INTERNATIONAL CRIMINAL COURT SHOULD BE INDEPENDENT BODY, AND NOT SUBSIDIARY OF SECURITY COUNCIL, SPEAKERS TELL LEGAL COMMITTEE19971021 Committee Establishes Working Group to Discuss Draft Text on Question of Security Council Sanctions Affecting Third States
The proposed international criminal court should be an independent body and not subordinate to or a subsidiary of the Security Council, the representative of Trinidad and Tobago said this afternoon as the Sixth Committee (Legal) began its consideration of the item on the "Establishment of an international criminal court".
Speaking on behalf of the Caribbean Community (CARICOM), she said there should be no provision which would prevent the court from initiating a prosecution on a subject being dealt with by the Council. "The court must at all times be independent and free from political interference", she said.
The representative of India said his delegation did not favour the Security Council being given competence to either take up matters before the court or bar States from taking to the court matters relating to the maintenance of international peace and security. Any such pre-eminence of the Council over the court would subordinate its judicial independence and reduce its status.
On the question of what would constitute an act of aggression, which would be under the court's jurisdiction, the representative of Greece said there could be a possibility of the Security Council determining if an act of aggression had been committed. However, that should in no way affect the independence of the court in its determination of the criminal responsibility of a particular individual.
China's representative said his country would give full consideration to any proposal that would ensure the independence of the court on the one hand, and reasonably reflect the special role of the Security Council in the maintenance of international peace and security, on the other.
Addressing the work of establishing the court, the representative of the Netherlands (on behalf of the European Union and associated States) said it should be effective and able to stand the test of time. The court should draw on the experience of the two ad hoc International Tribunals for the former
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Yugoslavia and for Rwanda. The Union hoped that continuation of the discussions on such difficult issues as the crime of aggression and the role of the pre-trial chamber would make it possible for a consensus to be reached.
Statements were also made by representatives of the Italy, South Africa (on behalf of the Southern African Development Community (SADC)), Paraguay (on behalf of the Rio Group), Portugal, Republic of Korea, Ireland, Cote d'Ivoire, Sudan, United Republic of Tanzania, Lesotho, Malaysia, Swaziland, Singapore and Slovakia.
In other matters this afternoon, the Committee decided to establish a working group under the chairmanship of Craig Daniell (South Africa) to discuss a draft resolution on the question of implementation of United Nations Charter provisions relating to third States affected by Security Council sanctions.
The Committee will meet again at 10 a.m. on Thursday, 23 October, to continue consideration of the establishment of an international criminal court.
Committee Work Programme
The Sixth Committee (Legal) met this afternoon to begin consideration of the item on the "Establishment of an international criminal court".
Available as reference for the discussion are two documents of the Preparatory Committee on the Establishment of an International Criminal Court, as follows: decisions taken by the Committee at its 1997 sessions, held from 11 to 21 February (document A/AC.249/1997/L.5) and from 4 to 15 August (document A/AC.249/1997/L.8/Rev.1). The Preparatory Committee is developing a draft statute on the establishment of an international criminal court.
The 60-article draft statute, in its original format, details the establishment of the Court; its relationship to the United Nations; composition and administration; jurisdiction and applicable law; investigation and advancement of prosecution; trial; appeal and review; international cooperation and judicial assistance; and enforcement.
At its August session, the Committee took note of the reports containing draft texts and proposals, of its working groups on complementarity and trigger mechanism, and on procedural matters.
The Preparatory Committee also took note of the establishment of a trust fund for the participation of the least developed countries in its work and in the diplomatic conference of plenipotentiaries scheduled to be held in Rome next year. Guidelines have been established for the administration of the fund to which contributions have been made by Belgium, Canada, Denmark, Finland, Netherlands, Norway and Sweden. Twelve States utilized the fund to participate in the August session of the Preparatory Committee. As of 14 August, a total of $300,000 had been received by the fund.
At its February session, the Committee took note of the reports of its working groups on the definition of crimes, and on general principles of criminal law and penalties.
The United Nations first considered the idea of a permanent international court to prosecute genocide, crimes against humanity, war crimes and aggression in the context of the adoption of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. In 1992, the General Assembly, by its resolution 47/33, directed the International Law Commission to elaborate a draft statute for an international criminal court.
Two years later, the General Assembly, by resolution 49/53, established an Ad Hoc committee to review the major substantive and administrative issues arising from the International Law Commission's draft statute for the court.
