The Preparatory Committee on the Establishment of an International Criminal Court this morning began its three-week session, electing Adriaan Bos (Netherlands) as Chairman.
The Preparatory Committee is charged with developing a widely acceptable, consolidated text of a convention establishing an international criminal court which would be considered by a conference of plenipotentiaries. It will take into account views expressed in the Ad Hoc Committee on an International Criminal Court, in the General Assembly's Sixth Committee (Legal), and in the written comments of States. The work of the Preparatory Committee is based on a draft statute prepared by the International Law Commission.
Also this morning, Cherif Bassiouni (Egypt), Silvia A. Fernandez de Gurmendi (Argentina) and Marek Madej (Poland) were elected Vice-Chairmen of the Preparatory Committee. Jun Yoshida (Japan) was elected Committee Rapporteur.
At a meeting of the Committee's Bureau during a suspension of this morning's session, it was decided that the Preparatory Committee would begin its work with a discussion of the "core crimes" which might be considered by the proposed court: genocide, crimes against humanity, war crimes and aggression.
In discussion this morning, the representative of the United Kingdom urged that the criminal court statute precisely define crimes to be considered by it, so as to comply with the principle of nullum crimen sine lege (no crime without law). The representatives of India and Algeria urged that the court include the crime of terrorism in its statute.
Speakers generally agreed that in defining the crime of genocide, the proposed court should employ the definition contained in the 1948 Genocide Convention.
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The representatives of Yemen, Argentina, Canada, Egypt, Italy, Austria, Australia, Russian Federation, Mexico, Netherlands, Israel, South Africa, United States, Ukraine, Finland, France and China, as well as the observer for Switzerland spoke.
Hans Corell, United Nations Legal Counsel, told the Preparatory Committee that due to financial constraints, not all documents were available in all official languages for general distribution.
When it meets again at 3 p.m. today, the Preparatory Committee is expected to continue its discussion of core crimes.
Committee Work Programme
The Preparatory Committee on the Establishment of an International Criminal Court met this morning to begin its first session. The Committee was set up by General Assembly resolution 50/46 of 11 December 1995 and is charged with preparing a widely acceptable consolidated text of a convention for such a court as a step towards consideration by a conference of plenipotentiaries.
By the terms of the resolution setting up the Preparatory Committee, its word would be based on the draft statute prepared by the International Law Commission but should take into account the report of the Ad Hoc Committee on the establishment of the court. It should also take into account the written comments submitted by States to the Secretary-General on the draft statute as well as contributions of relevant organizations. The Committee is open to all Member States of the United Nations, members of specialized agencies and members of the International Atomic Energy Agency.
The Committee had before it the report of the international Law Commission on the work of its forty-sixth session (document A/49/10), containing the 60-article draft statute; and the report of the Ad Hoc Committee on the establishment of the court (document A/50/22), in which it recommends that the Assembly organize future work towards an early completion of such a draft convention. It also had before it comments on the draft statute received pursuant to Assembly resolution 49/53 on the establishment of the court (document A/AC.244/1 and Add.1-4); the preliminary report of the Secretary-General on the provisional estimates of the staffing, structure and costs of the establishment and operation of the court (document A/AC.244/L.2); and reports of the Secretary-General relating to Security Council resolutions 808 (1993) and 955 (1994) on the International Criminal Tribunals for the Former Yugoslavia and for Rwanda (documents S/25704, Add.1 and Corr.1-2 and S/1995/134). (For background, see Press Release L/2760, of 22 March.)
Statement by Legal Counsel
HANS CORRELL, United Nations Legal Counsel, said that following its elaboration of a 60-article draft statue for an international criminal court, the International Law Commission recommended that the General Assembly proceed to convene an international conference of plenipotentiaries to conclude a convention establishing the court.
The Assembly's Ad Hoc Committee had made considerable progress on reviewing major substantive and administrative issues. There were however, different views among participating States on those issues and further discussions had been considered necessary. The Ad Hoc Committee recommended, he said, that those discussions be combined with the drafting of a consolidated text of a convention.
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The Preparatory Committee had been charged by the General Assembly with discussing major substantive and administrative issues arising out of the draft statute; and to draft texts with a view to preparing a widely accepted consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries.
He said that due to financial constraints mandated by the General Assembly, not all documents were available in all official languages for general distribution.
