniform regime that would offer States certainty in the area at a period when they were increasingly encountering situations involving jurisdictional questions.  The articles should be adopted as a convention.  A special committee should be convened to finalize the preamble and final clauses of the document.

RAM BABU DHAKAL (Nepal) said a legally binding instrument on the complex issue of jurisdictional immunities of States was long overdue.  Adopting the 22 draft articles as a whole was a great achievement.  A special committee should be given a new mandate to finalize the preamble and conclusion at a meeting convened in the spring.

International Criminal Court

The Committee took up the draft resolution on the International Criminal Court (document A/C.6/58/L.14).

Speaking in explanation of position before the vote, the representative of the United States said his country’s opposition to the Rome Statute had not changed.  He could not join consensus.  He was still concerned about politically-motivated prosecutions, the Court’s jurisdiction and its relation to the Security Council.  At the same time, the United States supported tribunals, and it trained its armed forces to respect its responsibilities under international law.  The opposition of the United States to the Court was based on a respect for a rule of law, and not a rejection of it.  Status of forces agreements were the appropriate forum in which to deal with the questions proposed to be put before the Court.  The United States respected the position of those supporting the Rome Statute and did not seek to undermine the Court.

The resolution, as orally amended, was approved without a vote.

In explanation of position after the vote, the United States representative disassociated himself from the adoption of the resolution.

Special Committee on the Charter

The representative of the Russian Federation introduced the draft of the Special Committee of the Charter and on strengthening the Organization, with its resolution on implementation of the Charter provisions related to assisting third States affected by the application of sanctions (document A/C.6/58/L.17).

Scope of Legal Protection

CHRISTIAN WENAWESER (Liechtenstein), chairman of both the Ad Hoc Committee and its working group, introduced their reports.  With regard to the Ad Hoc Committee’s report, he noted that it had considered three proposals.  One by New Zealand contained a draft protocol to the Convention providing for the automatic application of the Convention to all United Nations operations or presences.  A proposal by the European Union contained amendments thereto, and a proposal by Pakistan related to the declaration of exceptional risk.  The Ad Hoc Committee had recommended that the Assembly renew its mandate for 2004.

With regard to the working group report, he said the group’s work had proceeded on the basis of some of the proposals submitted by the Ad Hoc Committee, the Secretary-General’s reports and a proposal submitted by Jordan.  The group had made much progress, which included giving a more precise definition of “United Nations operations” to which an expanded legal regime would apply, by reflecting the notion of “risk” with a view to dispensing with the requirement to make a declaration.  Jordan’s proposal had been a valuable contribution to the debate.

Further, he said, it was generally agreed that setting up a new legal regime should not disturb the existing legal regime under the 1994 Convention.  The idea of drafting a protocol found strong support.  Reservations were expressed regarding the nature of the protocol and its eventual relationship with the Convention.  The working group had recommended that the Ad Hoc Committee be reconvened with a mandate to expand the scope of legal protection, by means which would include a legal instrument.

LAZARE MAKAYAT-SAFOUESSE (Congo) said attacks on the United Nations and associated personnel were becoming a source of great concern.  An example was seen in the recent attack against the United Nations personnel in Baghdad.  Attention should be focused on the question of protection for such personnel.  He said an effective protection regime should be developed to allow those personnel to do their work effectively.  He said his country supported the adoption of such an instrument to fill the gaps in the 1994 Convention, and it would accede to the Convention, as well as to the Rome Statute of the International Criminal Court.

JÜRG LAUBER (Switzerland) condemned the attack on the United Nations headquarters in Baghdad.  He said protecting United Nations personnel was of the utmost importance.  The gaps in the Convention must be closed by broadening the scope of the instrument.  Agreement within the working group had been firm on three issues, on needing to broaden the Convention’s scope, on deleting the reference to risk, and on creating a new instrument through an optional protocol.  As a depository of the Geneva Conventions, his country was pleased with the work accomplished.

MICHAEL BLISS (Australia) said the United Nations had been a shield until August when it became an object of attack.  The United Nations must become a symbol of protection again.  It was necessary to extend the scope of protection to United Nations and associated personnel.  The Committee had made substantial progress and had come to agreement on three important points.  The starting point on how to expand the scope of protection was to make sure that the Convention was not weakened.  He supported an optional protocol for making the expansion, and he said the working group had, in fact, been the Committee itself at its very best. 

