USE OF WEAPONS OF MASS DESTRUCTION SHOULD BE INCLUDED IN CRIMINAL COURT'S DEFINITION OF WAR CRIMES, SAY SEVERAL CONFERENCE SPEAKERS

L/2882
18 June 1998

USE OF WEAPONS OF MASS DESTRUCTION SHOULD BE INCLUDED IN CRIMINAL COURT'S DEFINITION OF WAR CRIMES, SAY SEVERAL CONFERENCE SPEAKERS

18 June 1998


Press Release
L/2882


USE OF WEAPONS OF MASS DESTRUCTION SHOULD BE INCLUDED IN CRIMINAL COURT'S DEFINITION OF WAR CRIMES, SAY SEVERAL CONFERENCE SPEAKERS

19980618 (Reissued as received from an Information Officer.)

ROME, 18 June -- The United Nations Conference on the Establishment of an International Criminal Court heard this morning several calls for the inclusion of the use or threat of use of nuclear weapons, anti-personnel mines and other weapons of mass destruction under the Court's definition of war crimes.

Methods of warfare, like the use of nuclear weapons which cause unnecessary suffering or which are inherently indiscriminate should be covered in the statute of the court, the representative of Samoa said. The recent and crucially important advisory opinion of the International Court of Justice in the case concerning the legality of the threat or use of nuclear weapons, which is relevant on the matter, should be taken into account in the detailed negotiations on this issue, he added.

Bangladesh's representative urged the Conference to consider bringing the dangers of nuclear proliferation within the purview of the statute.

Nigeria's Attorney General and Justice Minister declared that the use or threat of use of nuclear weapons, the use of anti-personnel mines and other weapons of mass destruction should be considered as war crimes.

A representative of the Women's International League for Peace and Freedom said the inclusion of certain weapons systems under the definition of war crimes is an issue which tests the international community's commitment to creating an impartial judicial system. A provision in the statute has a list including chemical weapons but excludes landmines, blinding laser weapons and nuclear weapons. This would create an "absurd" result whereby, under the statute's provision, the court would have jurisdiction if someone killed one civilian with a poisoned arrow or dum-dum bullet, but would not be able to act if the person incinerated a hundred thousand civilians with a nuclear weapon.

The Executive Director of Human Rights Watch said that if the United States and a handful of other countries continued to insist on what amounts to immunity from prosecution, the commitment of like-minded States and the many others that supported their position would be tested by an equally clear choice: whether to stand by or compromise principles.

Other speakers this morning were the Ministers of Justice of Sudan and Madagascar, the Minister of Justice and Constitutional Development of Swaziland, the President of the Magistrate Court of Oman, and the representatives of Turkey, Thailand, Mexico, Bangladesh, Switzerland, Malaysia, Malawi, Samoa, Qatar, Cape Verde, Niger, Viet Nam and the Democratic Republic of the Congo.

Also speaking were the Deputy Executive Director of the United Nations Children's Fund (UNICEF), a representative of the Secretariat of the Caribbean Community, and a representative of the Sovereign Military Order of Malta, a non-governmental organization.

The plenary of the Conference will meet again at 3 p.m. today when it is expected to conclude hearing general statements.

Conference Work Programme

The United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court met this morning to begin its final day of general statements.

Statements

ALI M.O. YASSIN, Minister of Justice of Sudan: As stipulated in the preamble and articles of the draft statute, the role of the International Criminal Court should be complementary to that of national criminal courts. States parties should endeavour to ensure the Court's effectiveness and refrain from interfering in its activities. Equally important, they must protect it from interference by international political organs. The International Court of Justice should serve as a model for the Court's impartiality and independence.

The Conference's collective endeavours should aim at enabling the Court to contribute constructively to achieving peace and security. Empowered by its statute, the Court should consolidate customary legal principles, with attention being paid to the sovereignty of States. Protection of national sovereignty, as provided for in the Geneva Conventions, can be guaranteed if the Court's prosecutor does not interfere in the affairs of States.

