UNITED STATES DECLARES AT CONFERENCE THAT UN SECURITY COUNCIL MUST PLAY IMPORTANT ROLE IN PROPOSED INTERNATIONAL CRIMINAL COURT19980617 Chief Prosecutor of Former Yugoslavia, Rwanda Tribunals States His Preference to Have No Court At All Than One under Political Control
(Reissued as received from an Information Officer.)
ROME, 17 June -- The United States representative this morning called for an International Criminal Court that would operate in coordination, not in conflict, with the Security Council and that would be fiscally and administratively independent from the United Nations.
Addressing the Diplomatic Conference negotiating the Establishment of the Court, meeting currently in Rome, he said the United Nations Security Council remains a vital part of the world order and must play an important role in the work of a permanent Court. The Council must be able to refer critical situations to the court for investigation, and must be able to instruct countries to cooperate with it.
The first Chief Prosecutor of the former Yugoslavia and Rwanda Tribunals, Justice Richard Goldstone, stated that the International Criminal Court would have no credibility and international justice would be seriously compromised if the Court or its prosecutor was made subject to the control of political bodies, whether the Security Council or State parties. Justice Goldstone, speaking on behalf of the Coalition for International Justice, a non-governmental organization, said the objections to a Court free of political control were without merit and if they succeeded there should be serious doubt as to whether the Court should be established at all.
Also this morning the Minister of Foreign Affairs of Italy, Lamberto Dini, stressed that it is crucial to identify the crimes falling under the jurisdiction of the Court. Notwithstanding that the Security Council has primary responsibility for ascertaining the crime of aggression, the Court should also be able to do so. Failure in this area would deprive the Court of one of its primary functions. He also urged that the Court's prosecutor have authority to undertake investigations independently.
Cuba's representative declared that the Court could not be an instrument to intervene in the internal affairs of States; it must be an independent and impartial body, and for that reason should not be subordinated to the Security Council.
Statements were also made by the Foreign Ministers of the United Arab Emirates, the Deputy Foreign Minister of Mozambique, the State Secretaries for Foreign Affairs of Guinea and San Marino, the Attorney General of Zambia, the Ministers of Justice of Poland and Bulgaria and the Deputy Prime Minister of Croatia. Representatives of Slovakia, Brunei Darussalam, Tajikistan, Hungary, Iran, Azerbaijan, Lebanon, Estonia and Republic of Moldova also spoke, as did representatives of the Council of Europe, International Humanitarian Fact Finding Mission, International Criminal Police Organization, Women's Caucus for Gender Justice in the International Criminal Court and Transnational Radical Party.
The Conference will continue to hear general statements at its next meeting, at 3 p.m. today.
Conference Work Programme
The United Nations Conference on the Establishment of an International Criminal Court met this morning to continue to hear general statements.
LAMBERTO DINI, Minister of Foreign Affairs of Italy: What common sense demands is to put in place an instrument that will be able to punish violations of international law and which will make clear to all that even in war, crimes are punishable.
The proliferation of conventions stands in contradiction to the violations of rights that the world has seen. The only way to tackle that is to establish an institution that will try and prosecute the individuals that commit those crimes. It must be a strong institution, with broad participation to make it universal, based on the principles of right to fair trial and judicial defence.
The Court must have jurisdiction to act when national courts are unable to act. It is crucial to identify the crimes falling under the jurisdiction of the Court. Notwithstanding that the Security Council has primary responsibility for ascertaining the crime of aggression, the Court should also be able to do so. Failure in this area will deprive the Court of one of its primary functions.
A prosecutor must have authority to start investigations independently. The Court's jurisdiction must be triggered automatically; otherwise it will be
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reduced to an arbitration tribunal unable to punish the crimes within its scope. The project to institute the Court belongs among the highest political achievements. We expect no indulgence if we fail in our endeavour.
MICHAL VALO, Prosecutor General of Slovakia: Slovakia supports the establishment of an International Criminal Court. It must be an independent international body with clearly defined authority and the ability to translate this authority into action.