ELANA GEDDIS (New Zealand) said the 1994 Convention offered a legal framework on actions against United Nations and associated personnel.  Its full adoption and implementation was an important step towards a scheme of legal protection for those who risked so much in the interest of peace. 

The key provisions of the Convention should be incorporated into status-of-forces, status-of-mission and host country agreements concluded by the United Nations with host States.  She said the Convention should apply automatically to all United Nations missions operating in the field -– whether peacekeeping and peace-building operations or political, development or humanitarian assistance.

JULIET SEMAMBO KALEMA (Uganda) said he wished to raise some issues of concern to her delegation, which should be considered during the next phase of the drafting of the future instrument, she said.  The element of risk should be retained in the consensus on eliminating “a declaration”, by the General Assembly or the Security Council, of the existence of an exceptional risk from the 1994 Convention.  Uganda preferred an optional protocol as the form that the future instrument should take.  She urged the Secretary-General to improve the practical measures for protecting United Nations personnel on the ground. 

ERIC ROSAND (United States) said he was aware of the risks faced by the United Nations and associated personnel in a variety of situations.  He condemned the bombing of the United Nations compound in Baghdad and said the United States was cooperating with local authorities in locating and holding the perpetrators accountable.  With respect to the Ad Hoc Committee’s discussions, and those of the working group, he said he was generally supportive.  A “stand-alone” protocol should be considered as the vehicle for possibly expanding the scope.  Not all elements of the Convention needed to be included, nor was it appropriate to include all of them in a protocol of expanded scope.

VASKEN KHAYABAN (Canada) said the security of United Nations and associated personnel should be enhanced by strengthening the United Nations security system and by improving international legal protection.  States hosting such personnel bore the primary responsibility for their safety and security, and for prosecuting the perpetrators of attacks.  States hosting peacekeeping operations should place priority on concluding status-of-forces, status of mission and host country agreements that included providing for the safety of such personnel.  The Secretariat should make further progress on concluding those agreements.

Welcoming the International Criminal Court, he called for a protocol that would provide an automatic trigger mechanism and include a wider range of United Nations operations than was currently covered.  The scope of protection should be expanded by means of a legal instrument, he said.  The protection should be extended to all United Nations operations, which should be defined in a clear and objective manner while ensuring there were no gaps.

EUN-JU AHN (Republic of Korea) said her delegation supported the convening of the Ad Hoc Committee early next year with a mandate to expand the scope of the legal protection under the Convention, including by means of a legal instrument.  There had been broad support in the Sixth Committee for eliminating the declaration of risk requirement, since it was hard to initiate and therefore not very effective in practice.  Regarding the expansion of the scope of application, her delegation noted the suggestion that the new protocol should designate the types of operations that posed risks by nature, rather than situations that were sometimes difficult to define.  However, she said the new protocol would to prepare for contingency of United Nations operations not normally associated with risks.

MAHMOUD HMOUD (Jordan) hoped progress would lead to successful conclusion of work on the convention.  The issue at hand was a complex one.  All appropriate measures should be taken by States to protect peacekeepers.  Jordan had decided to submit a proposal concerning elements to be included in any future instrument that expanded the scope of the protection under the convention.  The approach was to extend the protection regime to those United Nations operations that needed it and to exclude those that did not.

If the host State did not provide sufficient physical and legal protection to United Nations and associated personnel, the regime of the Convention should also apply in that situation.  Jordan’s proposal also tackled the concern of host and transit countries, in relation to violations of their national laws by personnel who participated in United Nations operations.

STEFAN BARRIGA (Liechtenstein) said legal protection was an indispensable means of increasing the security of United Nations personnel.  The Working Group’s progress should be carried over into the Ad Hoc Committee’s work, so as to lead to concrete results.  The scope of protection should be expanded to cover a larger number of United Nations presences.  That should be done by defining “United Nations personnel” more broadly than in the Convention, to do away consequences of the definition in terms of obligations placed on host States should be reviewed, so as to balance the valid interests of the host State and the equally valid interests of United Nations personnel.

He said a Convention that protected only United Nations staff, who were armed to protect themselves, was too narrow in scope.  One that placed unnecessary burdens on States would remain limited in ratifications and relevance.  A future regime should address measures to be taken before an attack and those to be taken after.  The actual risk of attack should be connected only with the former.  The second set of measures should make no differentiation between levels of risk; once the United Nations presence in the field was attacked, the host State should exercise obligation.  It made no sense to argue that personnel in low-risk operations should not be afforded that redress.

