VIEWS ON INTERNATIONAL CRIMINAL COURT PUT FORWARD IN SIXTH COMMITTEE19951102 "We cannot create a situation which will allow individual States to make use of the inherent jurisdiction of the international criminal court to harass other States for political and propaganda purposes by filing spurious or baseless charges", the representative of Israel told the Sixth Committee (Legal) this morning.
As the Committee continued consideration of the report of the Ad Hoc Committee on the Establishment of an International Criminal Court, she said: "One way of mitigating this danger would be to insist that charges in areas where the court has inherent jurisdiction must be filed not by one country, but by a large and diverse group of countries, showing that the issue has, indeed, aroused the wrath of a significant portion of the world."
The representative of Chile said that under the draft statute, the proposed court could prosecute aggression only when the Security Council determined that an act of aggression had occurred. Chile was concerned that that would effectively limit the court to acting upon the declarations of a non-judicial political body operating without the benefit of due legal process.
Taking into account differences over the inclusion of aggression in the court's statute, the Russian Federation proposed the inclusion of a new category of crime -- the planning, preparation and conduct of a war of aggression. Security Council determination of an act of aggression would be a necessary prerequisite.
The representative of Finland said that the principle of complementarity should not be allowed to render the court irrelevant. The court should be resorted to when the court itself decided that a national jurisdiction was not available or ineffective.
Romania said a serious deficiency of international law had been the lack of enforcement mechanisms. Only a permanent court could effect the systematic, just and universal adjudication of international criminal law.
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Austria said that the court should have a "jurisdiction which does not depend on any additional acceptance" by States. "The ratification of the Convention on its establishment must suffice for that purpose", he said, adding that the acceptance of such understanding of inherent jurisdiction would certainly be facilitated by the restriction to certain core crimes.
Trinidad and Tobago, speaking on behalf of the member States of the Caribbean Economic Community (CARICOM) that were Members of the United Nations, said the Ad Hoc Committee had fulfilled its mandate. The time had come to prepare for a conference of plenipotentiaries. The representative of Ghana said that further "theoretical and doctrinal discussions" would be unwarranted and sterile.
Also speaking this morning were the representatives of Mexico, Yemen, Libya, Norway, Egypt, Republic of Korea, Luxembourg and the Observer of Switzerland.
The Sixth Committee will meet again at 3 p.m. this afternoon to continue its consideration of the report of the Ad Hoc Committee on the Establishment of an International Criminal Court.
Committee Work Programme
The Sixth Committee (Legal) met this morning to continue consideration of the report of the Ad Hoc Committee on the Establishment of an International Criminal Court (document A/50/22). The Committee was established in December 1994 to review issues arising from the draft statute for an international criminal court prepared by the International Law Commission.
The draft statute envisaged the court as an independent permanent judicial organ, to be established by a multilateral treaty. During discussions in the Committee, it was emphasized that the court should have general acceptability and have jurisdiction over a few "hard-core" crimes, including aggression, war crimes, crimes against humanity and treaty-based crimes.
For background information, see Press Release GA/L/2876 of 30 October.
DELIA CHATOOR (Trinidad and Tobago) speaking on behalf of the members of the Caribbean Community (CARICOM), said many complex issues must be resolved before an acceptable draft statute could be submitted to a diplomatic conference. In 1989, CARICOM members had submitted a new agenda item intended to identify and characterize certain international crimes and to attach responsibility to individuals and entities committing such acts.
It had been proposed that the jurisdiction to try and punish such offenders would repose in an international criminal court, she said. Illicit trafficking of drugs had also been singled out, because it endangered the constitutional order of States and violated basic human rights. The court's jurisdiction would also extend to other acts warranting international response.
The draft statute prepared by the International Law Commission formed a good basis on which to focus ongoing discussions, she continued. The court would complement existing national jurisdictions and procedures for international cooperation in criminal matters. In her opinion, the Ad Hoc Committee had fulfilled its mandate and the time had come to enter into a new phase of negotiations to prepare the text of a convention to be adopted by a conference of plenipotentiaries.