Statement by Committee Chairman
ADRIAAN BOS (Netherlands), Committee Chairman, speaking after his election, said the world was waiting for complete results from the Preparatory Committee and expectations were high. There was a challenging task facing the Preparatory Committee, but it could take advantage of the deliberations and conclusions reached by the Ad Hoc Committee. The Ad Hoc Committee had clarified many of the substantive and administrative issues arising out of the draft statute of the court and proffered possible solutions to those issues. The Preparatory Committee could work with those recommendations.
SANKURATRIPAT RAMO RAO (India) said that while discussion in the Ad Hoc Committee and in the Sixth Committee of the General Assembly had focused on the core crimes, there had also been interest in discussing "treaty-based crimes". India believed that the proposed criminal court must deal with the issue of terrorism. If the court was to address crimes of universal international concern, terrorism must be among the crimes to be judged.
While his delegation endorsed the idea of discussing the core crimes, he hoped that it would also discuss treaty-based crimes, as had been suggested by the original draft statute of the International Law Commission. Terrorism should be considered a core crime, he said.
Committee Chairman Mr. BOS (Netherlands) said that following discussion of core crimes, delegations would be free to bring to the attention of the Committee any additional crimes.
NOUR-EDDINE SIDI ABED (Algeria) said that he agreed with India that the Committee should take up treaty-based crimes including terrorism. He hoped that the Committee would be flexible and adopt a non-limited approach to the crimes to be considered by the court.
ELIZABETH WILMSHURST (United Kingdom) endorsed the programme of work suggested by the Chairman. Listing crimes without defining them was
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inconsistent with the principle of nullum crimen sine lege (no crime without law).
The task of defining genocide was a relatively easy one, she said. The Committee could merely defer to the definition of the crime contained in the Genocide Convention, or to replicate that definition in the proposed court's statute. The specific elements of crimes to be considered by a criminal court must be defined.
ABDULLA AL-SHAMMAM (Yemen) said the definitions of the crimes in the statute of the court should be clear and non-controversial. The Preparatory Committee should go back to define the core crimes against humanity and to discuss them in detail. Particular attention should be given to the issue of rules of conflict since they differed from one place to another.
SILVIA A. FERNANDEZ DE GURMENDI (Argentina) said definition of genocide was one of the relatively easier decisions to be taken by the Preparatory Committee. The Committee should resist the temptation of trying to improve on the definition contained in the Genocide Convention.
PETER MCRAE (Canada) supported the position that the Preparatory Committee should start by looking at the core crimes first and should confine itself to the definition of genocide contained in the 1948 Convention. The wording of that Convention should be repeated in the statute of the court. Canada was prepared to submit a proposal on that point using the wording of the Genocide Convention.
On the question of intent, which had been a source of controversy, he said that Canada planned to propose wording on applicable law dealing with elements of offences, including the mental element. That proposal would include wording regarding intent, including in the case of genocide.
NABIL A. ELARABY (Egypt) said if definitions of crimes were made part of the statute of the court, it would not be possible for the court to implement action with regards to crimes not mentioned in international conventions. Attaching the definitions of crimes would also result in inflexibility since the court would not be able to adapt to changing circumstances.
While Egypt agreed with the 1948 Convention, it was possible that events in the future might lead to cancellation or change in the Convention and adoption of a broader one, he said. If that happened and the statute of the court had adopted the definition contained in the Convention, the court would be unable to work on the basis of the new convention. He proposed wording in the statute that would empower the court to look into the "following crimes according to valid international law". The statue should then enumerate the crimes but should refrain from defining them.
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MAURO POLITI (Italy) said that definitions for genocide could be found in the Genocide Convention, in article 4 of statute of the International Tribunal for the former Yugoslavia and in article 2 of the statute of the International Tribunal for Rwanda. Certain acts, such as murder of certain social or political groups, could also be considered a crime against humanity. It remained to be seen whether the international criminal court would have inherent jurisdiction over crimes against humanity.
Definitions of genocide for the purposes of the criminal court should mirror those in article 3 of the Genocide Convention which includes conspiracy, incitement and complicity as crimes.
GERHARD HAFNER (Austria) said that the definition of genocide contained in the Genocide Convention should be employed by the proposed court. Discussions on ancillary crimes -- such as complicity and conspiracy -- could be undertaken thereafter.