Slovakia does not support the creation of a weak organization. Its authority must also extend to the crime of aggression. The Court should have jurisdiction only when national legislation cannot or is not able to fulfil its duties. The criminal code of Slovakia provides for crimes of genocide, war crimes and crimes against humanity. Most conflicts these days are internal conflicts; thus civil war should also be under the purview of the Court, but only when a State is a party to the treaty or gives its consent. The statute must exclude the possibility of reservations.
RASHID ABDALLAH AL-NOAIMI, Foreign Minister of the United Arab Emirates: There is a need to cooperate with efforts to ensure stability, both at national and international levels. More and more, there are violations of human rights all over the world, and because of that there is a need for an instrument to combat such violations.
The United Arab Emirates has acceded to several international conventions concerning human rights, and its constitution contains provisions relating to human rights and fundamental freedoms. The efforts of the international community in the areas represented in the 1949 Geneva Conventions face a problem because these conventions failed to establish a mechanism for deterrence; thus the need for establishing the Court, particularly to punish those who violate the right to life.
It is important to define very precisely what crimes will be included in the statute. The principle of independence of the Court must be based on its relationship with the United Nations. The prosecutor should not be able to initiate cases on his or her own, but should be subject to the trigger functions of the Security Council. The Court should only consider cases on non-members to the treaty with the State's consent or following instructions of the Security Council.
HIPOLITO PATRICIO, Deputy Minister of Foreign Affairs and Cooperation of Mozambique: The recent increase in acts of aggression is because criminals know that with the help of time, isolation and silence and with the connivance of some interests or States, they can smoothly restart their lives elsewhere, mainly when they own large amounts of financial resources.
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Mozambique recognizes the sacrosanct nature of sovereignty and non- interference and also the need for the prior consent of a State to confer jurisdiction to an international Court like the one being established by this Conference. The Court must be a complementary mechanism to national courts in dealing with serious crimes of international law, including genocide, war crimes, crimes against humanity and aggression, which need to be clearly defined in the statute. The Court should be supported by the United Nations regular budget at the beginning while its own resources are insufficient, but that should not compromise the independence of its organs, judges and prosecutor.
MAIDIN HASHIM (Brunei): Individuals should be made responsible for grave violations of international law. There is a strong case for the establishment of an International Criminal Court. Brunei Darussalam supports the inclusion of the core crimes in the jurisdiction of the Court, and inclusion also of treaty crimes, although this could be dealt with later by the Court. Inclusion of the crime of aggression is acceptable provided that a clear and precise definition is arrived at. To be effective, the Court must be impartial and independent; this can be achieved by ensuring that the judges and other office holders of the Court are fully qualified and professionals in their particular fields.
To be effective in dispensing the Court's mandate, the prosecutor should be given all adequate opportunity to conduct his or her tasks without hindrance, but under the control of the pre-trial chamber. Brunei Darussalam reiterates the need to ensure that the Court is impartial and independent, free from political influence of any kind. A close relationship with the United Nations through the mechanisms of an agreement could be supported.
There is need to balance the objective of the establishment of the Court and the interest of States. To be widely acceptable, the Court should supplement and not supplant national jurisdiction. It is the primary duty of States to investigate and prosecute those suspected of committing the crimes which fall within the Court's jurisdiction.
TALBAK NADAROV (Tajikistan): There is acute need for the establishment of the International Criminal Court. Its jurisdiction must include the most serious international crimes: genocide, crimes against humanity and war crimes. Those crimes endanger international peace and security. Terrorism in all its forms, as well as drug trafficking should also come under the Court's jurisdiction. The relationship between the Court and national judicial systems must be made clear.
The Court must be independent because of its specific task. Its relationship with the Security Council should be based on their mandates. The Security Council must play a role in determining the crimes to be placed before the Court. The Court must be absolutely independent.
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FRANCOIS LONSENY FALL (Guinea): The establishment of an International Criminal Court which is independent, effective and functional will be a major step in the implementation of international humanitarian law. The Court could carry out its functions if it is independent and enjoys universality.
As a judicial body, the Court must carry out its functions independently. The prosecutor must also carry out investigations independently.
The Court must complement national jurisdictions with respect for national sovereignty. It must carry out investigations when national bodies are incapable or unwilling to doing so. Guinea is concerned over questions of aggression, as it has been a victim in the 1970s. It supports compensation for victims. The establishment of the Court would be a historic step forward. The international community must work to end the crimes of genocide, war crimes and crimes against humanity.