DIMITRU MAZILU (Romania) said a serious deficiency of international law was that it lacked an effective enforcement mechanism. The ad hoc approach employed by the Security Council was not a satisfactory long-term solution to the problem of enforcing international law. The administration of
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international criminal law would only become systematic, just and universal when it was administered by a permanent international court.
Speaking about the principle of complementarity, he said that the draft statute of the court should stipulate in a precise manner that the international criminal court "complements national criminal justice and does not preclude existing jurisdiction of national courts". It was also necessary to clarify the implications of that principle on the substantive provisions of the draft statute in important areas of international judicial cooperation, involving surrender, transfer, detention, incarceration, recognition of decisions and applicable law.
Regarding the applicable law and the jurisdiction of the court, he said that the statute should satisfy the requirements of precision and certainty in criminal proceedings. Limiting the jurisdiction of the court would facilitate the adoption of a coherent and unified approach. The jurisdiction should cover the crimes of genocide, serious violations of the rules of war and crimes against humanity. As for the crime of aggression, it would be difficult to determine if individuals should bear criminal responsibility for it.
The court could not conduct an effective prosecution without the cooperation of the territorial State. Nor could it be conducted unless the alleged offender was surrendered to the court by the custodial State. It was necessary to clarify how much of the power to determine who should prosecute a crime the custodial State should cede to the international criminal court. The statute should also provide for recognition and enforcement of orders and judgements of the court through cooperation with national authorities. In any specific case, provisions should be made for some form of communication channel between the international criminal court and the prisoner.
GERHARD HAFNER (Austria) said the Ad Hoc Committee elucidated the relevant positions of the States. In establishing the jurisdiction of the court, first consideration should be given to the core crimes, such as genocide, aggression, war crimes and crimes against humanity. If difficulties in connection with the definition of the crime of aggression proved to be insurmountable, it could be discussed whether the court could start without the crime of aggression falling under its jurisdiction.
As to the treaty crimes, he was not convinced it was necessary to include them within the jurisdiction of the court, at least in its initial stage. There was certain merit in including the United Nations Convention on the Safety of the United Nations and Associated Personnel, since the application of that Convention was of particular international concern.
The international criminal court "must be furnished with a jurisdiction which does not depend on any additional acceptance", he continued. "The
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ratification of the convention on its establishment must suffice for that purpose. The acceptance of such understanding of inherent jurisdiction would certainly be facilitated by the restriction to certain core crimes."
The relation between the jurisdiction of the future court and that of national courts should be solved by reference to the principle of complementarity, he said. With that principle closely connected to the question of cooperation between States and the international criminal court, the statute should embody a clear obligation for cooperation imposed upon States, whereas the methods and procedure of cooperation should follow the lines of judicial assistance.
He saw, however, no need to incorporate a detailed regulation of judicial assistance in the statute and joined those who denied the applicability of the regime of extradition to the surrender of a suspect to the court. In particular, the right of a State to decline the surrender of a suspect should be kept to a minimum. The powers of the presidency of the court seemed to be overstretched, whereas the competence of the prosecutor could still be extended. Also, in the light of the increased weight of the Security Council, it was not only natural, but necessary that it be involved in the international criminal court.
GEORGE O. LAMPTEY (Ghana) said that the time was at hand to establish an international criminal court. Further theoretical and doctrinal discussions in the framework of the Ad Hoc Committee would be unwarranted and sterile. Ghana would not support the extension of its mandate.
A preparatory committee should be established to prepare draft provisions for an international criminal court. It should not be another debating forum. Only when envoys fortified with full powers attended a conference of plenipotentiaries could hard bargaining culminating in an international treaty begin. "Anything else is just a game of cards", he said. The preparatory committee should meet during the course of 1996 to prepare a 1997 conference.
The proposed international criminal court should be linked to the United Nations, but must not be subject to any organ of the Organization. It must be totally independent in its functions. The court should not be conceived as a supervisory body in criminal jurisdiction. It should complement, not supplant, national jurisdictions. It must be able to step in where national criminal jurisdictions were non-existent or ineffective.
The jurisdiction of the criminal court should be limited to the most universally accepted crimes, until such time as the draft code of crimes against the peace and security of mankind was completed. As to aggression, he said that while the 1974 General Assembly resolution defining aggression had
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related to State responsibility in a political context, there could be elements in the perpetration of aggression that might well attract individual criminal responsibility. Careful consideration should be given to how such an eventuality might occur and to the consequences of the criminal court's jurisdiction.