MARK JENNINGS (Australia) said that the definition of genocide contained in the Genocide Convention should be reproduced in the statute of the international criminal court. Ancillary crimes and intent should be discussed. Expansion of the definition of genocide to include social and political groups would have to be discussed in detail, as it had been in the Ad Hoc Committee. The inclusion of crimes against those groups under crimes against humanity might be an alternative approach to modifying the language in the Genocide Convention.
Australia believed that under customary international law, there was no requirement that crimes against humanity take place only during war, he said. Any crimes against civilian populations -- even in times of peace -- could constitute crimes against humanity. A campaign of acts against certain political and social groups could easily constitute a crime against humanity.
ROMAN KOLODKIN (Russian Federation) said that the statute of the court should reproduce the definition contained in the Genocide Convention, as had been done for the statutes of the tribunals for the former Yugoslavia and for Rwanda. The idea of amending that definition to include social and political groups would be counter-productive.
SOCORRO FLORES-LIERA (Mexico) said that the current wording of the draft statute was problematic. The statute should precisely define crimes falling under its purview. The crime of genocide should be defined under the terms of the Genocide Convention.
H. VON HEBEL (Netherlands) said that the 1948 Genocide Convention should guide discussions. The wording of that Convention had been predicated upon
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the experience of the Second World War. A definition of the crime in the wake of the wars in the former Yugoslavia and in Rwanda might produce other definitions. There should be no nexus between crimes against humanity and warfare. Genocide and war crimes were subsets of general law regarding crimes against humanity.
ELI NATHAN (Israel) said that the statute should properly define crimes under the purview of the court. The 1948 Genocide Convention should serve as a model. The Preparatory Committee had no mandate to embark upon the progressive development of international law. The statute of the court should reproduce the definition contained in the Genocide Convention. Israel had misgivings about eliminating treaty-based crimes from the court's statute.
PIETER KRUGER (South Africa) said that his delegation supported the idea of including in the statute the definition of genocide contained in the Genocide Convention. The court should not focus on the codification of law, but on determining the applicability of existing law.
JOHN HOPE (United States) supported the inclusion of genocide in the statute of the court. The crime of genocide was recognized internationally and so the statute should apply to all States whether or not they were parties to the Genocide Convention. The definition of genocide should follow the definition in that Convention. To try to add to that definition would just create controversy. The Preparatory Committee should resist the temptation to add new categories to the definition included in the Genocide Convention.
However, he said, that Convention's definitions were not entirely adequate and that key questions should not be left to the judges of the international criminal court. Elements of the crimes should be drafted as part of the court's statute. Additional related crimes should be included in the statute in a way that made them applicable to all crimes and not just to genocide. It was also necessary to address the issue of clarity. For example, what was meant by mental crimes in the draft statute should be clarified. The judges of the court required additional guidelines.
VASSYL T. MALYARENKO (Ukraine) said that the creation of an international criminal court would help check the avoidance of punishment for crimes which distressed the international community. Each crime needed to be defined. There should also be clear definitions in the statute and reference to international conventions. Alternatively, the statute of the court should include a provision for punishment for normal crimes.
HOLGER ROTKIRCH (Finland) supported the emerging agreement that the definition of genocide contained in the 1948 Convention should be adopted. He said that on the so-called ancillary crimes, Finland supported the view that they should be inserted in the statute at some point.
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HUBERT LEGAL (France) said precise definitions of the crimes were needed and the statute should be as specific as possible. France agreed that the crime of genocide should be defined by adopting the definition in the 1948 Convention. The desire to improve the wording contained in that Convention was not appropriate at present.
LIU ZHENMIN (China) said the proposed court should adhere to the principle of neutrality. Its jurisdiction should be confined to the most serious international crimes. The Preparatory Committee was determining the applicability of existing law; it should not endeavour to codify new law. As to the crime of genocide, the court should directly reproduce the definition contained in the Genocide Convention.
LUCIUS CAFLISCH, observer for Switzerland, said that crimes to be prosecuted by the court should be defined in its statute. In defining the crime of genocide, the court should rely on the Genocide Convention. That definition, which was now part of customary international law, should be reproduced in the statute of the court. Switzerland believed that the core crimes to be considered by the court should be punishable under general international law.
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