MEHMET GUNEY (Turkey): Recent developments have confirmed the timeliness of creating an International Criminal Court. The proliferation of ad hoc tribunals might lead to inconsistency in international criminal law, and the establishment of a permanent Court will prevent such a possibility.

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The proposed Court must be complementary to national tribunals and their current efforts to implement laws. Since individuals will be prosecuted, it is important to be aware of their rights and to have judges from different cultural backgrounds.

Certain crimes in the statute are not precisely defined, and the crime of aggression still does not have a precise definition. Aggression is an act of a State and not of an individual and the competent organ to characterize it is the Security Council.

The crime of terrorism, when it is systematic, falls under the category of crimes under international law. Terrorist activity in many instances is supported by illicit drug trafficking. Therefore, both such crimes should be included under the jurisdiction of the Court. The autonomy of the prosecutor goes without saying under international law. Reservations to the statute should be allowed. The ratification of at least one third of Member States of the United Nations should be required for the treaty to enter into force.

SAMBOON SANGIAMBUT (Thailand): Thailand hopes for a permanent international criminal tribunal which is independent and truly impartial. The Court should in no way be superior to or supersede national courts, but must complement their functions.

Countries must act collectively to bring drug traffickers to justice. Thailand has dealt with crimes relating to narcotic drugs through extradition and other forms of international cooperation for many years. Yet such cooperation is not sufficient to effectively combat these crimes. In view of the urgent need to eradicate them, Thailand has proposed that illicit traffic in narcotic drugs and psychotropic substances should fall under the jurisdiction of the International Criminal Court.

To ensure the early, effective and continuous functioning of the Court, Thailand favours its financing, in the early stages, from the regular United Nations budget. Thereafter, State parties should assume responsibility as their number increases.

SERGIO GONZALEZ GALVEZ (Mexico): The independence of the Court must be maintained, thus the States represented at the Conference should not create a body linked to the United Nations.

The Court should complement national courts. Only core crimes should be under the jurisdiction of the Court, but crimes against women and children, particularly those involving sexual violence, should also be included under war crimes. The inclusion of the crime of aggression should only be included if there is agreement on the fact that not only the Security Council would be responsible for determining that aggression has been committed.

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In all activities of the Security Council relating to the Court, the right to veto should not be allowed. As for funding, the suggestion of creating a voluntary fund to finance the Court should be considered. The Court should not be financed by the United Nations regular budget.

MUHAMMAD ZAMIR (Bangladesh): The Court must reinforce the system for world peace and security and not weaken it. This can best be accomplished by a Court that is independent in character and free from interference. It should not only have inherent jurisdiction over core crimes but also enjoy a wide measure of acceptance and support. The distinction between international and non-international conflicts is becoming increasingly irrelevant. The Conference should focus its attention on the possible inclusion in the Court's jurisdiction of attacks on humanitarian workers and international peacekeeping personnel.

Consideration should also be given to characterizing systematic sexual violence and gender crimes in armed conflicts as crime against humanity. The list of war crimes should be expanded to cover the use and threat of the use of nuclear weapons. The dangers of nuclear proliferation should be considered as to whether it should be brought within the purview of the statute. Crimes to be included in the statute should be defined with clarity for the sake of deterrence and the integrity of this new process.

The Court should be financed from the regular United Nations budget to ensure global participation.

ANACLET IMBIKI, Minister of Justice of Madagascar: The Court should be impartial and independent and respect the right to self-defence. Its composition must reflect a well balanced geographical distribution. Madagascar supports The Hague as the seat of the Court.

The statute should include jurisdiction of the Court over the crimes of illicit drug trafficking, trafficking in small arms, and the deposit of nuclear waste in other States.

Progress in international law many times upsets traditions. However, resistance in many cases has really to do with other interests. Thus there should be a review clause in the final act.