MARJA LEHTO (Finland) said that the Committee should proceed from a general exchange of views to the establishment of a preparatory committee to organize a diplomatic conference for the adoption of a convention on an international criminal court. Preparatory meetings should be of short duration, concentrating on specific issues.
A balanced approach was called for regarding principle of complementarity, he said. Safeguards for upholding the primacy of national jurisdictions should not render the court irrelevant. The court should be resorted to when it decided that a national jurisdiction was not available or ineffective. The jurisdiction of the court should be limited to the most serious core crimes under international law. That should not preclude the expansion of the list of crimes at some date in the future, he added. All crimes within the court's jurisdiction should be clearly and comprehensively defined.
The rights of accused persons should be protected by maintaining the high standards of due process, he said. The obligations of States should be clearly determined to the effect that there should be, as a general rule, close cooperation between the court and national authorities.
CARLOS CRISOSTOMO (Chile) said that the international criminal court should be established by means of an international treaty, not by a resolution of the Security Council or of the General Assembly. It should be very closely linked to the United Nations.
As to the principle of complementarity, he said that the proposed court should exercise its jurisdiction only over cases in which national criminal jurisdictions were non-existent or ineffective. There should be a presumption in favour of national jurisdictions. The court should have jurisdiction only over the most serious international crimes, he said. Crimes to be adjudicated by the court should be clearly and precisely articulated in its statute.
The crime of aggression had not been clearly defined, nor had crimes against humanity. It was hoped that those crimes could be precisely defined in the draft code of crimes against the peace and security of mankind, currently being discussed by the International Law Commission. Under the draft statute, the court could only initiate prosecution of aggression if the Security Council had previously decided that aggression had occurred. That would have the effect of reducing the competence of the court to determining
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who was responsible for crimes, with the Council deciding whether the crime had in fact been committed. Once the Council decided that aggression had occurred, the court could not decide otherwise or decide that the State identified as the perpetrator of aggression had in fact been its victim. That would limit the court to acting upon declarations made by a non-judicial political body without the benefit of due legal process. It was not appropriate that the court be prohibited from hearing testimony on a crime while the Council was considering the matter.
The statute should clearly demarcate "ceded jurisdiction" over serious international crimes and "inherent jurisdiction" over the crime of aggression. The international criminal court should prosecute genocide unless a national court agreed to do so.
The international court should also have an advisory jurisdiction to assist national jurisdictions with the prosecution of treaty-based crimes. That advisory jurisdiction should come into play when States party to the court requested it. The advisory opinion should be non-binding in nature.
HEMDA GOLAN (Israel) said one of the more serious problems had to do with the concept of inherent jurisdiction, even when it was limited to the specific crime of genocide. That was a ground-breaking idea in international judicial procedure which must be studied carefully before a precedent of major proportions was established.
"In particular, we cannot create a situation which will allow individual States to make use of the inherent jurisdiction of the court to harass other States for political and propaganda purposes by filing spurious or baseless charges", she said. "One way of mitigating this danger would be to insist that charges in areas where the court has inherent jurisdiction must be filed not by one country, but by a large and diverse group of countries, showing that the issue has, indeed, aroused the wrath of a significant portion of the world."
The suggested role of the prosecutor remained very problematic and no satisfactory solution had yet been suggested for the matter of the consent of the State of nationality, she continued. There might be several reasons why a State might not wish to have one of its citizens indicted by an international criminal court, and the court should safeguard that the complaint was in fact valid by ensuring that it did not come from a single source.
While sharing the view that the jurisdiction of the court should be confined to the most serious crimes, she did not favour the inclusion of the crime of aggression in that list, as it was a crime mostly performed by a State against another State, not easily definable as a crime of an individual. She attached great importance to the principle of complementarity and said
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that the draft statute was silent on the question as to which court had priority jurisdiction -- a domestic court or an international one.