By its resolution 50/46, the Assembly established the Preparatory Committee and charged it with the task of drafting a text of a convention for
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an international criminal court for consideration by a conference of plenipotentiaries. The Assembly, at its fifty-first session, reaffirmed the mandate of the Preparatory Committee and urged it to complete the drafting of a widely acceptable consolidated text of the convention to be submitted to the diplomatic conference, which, it said, should be held in 1998.
HARRY VERWEIJ (Netherlands), speaking on behalf of the European Union and Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, Slovenia, Cyprus and Iceland, said an international criminal court should be effective and able to stand the test of time. The court should draw on the experience of the two ad hoc International Tribunals for the former Yugoslavia and for Rwanda.
The European Union welcomed the General Assembly's decision to convene a diplomatic conference in 1998 to finalize and adopt a convention on the establishment of the court, he said. Progress made by the Preparatory Committee justified that decision. The Union hoped that continuation of the discussions on such difficult issues as the crime of aggression and the role of the pre-trial chamber would make it possible for a consensus to be reached. The Union was confident that the result of the negotiations of the Preparatory Committee would lead to the finalization of a widely acceptable, consolidated text of the convention. It reaffirmed its support for the decision to hold the diplomatic conference in Rome in June/July 1998.
The year 1998 was of symbolic value to the establishment of the international criminal court, he said, noting that it marked the fiftieth anniversary of both the adoption of the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. The European Union encouraged States to contribute to the trust fund established to enable least developed countries to participate in the work of the Preparatory Committee and also attend the Rome diplomatic conference.
For the conference to be successful, its rules of procedure should be considered during the session of the Preparatory Committee in March/April 1998, so that a complete set of rules might be recommended to the conference for adoption, he said. The Secretariat should provide guidance in the preparation of the draft rules. He urged the continued participation of relevant non-governmental organizations in the process of establishing the court, noting that many of them had contributed significantly and positively to its work.
MAURO POLITI (Italy) said a number of issues still remained unresolved on the establishment of an international criminal court, including the ongoing negotiating process within the Preparatory Committee; the steps undertaken in preparation of the Rome conference; and the decisions to be made by the General Assembly. Resolving those issues required a further intense
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negotiating effort, based on the same spirit of cooperation that had prevailed during previous preparatory meetings.
He added that it was crucial that the largest possible number of States participated in the Rome conference. That was indispensable in order to respond adequately to the demands that the creation of the court intended to meet. The objective was to establish an independent and effective judicial institution which enjoyed universal support with the international community. The General Assembly must duly take into account that fundamental element.
KHIPHUSIZI J. JELE (South Africa), speaking for the Southern African Development Community (SADC), said SADC members had recently held consultative meetings during which a common position had been reached on some articles of the draft statute. Countries of the SADC supported the early establishment of the international criminal court. The future court should be independent and impartial and should complement national criminal justice systems. It should be unfettered by the veto of the Security Council. It must enjoy maximum cooperation from all States, including non-States parties. The court should have inherent jurisdiction over the crime of genocide, crimes against humanity, and violations of the laws of armed conflict.
A goal in establishing the court should be to ensure universal adherence by all Member States to its statute, he continued. It was thus imperative that wide participation be encouraged in the forthcoming diplomatic conference to be held in Rome. He welcomed the establishment of a trust fund to support the participation of developing countries in the preparations and the holding of the conference. He called upon all States to contribute to the fund.
BERNARDINO HUGO SAGUIER CABALLERO (Paraguay), speaking on behalf of the Rio Group, said the establishment of a permanent international criminal court raised a number of considerable politically sensitive and legally complex problems and questions. The court should be impartial and independent, and complementary to national judicial systems, but not subordinate to them nor to any national or international political organ. The court's success would, to a great extent, depend on its relationship with States and with the United Nations. There should be cooperation that would strengthen its functions without influencing its competence.
He said the court would have to be endowed with adequate organizational and procedural norms to ensure due process of law and respect for the rights of the accused, as well as protection of victims and witnesses in accordance with the principles and norms of internationally recognized human rights. The death penalty should not be among the penalties foreseen in the court's statute. As regards procedural matters, the negotiators should not overlook the need for a balance between the inclusion of essential substantive and procedural norms in the statute and the avoidance of excessive details. Likewise, they should also rule out the possibility of impunity for serious crimes that the court would have jurisdiction over.