JOHAN LOVALD (Norway) said efforts must be intensified on all levels to restore respect for the inviolability of humanitarian space, through practical measures, prosecution of perpetrators and increased normative clarity.  The United Nations security management system must be improved and states must take stronger actions to ensure consequences for acts taken against United Nations personnel.  A climate of impunity was unacceptable.  The scope of the Convention must be expanded and the applicability extended to all United Nations operations, as New Zealand had proposed.

IRENA CACIC (Croatia) welcomed recent progress in protecting United Nations personnel and said the changing nature of United Nations engagement in the field made the Convention, at present, much too narrow for triggering the application of the relevant criminal law regime.  The difficulties of issuing a declaration of exceptional risk had the most limitation.  The scope must be expanded to all United Nations operations and categories of personnel, regardless of the security situation.  An additional protocol should be elaborated based on the principle of the Convention, automatically applying to all operations.

JOSÉ LUIS GUTERRES (Timor-Leste) said the strength of the Convention’s protective regime was in its universal ratification or accession, and in the commitment of States to implement its provisions.  His country would shortly ratify the Convention.  The scope must be expanded, since locally recruited personnel were particularly vulnerable to attacks directed at the United Nations, as had occurred in his country during the United Nations Mission in East Timor (UNAMET).

ROSALYN AMADI (Kenya) said that as a contributor to United Nations peacekeeping operations, and as host to the United Nations Environment Programme (UNEP), United Nations Habitat and other United Nations agencies, her country supported initiatives to enhance the protection of United Nations and associated personnel.  It agreed with the renewal of the Ad Hoc Committee’s mandate for 2004 and believed that Committee would redouble its efforts to fulfil that mandate.  Obstacles that kept States from joining the 1994 Convention should be addressed.  Kenya hoped to complete the process leading to its ratification of the instrument.

RICARDO BOCALANDRO (Argentina) said that Argentine troops had participated for the first time in United Nations peacekeeping operations in the 1960s, in the Congo, as it was then known.  Argentina had therefore always been interested in protection for United Nations personnel.  In February 2000, the Foreign Minister of Argentina had presided over a special open meeting of the Security Council, which discussed protection for United Nations personnel in peacekeeping and other operations.  A statement issued after that meeting had expressed concern about attacks against United Nations personnel.

He said there was need for a universal approach to the question of protection of United Nations and other personnel.  He hoped a consensus would be arrived at, on discussions over a protection regime for such personnel, as in the past.  A regime should be adopted to protect the personnel, as well as to punish perpetrators of attacks against them.  The 1994 convention provided that protection.  His delegation supported work on the idea of an optional protocol to maintain the integrity of the Convention.  He said proposals offered by Costa Rica and Jordan formed the basis for continued work on the protection regime, and his delegation would join in efforts to arrive at a text acceptable to all.

HIROSHI MATSUURA (Japan) said his delegation attached great importance to the protection of United Nations and associated personnel.  It welcomed progress that was made in the working group.  Jordan’s proposal had contributed greatly to the work of the working group.  They formed a good basis for further discussions.  He also said it was essential for discussions to continue on the basis of those proposals.

GIUSEPPE NESI (Italy), speaking also for the European Union and its associated States, reiterated its support for the short- and long-term measures proposed by the Secretary-General in his 2000 report, which aimed at improving and enhancing the protective regime of the 1994 Convention.  He said the European Union also reiterated the importance it attached to the strengthening of the safety and security of personnel engaged in United Nations peacekeeping and humanitarian operations.  To punish those responsible for attacks against such personnel, it was necessary that participation in the Convention be encouraged.  The European Union believed that the International Criminal Court, having now become operational, could play a role in that regard.

He said the European Union considered the requirement of an exceptional risk declaration to be a major limitation to the Convention, and it supported the disposal of that requirement.  In its view, the 1994 Convention should apply automatically, without distinction, to any operation conducted under United Nations authority and control.  It fully endorsed the conclusions and recommendations of the working group, that the Ad Hoc Committee established under General Assembly resolution 56/89 be reconvened with a mandate to expand the scope of legal protection under the Convention, through a legal instrument.

MICHEL KATRA (Lebanon) recalled that the United Nations Interim Force in Lebanon (UNIFIL) had been working in his country for 25 years.  One part of the country was still occupied.  The scope of protection for United Nations personnel must be broadened.  He endorsed the proposals and the work of the Committee and its working group.

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