Apprehension and surrender should proceed according to the traditional regime of extradition, she said. The right to refuse to surrender a person on the ground that he was accused of a political offence or because of his nationality should be preserved. It would also be necessary to provide that the request might be refused if the execution was likely to prejudice the sovereignty, security or other essential interests of the requested country. In addition, a clear definition of the crimes subject to the jurisdiction of the court was necessary for its appropriate functioning.
SOCORRO FLORES (Mexico) said it was necessary to guarantee that the court worked in an independent and impartial way. The administration of justice within national borders was essential for any domestic court. Respect for national jurisdiction was necessary for an international court and the principle of complementarity should be guaranteed.
The statute of the court must guarantee the independent functioning of that body and guard against any injunctions foreign to its nature, she said. Only the most serious international crimes must be included within the scope of the statute of the court. A series of important aspects still needed to be addressed in the near future, and common understanding on essential issues was necessary before proceeding towards an international conference. The broadest possible involvement of countries and experts should be guaranteed.
ROMAN KOLODKIN (Russian Federation) said the establishment of the court would mean giving the international law a qualitatively new dimension where the responsibility for its violation would be borne not only by the State, but by the individual himself.
Some differences remained in respect of the list and the qualification of crimes, he continued. The competence of the court should cover genocide, crimes against humanity, war crimes and aggression. Taking into account the differences on the inclusion of aggression into the statute, the Russian Federation had proposed the inclusion of a crime consisting in the planning, preparation and conduct of a war of aggression. The powers of the Security Council on determining aggression should be a necessary prerequisite for the realization of the jurisdiction of the court.
Some of the so-called "treaty crimes" were covered by crimes under common international law, while others could be covered within the framework of national jurisdiction, he said. Nevertheless, international terrorism should be a subject of proceedings in the international criminal court. The competence of the court should be extended only to those terrorist crimes
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which presented a threat to international peace and were transferred to the court by the Security Council.
If the competence of the court comprised only "hard-core crimes", then the issue of possible inherent jurisdiction of the court over crimes other than genocide deserved the most careful study, he said. The criminal court was not being created in a void. There was no divergence of principle between the ad hoc tribunals and a permanent court, which should function on the basis of international standards of criminal procedure.
ABDULLA AL-SHAMMAM (Yemen) said that a widely accepted international criminal court would ensure the prosecution of those committing widely condemned international crimes. The proposed court should adjudicate crimes articulated by the draft code of crimes against the peace and security of mankind. Court officials should be full-time employees; the judges should be appointed with due regard for the principle of equitable geographic distribution.
The proposed court should closely coordinate its work with that of the Security Council. The Council, in exercising its mandate, should not derogate from the court nor politicize its proceedings. The court should apply the loftiest criteria of impartiality and due legal process. The human rights of all accused persons should be respected.
The court should be funded by the regular budget of the United Nations, he said. That would provide it with independence and a truly international character.
MOHAMED MATRI (Libya) said that the international community should set up a criminal jurisdiction to prosecute crimes which could not be adjudicated by national courts. It should focus on those crimes most recognized by the international community -- war crimes and crimes against humanity. Libya believed that the proposed court must be established upon independent, objective, judicial criteria free from political considerations. The court must be empowered to prosecute the crime of aggression. The difficulty of defining that crime should not be allowed to stand in the way of the court.
The Security Council was a political body; the proposed court a judicial entity. The competence of those two bodies should not be co-mingled. A number of Security Council resolutions had been adopted in such a way as to advance the political objectives of certain members. The court must be guaranteed independence. Prosecutors and judges should be appointed from all geographic regions.
HANS JACOB BJORN LIAN (Norway) said that his Government fully supported the early establishment of an international criminal court. The establishment
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of an international court was a matter of peace-building, security the rule of law. The establishment of ad-hoc tribunals in the former Yugoslavia and in Rwanda had demonstrated the need for a permanent global mechanism to tackle serious international crimes.
The proposed court should not absolve States of their responsibility to prosecute violations of humanitarian law, he said. The role of the Court should be limited to those cases where national jurisdiction was unavailable or ineffective. It was essential that the court have the competence to make such determinations when disputes arose.