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The Rio Group was confident that the Rome conference would lead to the establishment of an independent, impartial, efficient and universal criminal court, he said, adding that the Group's member States intended to work towards the achievement of that objective.
PAULA ESCARAMEIA (Portugal) said there have been major tensions throughout the considerations of the establishment of an international criminal court, including the tension between universality of membership and effective powers of the court; and the tension between the exclusivity of the role of States before the court versus the involvement of other entities, such as the Security Council.
On the universality of the court, she said that while it was important to have the largest number of States approve of the court, there was still a need to maintain a court with effective power which could not be watered down to the point that nothing remained besides a mere appearance of a judicial institution. On the role of other entities, the court should, while preserving its complete independence from any external interference, be open to all input that might facilitate the prosecution and conviction of individuals who committed the international crimes under its jurisdiction. The prosecutor should have the power to trigger an investigation on the basis of a complaint presented by any source, including the Security Council.
PARK SOO GIL (Republic of Korea) said that a simpler statute of the court, containing basic elements for procedure and fundamental principles of criminal law, was desirable and realistic. The court would be better poised to elaborate the details of those technical rules. Efforts could thus be channelled into the discussion of other more important issues crucial to the early adoption of the court's statute. He welcomed the broad agreement reached on the definitions of genocide and crimes against humanity. His delegation believed that the crime of aggression should be included as a punishable offence under the court's statute.
The Security Council should have minimum influence over the court, he said. His delegation looked forward to progress in the negotiations on issues such as penalties, definition of war crimes, general principles of criminal law and procedural matters. The fear that the establishment of the court would somehow diminish State sovereignty over criminal matters was not well- founded, given the statute's numerous built-in mechanisms for the protection of such sovereignty. Furthermore, in an increasingly interdependent world, the presence of the court would actually serve as a deterrent to infringement on State sovereignty, he added.
BRIDIN O'DONAGHUE (Ireland) said one of the most important issues that needed to be addressed in establishing an international criminal court was how the court would complement the systems of justice in respective States. The court should have the power to decide when a national system had failed, was unable to take adequate measures, or to prosecute a crime. In further
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consideration of that issue, care must be taken not to impose an impossible burden on the court in deciding whether a matter had been dealt with adequately at the national level. To do so would risk allowing individuals who should be subjected to the court's jurisdiction to be protected by sympathetic national systems.
Another fundamental issue, she said, concerns the question of which crimes should come within the jurisdiction of the court. It should have jurisdiction over exceptionally serious crimes such as genocide, war crimes, crimes against humanity and the crime of aggression. It should not be debated whether those crimes should be under the court's jurisdiction. However, for those cases where States could not agree whether a crime should be under the court's jurisdiction -- such as illicit drug trafficking or crimes against United Nations personnel -- there could be a mechanism to allow the international community to review and add to the list of crimes which would fall within the court's jurisdiction.
GAILE A. RAMOUTAR (Trinidad and Tobago) said that the jurisdiction of the international criminal court should extend to the illicit traffic in narcotic drugs, terrorist crimes and attacks on United Nations personnel, as well as to genocide, crimes against humanity and acts of aggression. While the Security Council had the responsibility under the Charter of the United Nations to determine whether an act of aggression had been committed, that must in no way undermine the role of the court as a judicial body.
On the role of the Security Council and its relationship to the court, she said the Council should refer situations or matters to the court. However, there should not be a provision preventing the court from beginning a prosecution arising out of a situation being dealt with by the Council unless the Council permits otherwise. The court should not be a subsidiary body, nor should it be subordinate to the Council. It should be independent at all times and free from political interference.
ABENI KOFFI (Cote d'Ivoire) said his delegation strongly supported the establishment of the court through a multilateral convention and welcomed the offer of the Government of Italy to be the host of the diplomatic conference to adopt the convention. His delegation trusted that many countries would be represented at the conference, to ensure the universality of the convention. It supported the jurisdiction of the court in cases of genocide, crime against humanity, war crimes and the crime of aggression. The principle of complementarity was important and should be recognized. The proposed court would have to determine the facts of a case and whether proceedings could be started.
The relationship between the court and the United Nations should not diminish the court's independence and impartiality, he said, and added that the diplomatic conference would have to define that relationship. Côte d'Ivoire truly hoped that the court would be established and all should work together towards that desired goal.