The Court must be complementary to national jurisdiction, but to be effective it should be in charge of its own jurisdiction. It is important to have an independent prosecutor allowing, however, for the Security Council to refer cases to the Court. The triggering by the prosecutor could be subject to approval by the judges as a way of furthering justice.

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JAKOB KELLENBERGER (Switzerland): The time has come for decisive steps to be taken to create an International Criminal Court. The new Court should be provided with mandatory jurisdiction, without which it would be reduced to the level of other tribunals.

Other principles were essential: crimes over which the Court would have jurisdiction should be clearly defined. The provisions cannot allow perpetrators of heinous crimes to go unpunished. The core crimes of genocide, crimes against humanity and war crimes should be included in the Court's statute.

It is desirable that the Court's prosecutor also have a role in the trigger mechanism. The Court should not relieve national courts of their responsibilities. The Swiss Government supports the principle of complementarity, but that principle should not be formulated in a way that would encourage impunity.

MAWENI SIMELANE, Minister of Justice and Constitutional Development of Swaziland: The jurisdiction of the International Criminal Court should not replace national jurisdiction, but be applicable only in respect of core crimes -- genocide, crimes against humanity and war crimes -- where national judicial systems have collapsed or are unable to operate. The Court should have inherent jurisdiction over all the core crimes.

The idea of "consent of States" will render the court ineffective as States will, in most cases, be reluctant to cooperate. The Court should be devoid of political motivations to guarantee its universality, impartiality and independence. The relationship between it and the Security Council is important and the Conference should come up with an acceptable solution to the question of the Council's role in the discharge of its obligations under Chapter VII of the United Nations Charter.

The independence and effectiveness of the Court will depend on its ability to exercise jurisdiction when a national criminal justice system has failed. Swaziland supports the view that the prosecutor should be able to initiate proceedings on his or her own motion and must not rely on a third party to proceed. Information obtained from a source considered reliable by the prosecutor should be enough to allow him to initiate proceedings.

RAMANATHAN VANGADESAN (Malaysia): "Core crimes", namely the crimes of genocide, war crimes, and crimes against humanity, should be included in the statute of the Court, subject to certain reservations. Malaysia, however, is not inclined to support the inclusion of the so-called treaty crimes, including crimes of terrorism, crimes against United Nations personnel and drug trafficking, because these crimes should be best left to the national

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courts to deal with. Moreover, having these crimes within the ambit of the jurisdiction of the Court would only overtax it in terms of finance, manpower and other resources.

Malaysia takes note that the question of "trigger mechanism", which is inevitably related to the question of acceptance of the jurisdiction of the Court, has implications on the criminal jurisdiction of the national courts and hence the question of sovereignty, which should always be upheld. The principle should not be one which would hinder the successful invocation of the jurisdiction of the Court and thus undermine its intended effectiveness. With that principle in mind, Malaysia can consider supporting the "opt-in" mechanism, as it is more consonant with reality and pragmatism. It is not inclined to support the consent requirement to be extended to the State of nationality of the victim and the State of nationality of the accused.

While it is important for the prosecutor to act independently in discharging his or her duties, it is equally important for the prosecutor not to be empowered to investigate on his own initiative, since that could affect his integrity and credibility. Investigatory functions can only be effectively fulfilled with the full cooperation of States, especially those having a direct interest in the case.

KAMUDONI NYASULU (Malawi): Malawi seeks a Court that is independent; that will command the respect of all nations and those it would sit in judgement over, and that would be immune to outside interference. The Court should also be impartial, unbiased, fair and just. It must be effective, have adequate power to function and accomplish its mandate. It should bring impunity to an end.

There are many outstanding issues which might seem intractable, but Malawi believes they can be resolved without compromising the independence, impartiality and effectiveness of the Court. The challenge is to come up with a statute that will be universally accepted.

