Mr President, Distinguished Delegates, Ladies and Gentlemen:

Six years ago, in 1992, the United Nations International Law Commission (ILC) commenced substantive work on a Draft Statute for an International Criminal Court.  As the Secretary-General mentioned in his opening remarks this morning, the earlier work of the ILC in the 1950s and again in the 1980s was merely exploratory, and progress was blocked by disagreements over many issues.  In 1992 the ILC had a mandate to draft a Statute, which it adopted after two years work, in July 1994, and recommended to the General Assembly.  I should record with gratitude the work of Judge Abdul Koroma and Maître Doudou Thiam in the production of that text.  But we little thought that the process of subsequent negotiation and discussion which was obviously called for would involve so much time of so many people, or that we would be here in Rome today, it is devoutly hoped, to crown that process by adopting a Convention.

Let me recall the six main characteristics of the ICC which the Commission recommended in 1994.

First, it was to be a permanent court which would sit as required; thus it had to have an in-built flexibility to work as required.

Second, it was to be a court created by treaty under the control of the States parties to the treaty, but in a close relationship to the UN, including the Security Council.  It would thereby obviate the need for further ad hoc tribunals.  The creation of ad hoc tribunals by emergency resolution after the crimes have started to be committed may be necessary, but it is legally undesirable.

Third, it would be a court of defined jurisdiction over grave crimes of an international character under existing international law and treaties.  It relied on a substantive droit acquis, an existing body of law, in the field of international criminal law, although it was recognised that in certain areas, especially crimes against humanity and war crimes in internal armed conflict, that droit is only partiellement acquis, only partially acquired, and is still unsatisfactory.

Fourth, the Court's jurisdiction – with the significant exception of genocide – would be dependent on the acceptance of States or on triggering by the Security Council under Chapter VII.

Fifth, the Court would be integrated with the existing system of international criminal assistance.  It was not intended to displace existing national systems in cases where those systems were capable of working properly.  Hence the principle of complementarity.

Sixth, it was to be a Court which would offer full guarantees of due process as recognised by international law.  This was vital.

And now we have a revised text, done on the basis of so much time and effort, for which Adriaan Bos, regrettably absent today, is owed so much credit.  The negotiating text varies from the Commission's 1994 draft in many respects and it is natural that it should do so.  For one thing, the new text has a large number of brackets.  Our text had none.  No doubt it is easier to get agreement from 34 independent experts representing the principal legal systems of the world than it is from the governments of the world!

But there are also changes in substance.  Of the six principles I have listed, the one which has been the most changed is the third, the reliance on existing international law and treaties.  The revised Draft Statute is making a major effort to consolidate, expand and develop substantive international law, relying only to a very limited extent on the droit acquis.  That is very desirable, if real agreement can be achieved.  The ILC itself sought to develop the substantive law in its work on the Code of Crimes against the Peace and Security of Mankind, which has been one of the sources of the present text.  But at the time the ILC began work on the Court, the level of doubt and scepticism about the project was much greater than it is today, and we thought and feared that the international community was only ready for a very light and flexible structure, one with only the minimum elements necessary to be a court in the proper sense of the word.  I am very glad that we seem to have been proved wrong.  I am very glad that the international community, at the same time as creating an absolutely necessary permanent Court for the trial of the worst crimes under international law, is prepared to develop and improve upon the law the Court is to apply.

I only hope that the praiseworthy efforts to develop the law, and associated matters such as remedies for victims, do not turn out to stand in the way of the main objective, the very creation of a viable and effective independent Court.  Let us not be deflected from that goal, and if necessary let us think about ways in which new developments in substantive law, and even new crimes, can be brought within the jurisdiction of the Court as time passes and the law progresses.  In that sense the process of developing a satisfactory permanent international criminal court may be a continuing one, like the process of building Rome itself; not something completed at a single conference.  But let us at least take the first essential step at Rome (a concrete step if not a marble step!), that of the creation of the permanent Court, with such additional elements as can be agreed on.  Let us not make the best the enemy of the good.  Let us not make the best – a fully developed international criminal code – the enemy of the good – a permanent international criminal court.

Other aspects of the ILC's original design have also been controversial, especially the question of its relation to the Security Council.  The ILC always thought that links with the Security Council would be required, in view of its Charter responsibilities and the fact of its creation of two ad hoc tribunals.  It will be for you to balance the partially conflicting requirements here, the need for independence of the Court, on the one hand, and the need for the process of prosecution of suspects and punishment of the guilty to be effective, on the other hand.  I would only point out that the ILC's Article 23 was a conscientious attempt to strike that balance, in allowing Security Council reference to the Court but in avoiding a veto to the Security Council except in cases in which the Council is in fact taking action under Chapter VII, a situation which does require coordination between Court and Council.

Mr President, the ILC, responsible for the design of the concept of an ICC, can only wish all the best to the actual architects and draftsmen of the Court, represented here in Rome.  It was inevitable that the original concept would need to be developed and refined at the political level.  This is not a merely technical exercise.  At the same time it is remarkable that the work has been inspired by so many concerns to further define and develop international law, including international law which was the product of arduous negotiations, such as the second Protocol of 1977.  We can all hope that the international community is ready for these substantive advances, and at the same time that they will not obscure the essential need for better and effective international procedures for the investigation of crimes and the prosecution and trial of the accused, in accordance with those international standards of due process which represent the common heritage of humankind.

Mr President, in the city of Rome it may be appropriate on behalf of the ILC to declare a nihil obstat for the work of the Conference.  May your work go well and speedily, and produce an effective and just statute for an International Criminal Court, an indispensable accompaniment to the advance at the international level, of the rule of law.

Thank you for your kind attention.