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P.J. KURIEN (India) said the international criminal court should be based on certain fundamental principles reflective of the present state of international law and the reality of international society. Those principles should be clearly provided for in the court's statute. The court should be so designed as to attract wide support and acceptance of the overwhelming membership of the United Nations. He listed a number of core principles on which the court should be based and which would contribute to achieving the objective of universality. The court should have jurisdiction only in the most serious crimes of common international concern. Its jurisdiction should only be supplementary or complementary to the primary national jurisdiction of States in criminal justice, and the court should be optional in nature, based on the widely accepted principle of the consent of States.
Affected States, the State of nationality of the accused and the State where the accused was found should normally have the locus standi to initiate international criminal court jurisdiction, he said. All States should extend the necessary judicial cooperation and legal assistance, especially in investigation, prosecution or extradition of the offender. His delegation did not favour the Security Council being given competence to either take up matters before the international criminal court or bar States from taking to the court matters relating to the maintenance of international peace and security. Any such pre-eminence of the Council over the court would subordinate its judicial independence and reduce its status. Also, his delegation did not favour the establishment of ad hoc tribunals by the Security Council, either temporary or on a permanent basis. The Preparatory Committee should focus on the substantial and procedural issues related to the international criminal court.
ELFATIH MOHAMED AHMED ERWA (Sudan) said the statute of the court must be inspired by the principles of impartiality and full independence. A prosecution chamber and the prosecutor should not be empowered to conduct investigations ex officio. In that way, there would be no risk of politicizing the office of the prosecutor. The judicial body of the future court ought not be subject to the jurisdiction of the Security Council, which was a political body.
The draft statute states that the jurisdiction of the court would complement the jurisdiction of national courts, he said. The idea of "complementarity" did not only confirm an established principle of international relations but also secured the positive cooperation of Member States. The statute also acknowledged the prominent role of national courts in suppressing and punishing crimes under the jurisdiction of the court and those that represented threats to peace and security. The role of the court would be to exercise its jurisdiction when the concerned State was no longer existing or when its judicial system became ineffective.
PHANI DASCALALOPOULOU-LIVADA (Greece) said the prosecutor of the international criminal court should have the power to activate the trigger
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mechanism -- the initiation of court proceedings. Without that responsibility, the court would remain an incomplete and ineffectual construction, and it would be subject to the unpredictability of political considerations. The precedent of the ad hoc International Tribunals on the former Yugoslavia and Rwanda, which entrusted a substantive role to the prosecutor, should not be departed from.
On the question of what would constitute an act of aggression under the court's jurisdiction, she said there could be a possibility of the Security Council determining if an act of aggression had been committed. That should in no way affect the independence of the court in determining criminal responsibility of a particular individual. However, in the case where the Security Council did not take any action within a prescribed time period concerning the question of aggression, the court would exercise its jurisdiction. It was imperative that a time limit be put on the Security Council to act -- otherwise the court's jurisdiction would be deprived of any meaning in the most important cases.
MUSINGA T. BANDORA (United Republic of Tanzania) said it would not be practical for the Preparatory Committee or those attending the diplomatic conference to define all crimes. Nor would it be practical to include a code of general principles of criminal law procedure and evidence in the future court's statute. His Government supported the drafting of statute which named the crimes falling within the jurisdiction of the court and which included only the basic rules of procedure, evidence and substantive law.
Noting efforts to exclude the crime of aggression from the jurisdiction of the court, he said that such an exclusion from the core crimes under the court's jurisdiction would be a dramatic retreat from the principles laid down by the Nuremberg Tribunal. Definitional difficulties which had been raised could surely be resolved.
The court should be allowed to exercise direct jurisdiction over the core crimes, thus ensuring that the powers of the court would not be circumscribed by those of the Security Council, he said. The court must be endowed with inherent jurisdiction over all the core crimes. While primary jurisdiction must rest with national courts, the international court must be allowed to assume jurisdiction where a concerned State is unwilling or genuinely unable to carry out investigations or prosecution. The court should make determinations on the unwillingness or inability of a State's criminal justice system to investigate or prosecute. In that way, the court would be independent and efficient and not hamstrung by the political prerogatives of States parties.
PHAKISO MOCHOCHOKO (Lesotho) said his delegation associated itself with the statement made by the representative of South Africa on behalf of the Member States of SADC. The creation of the court could transform the United Nations into a third generation international organization capable of meeting
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the new imperatives of human security. Southern African countries would continue to pursue the goal of establishing the court and urged other regional and subregional bodies to seek common ground in advancing the process leading to the Rome diplomatic conference.