TUILOMA NERONI SLADE (Samoa): The moment is right for an International Criminal Court. Ad hoc measures are never sufficient, as has been learned from practical experience of the shortcomings of the ad hoc tribunals for the former Yugoslavia and Rwanda.

An International Court will contribute significantly to the maintenance of international peace and security. Those committing crimes against humanity and other serious crimes must be brought before the Court and be held accountable. With clear provisions relating to its powers and jurisdiction, such a Court will constitute an effective global deterrence. It is unacceptable that very serious crimes are being committed with impunity, and that those with criminal responsibility go without trial and punishment.

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There is a vital link between the effective protection of human rights and respect for the rule of law. For small States like Samoa, the ultimate protection lies in a system of international law which is fully respected and observed by all states. It is critical that all governments give to the Court their fullest cooperation. Equally, it is essential that there is a clear and coherent system of international criminal justice, with clarity and specificity in its provisions and backed by strong and effective measures of law enforcement.

Methods of warfare, like the use of nuclear weapons which cause unnecessary suffering or which are inherently indiscriminate, are of particular concern to Samoa. They should be covered in the statute of the Court. The recent and crucially important advisory opinion of the International Court of Justice in the case concerning the legality of the threat or use of nuclear weapons, which is relevant on the matter, should be taken into account in the detailed negotiations on this issue.

JASSIM BIN NASSER AL-THANI (Qatar): Qatar looks forward to a capable and an independent Court which would discharge its functions without superceding actions of national courts. It should be complementary to national courts.

Qatar believes the future Court should have jurisdiction over the core crimes of genocide, crimes against humanity and war crimes. It will support a Court which will ensure protection of human rights, peace and security.

SAYYID SAID HILAL AL-BUSAIDY, President of the Magistrate Court of Oman: Oman would like to see an effective Court prosecuting those responsible for ethnic cleansing, among other crimes against humanity. The establishment of an International Criminal Court is a 50-year dream but, over the years, the prevailing circumstances did not allow that dream to come true. Commitments to establish the Court come from greater determination worldwide to prosecute those responsible for the events in the former Yugoslavia and in the Rwanda genocide. The lessons derived from the ad hoc tribunals confirm the need to establish a permanent institution. Civil society, including non-governmental organizations, have played an important role in fostering the idea of a Court. It should be independent and contribute to the maintenance of international peace and security. It has to administrate justice to all without discrimination.

Oman favours the inclusion of crimes against United Nations personnel, as well as aggression, as defined by the United Nations General Assembly. The Court should play a complementary role to that of national law; it can only replace those laws when it is determined that such a system is unavailable. The prosecutor should not have the right to start investigations on his own.

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HORACIO SOARES (Cape Verde): Cape Verde supports the establishment of the Court and followed closely the work of its preparatory committee. It supports a Court with well defined jurisdiction and with authority to prosecute also crimes committed at the national level against human beings. Cape Verde supports a permanent Court based on the principle of complementarity, with jurisdiction over the core crimes of genocide, crimes against humanity and war crimes. It also supports the inclusion of the crime of aggression in the statute, as well as other crimes committed in internal armed conflicts.

CHEKOU ADAMOU (Niger): Niger favours an independent, effective and impartial International Criminal Court. It is necessary to find a consensus on the crimes under the Court's jurisdiction and on the relationship between it and the Security Council. Council members should in no way delay action by the Court. It cannot replace national jurisdiction, but should accept cases only if national jurisdiction fails to do so.

The prosecutor should be able to initiate an investigation on his own. Rules of procedure and evidence should be part of the draft statute. Impunity is not a matter for States and international bodies only, it is a matter for civil society as well, and it is encouraging to see so many non-governmental organizations heavily involved in the work of establishing the Court.

NGUYEN BA SON (Viet Nam): The International Court, when established, must be independent, fair, impartial and effective. It should not be influenced by political, financial or other factors. Its independence and impartiality will ensure not only its effectiveness in fulfilling its mandate, but also broad adherence to its statute. As the core of the statute, the principle of complementarity should be clearly stipulated in this instrument. The Court should not replace the national jurisdiction of a State.