JANOS GOROG, State Secretary for Foreign Affairs of Hungary: Hungary believes that the International Criminal Court should have an inherent jurisdiction over the core crimes of genocide, war crimes and crimes against humanity. The crime of aggression should also be included in the statute, provided that a satisfactory formulation can be found on its definition and on the role of the Security Council. The inherent jurisdictional regime should exclude any form of State consent requirements. The Court should have the authority to determine whether the competent national courts are unable or unwilling to exercise their jurisdiction.
The prosecutor should be empowered to initiate investigations and proceedings on his or her own motion, subject only to review by appropriate organs of the Court itself. States parties should be under a mandatory obligation to comply with requests for assistance and cooperation by the Court, with no grounds for refusal on the basis of national laws and State-to- State cooperation agreements. The Court should ensure the highest international standards of fair trial and due process at all stages of the proceedings. There should be no reservations to the statute of the Court, as that would defeat its object and purpose and would lead to an unworkable system.
JAVAD ZARIF (Iran): The world today faces a unique opportunity as well as responsibility to establish the International Court. The international community and the victims of those crimes had suffered enough from the activities of existing mechanisms and double standards. Flexibility and consensus-building are the best way to finalize the statute.
A document should be prepared that would allow for the principle of universality to be met. A well defined and limited scope of the Court would
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facilitate its early establishment. Iran favours the inclusion of the crime of aggression in the Court's statute.
Consent of States should be required for the Court's operation. The role of the Security Council has to be precisely defined in the statute of the Court, which should not depend on the Council's approval for action. It is important to establish modalities for election of judges that will allow for representation of all legal systems.
BONAVENTURE CHIBAMBA MUTALE, Attorney-General of Zambia: Zambia advocates the creation of an independent and impartial Court as an effective complement to national criminal justice systems operating within the highest standards of international justice. To this end, the Court must have inherent jurisdiction over the core crimes of genocide, crimes against humanity, war crimes in international and non-international armed conflicts and aggression.
Zambia strongly supports an independent and impartial prosecutor, whose functions must be guaranteed by the statute. The prosecutor should be able to initiate investigations for any alleged crimes over which the Court has jurisdiction, based on information from any source, without interference.
Zambia calls for the upholding of the rights of suspects, accused persons, witnesses and victims at all stages of the proceedings. In particular, the Court should be sensitive to the rights of women and children.
KHANLAR HAJIYEV, Chairman of the Supreme Court of Azerbaijan: Azerbaijan reaffirms its belief in the need to establish an International Criminal Court. The prompt establishment of such a body will obviate the establishment of ad hoc courts.
The principle of complementarity is of extreme importance. The Court's jurisdiction should include only the most serious crimes, provided that the Security Council has stated they have been committed. There should not be statutes of limitation to such crimes; non-signature of the treaty should not allow States to commit those crimes.
The death penalty should not be included in the statute of the Court. Aggression should not be excluded from its jurisdiction. Azerbaijan has been a victim of aggression and has territory still under occupation, despite Security Council resolutions.
JOSE PERAZA CHAPEAU, Director of Juridical Questions at the Ministry of Foreign Affairs of Cuba: The Court cannot be an instrument to intervene in the internal affairs of States. It is not only a matter of punishing but of preventing. It is important to have a precise definition of the crimes before the Court. Aggression, and the threat or use of force must be part of the crimes under the Court's jurisdiction.
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The Court must be an independent and impartial body, and for this reason it should not be subordinated to the Security Council. Without a financial basis, the Court will not function. The ideal of justice is eternal and will only be achieved when the philosophy of plunder disappears, which will lead to the disappearance of wars and injustice. Cuba has been victim of a genocidal economic war for 40 years, in an attempt to force it, through hunger and disease, to change the political and economic system it chose to follow in 1959 in an exercise of self-determination.