He said Lesotho had benefited from the trust fund established to help least developed countries participate in the work of the Preparatory Committee and in the 1998 Rome diplomatic conference and was grateful to the countries that had contributed to the fund. He also appealed for more generous assistance to enable them to participate fully in the negotiating process. He urged support for the role of the non-governmental organizations in that process.
NOH OMAR (Malaysia) said the crime of genocide, breaches of the Geneva Conventions and crimes against humanity should be included as core crimes under the jurisdiction of the international criminal court under certain conditions. War crimes which fell under the court's jurisdiction should be confined to the most serious violations of the laws of armed conflict, and crimes against humanity must be precisely defined. The definition of crimes against humanity must exclude imprisonment; torture; institutionalized discrimination on racial, ethnic or religious grounds; and forced disappearance. Treaty crimes, such as the crimes of terrorism and illicit trafficking in narcotics, need not be included within the purview of the court. Such crimes could more effectively be tried within national criminal justice systems.
The international court should complement, not replace, the national courts, he continued. States would have the primary duty to investigate, prosecute and punish perpetrators of international crimes, for States' national criminal justice systems could better investigate, prosecute and punish offenders of crimes falling within the jurisdiction of both national courts and the international criminal court.
The concept of inherent jurisdiction of the international court was not in harmony with the principle of State sovereignty, he continued. It was also inconsistent with the complementarity principle and was contrary to considerations of reality and pragmatism. The concept could also discourage many Member States from becoming party to the statute. His Government did not support the Security Council having any role in the workings of the international criminal court, as any intervention by the Council might undermine the international courts independence in investigations, prosecutions and judicial functioning.
MELUSIE MARTIN MASUKU (Swaziland) said that, despite the many questions that remain in the establishment of an international criminal court, progress on that matter should not be delayed. Prolonging the matter would be to the further detriment of the unsuspecting innocent and helpless peoples of the world who were in a position of imminent danger from the perpetrators of the
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"core crimes" -- crimes of genocide, war crimes, crimes against humanity and crimes of aggression. Such a situation should not be allowed to prevail.
He said the court had been delayed for too long and it should be established early. Many of the questions that remain should be settled during the diplomatic conference scheduled for Rome during June and July 1998. The issues that remain unresolved should not lead to a state of inaction and paralysis which might send wrong signals to the international community.
SOH TZE BIAN (Singapore) said his country was encouraged by the progress that had been made on the establishment of an international criminal court, despite the enormity of the task and the outstanding issues which have yet to be resolved. The progress made should be attributed to a willingness of everyone to work with each other to understand and overcome differences in positions and opinions. That spirit of cooperation and compromise should continue to prevail in the remaining sessions of the Preparatory Committee.
DUAN JIELONG (China) said the most important issue facing the Preparatory Committee was determining the crimes under the court's jurisdiction. The definition of crimes should be defined on the basis and within the scope of concepts that have been accepted by the majority of States and thereby, integrated into customary international law. Those crimes included genocide, war crimes and crimes against humanity. If a definition of crimes of aggression could be determined, that should also fall under the court's jurisdiction. Concepts that had not yet become a part of customary international law should have no place in the statute of the court.
On the court's relationship with the Security Council, he said it was important that the court maintained its independence. His country would give full consideration to any proposal that would ensure the independence of the court on the one hand and reasonably reflect the special role of the Security Council in the maintenance of international peace and security on the other.
IGOR GREXA (Slovakia) said his delegation fully endorsed the position of the European Union stated by the representative of the Netherlands. His country supported the establishment of the court and had fully participated in the work of the Preparatory Committee. He said the court's establishment would prove a failure if its draft statute did not command universal support. The establishment of the court was indispensable and the international community supported the idea of such a court.
The Preparatory Committee should work towards removing the remaining brackets in the draft articles, he said. Slovakia opposed the inclusion of the death penalty among the statute of the court. His delegation shared the view that common language should be found in the drafting of the convention in view of the different legal systems that existed. It was desirable that the convention should not only be ratified, but that States should identify with
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its underlying philosophy. The court should serve as a deterrent to potential criminals. Its financing should be dealt with and it should not be prisoner to its budget. The court should be a lean body and economical in its work.
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