The proposed court should focus on a limited list of the most serious breaches of universally recognized principles of international law -- genocide, war crimes and crimes against humanity. As to aggression, Norway had not been persuaded that such a crime might be dealt with in an unpoliticized manner. The proposal that the court be open to deciding on a broader list of crimes in future might prove to be the vehicle for consensus on that issue. The court should have inherent jurisdiction; State consent should not be required in addition to the general consent given by becoming a party to the statute of the court.
Future work on the establishment of the court should concentrate on results-oriented text negotiations rather than on political debates. The future work of the Ad Hoc Committee should focus on drafting an international convention for consideration by a conference of plenipotentiaries.
NABIL ELARABY (Egypt) said the establishment of an international criminal court would serve as a deterrent against crimes. Such a court would also enhance the effectiveness of national justice systems in combating international crimes like terrorism, narco-trafficking, illicit traffic in women and children and torture. The court should provide an effective and fair system of international investigation, prosecution and adjudication of certain international crimes and complement national justice systems.
The jurisdiction of the international criminal court should be limited initially to the four major crimes of aggression, genocide, crimes against humanity and serious war crimes. The triggering mechanism for each of those crimes could be different. The Security Council should be able to refer some issues to the court. The statute must also include rules of procedure and evidence that conformed to international due process of law.
The Ad Hoc Committee would have made more progress if it had had a clearer mandate from the General Assembly, he said. The preparatory committee should be clearly mandated to begin drafting a consolidated text based on the draft statute. To ensure the universality of the court, participation of as many countries as possible was needed, particularly developing countries.
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CHUNG IL CHEE (Republic of Korea) said the international criminal court should function where a national court was not available or proved to be ineffective in dealing with international crimes specified under the statute. A jurisdictional boundary between national and international criminal courts should be drawn as clearly as possible to avoid unnecessary overlap. The international criminal court should play a primary role in dealing with core crimes.
The jurisdiction of the court should cover the most serious crimes of concern to the international community, he said, including genocide, aggression and crimes against humanity. He was not in favour of including treaty-based crimes in the statute, because they had already been dealt with under those treaties. With the exception of the crime of genocide, the court should not have inherent jurisdiction over crimes.
VALENTIN ZELLWEGER, Observer of Switzerland, said that the establishment of an international criminal jurisdiction was a matter of priority for his Government. Certain crimes, particularly those committed in wartime, demanded a permanent international court. It was no longer possible to establish ad- hoc tribunals on a case-by-case basis.
The draft statute had been well examined by the Ad Hoc Committee. The time had now come for a preparatory committee to develop a draft treaty for consideration by a conference of plenipotentiaries. Switzerland agreed with most recommendations of the Ad Hoc Committee, but wished that it had established a timetable for the preparatory committee to complete its work by the end of 1996.
Any agreement on establishing a court would require compromise on the issues of complementarity, the list of crimes and on court jurisdiction. Some saw complementarity as a device providing for subsidiarity of the international court to national courts. But the international court should be able to take action when national bodies acted improperly or had failed to act when they should have. The competence of the court should be limited to genocide, war crimes and crimes against humanity. Treaty-based crimes should be eliminated. Aggression was primarily a crime of State, rather than of individuals.
It was essential that the international court have inherent jurisdiction over the core list of crimes. That way, applicable law, procedure and judicial assistance could be worked out at a later date. The establishment of a permanent international court might face political obstacles, but its technical obstacles could be resolved without interminable negotiations. Preparatory work for a treaty creating an international court should be undertaken parallel to the work of the International Law Commission on a draft code of crimes against the peace and security of mankind.
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JEAN LOUIS WOLZFELD (Luxembourg) said that tragic international events had demonstrated that the international community could not effectively respond to massive human rights violations. The ad hoc tribunals for the former Yugoslavia and for Rwanda were at best a stop-gap mechanism. A universal and permanent international jurisdiction, firmly linked to the United Nations, could undertake the prosecution of individuals whose actions were an outrage to the international conscience.
The jurisdiction of the international court should be limited to the most serious war crimes and crimes against humanity. It must be incumbent upon States to cooperate with the court's investigations and to hand over those being brought to justice. The statute should be open to periodic review with regard to the scope and jurisdiction of the court.
The time had come to speed up the process. An open preparatory committee should be created for a conference of plenipotentiaries. The international community must not let the present opportunity slip away.
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