HANNA SUCHOCKA, Minister of Justice of Poland: The world today seems to require a mechanism such as the Court even more than 50 years ago at Nuremberg, as the situation in the Balkans demonstrate. It must be a truly effective and workable Court. Poland fully supports the idea of complementarity of the Court to national courts. The Court should have automatic competence over crimes committed by States parties. Poland, which has been victim of aggression, supports inclusion of that crime under the Court's jurisdiction. An acceptable solution must be found to the situation between the role of the Security Council and the definition of aggression. The prosecutor should have ex officio powers; however the Council's responsibility in the maintenance of international peace and security should not be diminished.
GABRIELE GATTI, Secretary for Foreign Affairs of San Marino: San Marino believes that the relationship between the International Criminal Court and national jurisdictions must be based on the principle of complementarity. The Court, however, must not replace national judges, but cooperate with them within the cases specifically envisaged by the statute. The Court must have the power to set the cases coming under its jurisdiction. San Marino supports the idea that it is the prosecutor, and not Member States, who can take penal action. The statute will have to provide for internal control mechanisms relative to the prosecutor's penal action.
Crimes for the Court's jurisdiction must be clarified and include those perpetrated in international and national armed conflicts.
WALID NASR (Lebanon): The International Criminal Court should be independent, impartial and effective, promote respect for international humanitarian law, and which seeks to protect all members of the international community. Lebanon expects the Court to contribute to the maintenance of international peace and security. It should not obstruct the role entrusted to the Security Council and the General Assembly by the Charter. It should cooperate with them but remain independent, while complementing their roles. This would help change the pattern of sanctions currently in force. Sanctions would no longer have to be used against peoples and third country parties, which collectively end up bearing the brunt of sanctions regimes under existing arrangements.
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The Court should be impartial and effective, making sure that it represents the different legal systems, particularly in the office of the prosecutor. In discussing the issue of complementarity in jurisdiction between the Court and national courts, the language chosen must be precise and clear. The prosecutor and his deputies must be given clear authority to submit a case to trial at the request of a State whose nationals were the victims of a criminal act expressly described in the statute of the Court. The cooperation of governments with the Court must be secured and the necessary immunities for its different organs must be guaranteed. The jurisdiction of the Court should extend to all the acts listed in the definition of war crimes under the Geneva Conventions.
LJERKA MINTAS HODAK, Deputy Prime Minister of Croatia: The experience with the international trials gathered so far clearly shows that the establishment of a permanent and universal Court is only possible if the conditions for and equal treatment of all individuals and States are fully met. The need for the Court to be effective obviously presupposes that we accept abandoning to a certain degree the classic concept of sovereignty of States. At the same time the principle of subsidiarity must be fully acknowledged.
All States, regardless of their size, economic and military strength have to cooperate with the Court in the same manner and implement its directives. We must also have the guarantees that the cases that the Court will be processing are indeed the ones that deserve it through their gravity and significance. The Court must provide for global affirmation of the highest legal and moral values of humankind. All States and individuals must enjoy the same mechanisms of protection in front of the Court. They must also share the same obligations.
IVAR RAIG (Estonia): The Court should have jurisdiction over the core crimes of genocide, crimes against humanity and war crimes. The inclusion of the crime of aggression, properly defined, should be within the jurisdiction of the Court.
Estonia cannot accept the exclusion from the Court's jurisdiction of war crimes committed during an internal conflict.
The role of the prosecutor is crucial for the Court's effectiveness. The prosecutor must be able to initiate a proceeding ex officio and be able to receive complaints from the widest possible number of sources.
The Security Council must be able to refer situations to the Court. But to ensure the respect for the basic principle of law that a Court must be impartial and independent, prosecutions should not be subordinated to a prerogative conferred on the Security Council to prevent or delay prosecutions when it is dealing with a situation under Chapter VII of the Charter.
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There should be no provision for a death penalty. The Court should be financed flexibly from the United Nations regular budget and contributions of State parties.
IURIE LEANCA, Vice-Minister for Foreign Affairs of the Republic of Moldova: The establishment of the International Criminal Court will make a major contribution to the maintenance of international peace and security of the world. States parties must accept the jurisdiction of the Court and the principle of complementarity must be implemented. To ensure the independence of the Court, it is important that its relationship with the Security Council be very constructive. The prosecutor should have the right to initiate cases without waiting for consent by the Security Council.