The Court's jurisdiction should cover the core crimes of genocide, crimes against humanity and war crimes. Viet Nam also strongly supports the addition of the crime of aggression under the Court's jurisdiction. The acceptance and implementation of the Court's jurisdiction should be based on the consent of States. Any activity of the Court without prior consent of States will constitute an encroachment of State sovereignty, and thus affect the Court's universality and effectiveness. The Court can effectively and fully implement its mandate if States provide effective cooperation. The concept of equal geographical representation should be reflected in the Court's composition. Viet Nam support the inclusion of a provision on reservations in the statute.

ABDULLAHI IBRAHIM, Attorney-General and Minister of Justice of Nigeria: Nigeria is convinced that the establishment of an effective International Criminal Court complementary to national criminal justice systems would contribute towards the maintenance of international peace and security. The

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use or threat of use of nuclear weapons, the use of anti-personnel mines and other weapons of mass destruction should come under war crimes.

Similarly, crimes related to international terrorism in whatever form, money laundering, drug trafficking and those crimes against United Nations and associated personnel should come under the jurisdiction of the Court. Deliberate efforts should be made to balance the expectations of developing countries with those of the industrialized nations so that the institution that will emerge will protect equally both the large and small States.

Nigeria has reservations about the role of the Security Council in the Court. There should be a relationship between the United Nations as a body and the International Criminal Court, as in the case of the International Seabed Authority, where such relationship is governed by an agreement. In particular, Nigeria is opposed to any proposal to confer on the Security Council the exclusive right to determine when aggression is committed and its referral to the Court. The Court should not from its beginning be encumbered by avoidable political influences. The Security Council should not be allowed to extend its influence to the Court.

Similarly, Nigeria has strong reservations on the ex officio powers of the prosecutor in the draft statute. These powers given to an individual without any checks may subject the prosecutor to political manipulation and other influences which would not augur well for the independence of the International Criminal Court.

Nigeria favours an effective, independent and impartial Court that will be worthy of the name. Pressures to turn this historic project into another instrument to be used by some Powers to monitor and control the activities of small States should be resisted. Suitable mechanism should be put in place for the financing of the Court to preserve its independence.

RUBERWA MANYWA (Democratic Republic of the Congo): Despite the existence of texts with provisions to protect human rights and fundamental freedoms, it must be admitted that the world had never seen such acts of barbarity as those committed in Cambodia and Rwanda.

The Democratic Republic of the Congo is part of the Great Lakes region of Africa and has suffered the consequences of the Rwanda genocide. It has been invaded by refugees, including some of the perpetrators of the genocide, which led to many problems, including the destruction of plant and animal life, famine and disease. All these acts that the international community has been unable to deter remain unpunished. If an International Criminal Court already existed, the perpetrators of the genocide would not be free today.

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For these reasons, the establishment of an International Criminal Court is imperative. It must have equitable geographical representation in its composition and its prosecutor should be sufficiently independent.

STEPHEN LEWIS, Deputy Executive Director of the United Nations Children's Fund (UNICEF): The rights of children and women -- as victims, as witnesses and as manipulated and abused participants -- should be recognized and appropriately handled by this new legal mechanism. In UNICEF's view, children need to be protected against all forms of violence and any violation of their fundamental rights in times of peace and war. An important way to achieve this is to ensure that the Convention on the Rights of the Child, ratified by 191 countries, be considered as a guiding reference for the work of the International Criminal Court. It must be unequivocal in its jurisdiction over the areas with a particular relevance for children.

The recruitment of children under 18 into armed forces or groups, or their participation in hostilities, direct or indirect, should be considered a war crime under the jurisdiction of the International Criminal Court. The statute must acknowledge the special vulnerability to violence of children below 18 years of age, as reflected in the increasing number of cases of their inducement or coercion into prostitution or other forms of sexual exploitation.

There is an urgent need to ensure that where the children are victims, the International Criminal Court considers those acts as war crimes and apply even stronger sanctions against those who are responsible. The UNICEF also feels that the death penalty, life imprisonment or long periods of deprivation of liberty, must not be applicable to children below the age of 18 years of age. However, the statute should promote measures for rehabilitation and psycho-social recovery of child victims, whatever their age.

J. LINATI-BOSCH, of the Sovereign Military Order of Malta: The order of Malta is the oldest organization for assistance devoted to humanitarian assistance without distinction to race, religion or nationality. It works through several other organizations and has observer status at the United Nations. More than a million people help to make possible the work of the Order of Malta.

The organization cannot remain indifferent to the establishment of an International Criminal Court to punish international crimes, whether or not they are committed during armed conflict. The Court must be credible and trustworthy.

RAMESH LAWRENCE MAHARAJ of the Secretariat of the Caribbean Community (Caricom): There should be a strong, independent, impartial and effective International Criminal Court. It must be free from any political interference by the Security Council in the discharge of its judicial functions.

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The statute of the Court must strike a balance between the desire to achieve justice on an international plane, while fully respecting the fundamental principle of the sovereignty of States. The Court should be empowered to act only when a national court is unwilling or unable to exercise jurisdiction over an issue.

While seeking to see a strong and independent prosecutor, it is important that proper safeguards be put in place to prevent any abuse of power. The international drug trade and its attendant evils should be included among the crimes within the jurisdiction of the Court. In so doing, it will provide, especially for small and vulnerable States, a vital and powerful ally in the fight against this vicious enemy.

KENNETH ROTH, Executive Director of Human Rights Watch: Support for an independent, effective, impartial Court is broad, reaching across Africa, Latin America and the Caribbean, Europe and Asia. Will the United States accept the very strong guarantees likely to be enshrined in the statute against frivolous or unfounded prosecutions of United States citizens, including a complementarity regime that currently reflects United States preferences? Or will it insist on a 100 per cent, iron-clad guarantee that no United States citizen could ever be brought before the Court -- a guarantee which would destroy its universality. It is disappointing that, at this late date, the United States still has not announced its position on this key point.

If the United States and a handful of other States continue to insist on what amounts to immunity from prosecution, the commitment of like-minded States and the many others that support their position will be tested by an equally clear choice -- whether to stand by or compromise principles. Nations at the Conference should not capitulate to a minority of recalcitrant States, some of which will not ratify the statute in any event. They should reject any proposals that would seriously weaken the independence of the Court. They should remain true to their principles and create an effective Court with real deterrent impact. It would be wrong to accept a weak statute in the unrealistic hope that it will be improved in the future. Now is the time to build a Court to which victims will look in the century to come.

BARBARA BEDONT of the Women's International League for Peace and Freedom: The organization was formed in 1915 while the world was watching the horrible violence committed during the First World War. Since then it has been strongly committed to promoting world disarmament and the peaceful resolution of international conflicts.

The law codified in the statute of the International Criminal Court must be equitable and just for the Court to have credibility and to provide an effective deterrent against heinous crimes.

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The inclusion of certain weapons systems under the definition of war crimes is an issue which tests the commitment to creating an impartial judicial system. A provision in the statute has a list including chemical weapons but excludes weapons such as landmines and blinding laser weapons. More significantly, the list excludes nuclear weapons, the threat or use of which are generally prohibited under customary international law, as determined by the International Court of Justice. This would create an absurd result whereby, under the statute's provision, the Court would have jurisdiction if someone killed one civilian with a poisoned arrow or dum-dum bullet, but would not be able to act if the person incinerated a hundred thousand civilians with a nuclear weapon. Those options which only prohibit a selective list of weapons are unacceptable. The world community has a responsibility to future victims of yet to be invented weapons to provide a means to deter their use.

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For information media. Not an official record.