VASSIL GOTZEV, Minister of Justice and European Integration of Bulgaria: The Court should be complementary to national jurisdiction. In this respect, Bulgaria has ratified the most important documents in the field of international law.
The Court should exercise jurisdiction over the core crimes, including aggression. The Court should also have jurisdiction over crimes committed during civil wars. It must be independent of the Security Council, its prosecutor should act independently from the Council and should be entitled to ex officio prosecution.
The statute of the Court must contain precise provisions on the role of the prosecutor, which can never act in a biased way. Bulgaria supports the establishment of a truly universal International Criminal Court.
BILL RICHARDSON (United States): The creation of a permanent International Criminal Court must represent a singular statement of consensus: genocide, crimes against humanity, and the most serious war crimes are never acceptable. The Court cannot be the creation of only a single group of nations. It must be built on the firm ground of international consensus and enjoy international support. Only then will it be truly powerful and effective.
The United Nations Security Council remains a vital part of the world order. The United States believes that the Council must play an important role in the work of a permanent Court, including the Court's trigger mechanism. The Council must be able to pursue the aims of peace. The Council must be able to refer critical situations to the Court for investigation, and must be able to instruct countries to cooperate with the Court, if necessary and appropriate within its powers. The Council's mandatory Chapter VII powers will be absolutely essential to the workings of the Court -- not only for enforcement but also to ensure the true universality of its jurisdiction and powers.
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The Court must operate in coordination, not in conflict, with the Security Council and its role and powers under the United Nations Charter. It must complement national jurisdiction and encourage national action wherever possible. It must depend, necessarily and fundamentally, on the support of the international community to ensure the effective exercise of its powers. This Court cannot and should not address every crime that goes unpunished, no matter how horrific or atrocious it may be. To be sure, the United States regards all violations of human rights and international humanitarian law as reprehensible. But, we must not turn an International Criminal Court -- or its prosecutor -- into a human rights ombudsman open to, and responsible for responding to, any complaints from any source. At best, the proposal for a self-initiating prosecutor is premature. The Court should first have the opportunity to establish its credibility. If we move too quickly, we may create a Court that will appear sound on paper but collapse under the weight of its own mandate.
The Court must operate with a clear, precise and well-established understanding of what constitutes a crime. We should avoid defining crimes that are not yet clearly criminalized under international law. Neither we nor the Court should seek to legislate new crimes that are not already established. The United States believes, along with many others, that the goals of this Conference would be best served by the creation of a Court fiscally and administratively independent from the United Nations.
More generally, we are not here to create a Court that exists to sit in judgement on national systems or second-guess each action and intervene if it disagrees. We are here to create a Court that focuses on recognized atrocities of significant magnitude and thus enjoys near-universal support. An International Criminal Court will succeed only if governments draft a treaty that melds effectively the proper roles of individual States, their national judicial systems, the Security Council and the Court itself.
BOSSE HEDBERG, of the Council of Europe: The Council of Europe strongly supports the creation of an effective International Criminal Court as a means of consolidating the rule of law at the international level. It has been said that the Court's very existence will send a significant signal. This is true, but the Court must not only come into existence, it must also have the solid support of the international community at large and must be endowed with the powers, procedure and means to be effective and thereby command immediate and permanent respect worldwide.
MARCEL DUBOULOZ, of the International Humanitarian Fact Finding Commission: The Geneva Conventions have been very useful but they lack a fundamental provision, and the establishment of the International Court will be the missing piece. The Commission is composed of 15 members working in their national capacity. More than 15 States have recognized the authority of the Commission. The Commission welcomes with high hopes the establishment of
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an International Criminal Court and envisages close cooperation with the new body. The Commission might be an instrument of first choice when the need exists for a fact finding mission. RAYMOND E. KENDALL, of the International Criminal Police Organization (Interpol): The idea of establishing an International Court is of particular importance to Interpol. Interpol remains the only intergovernmental organization allowing its members to exchange information in a fast and reliable manner. Cooperation between the ad hoc tribunals and Interpol must be seen as a point of no return, and that would extend to a permanent tribunal. The provisions of the draft statute which refer to Interpol, in chapter IX, need revision, and Interpol would like to participate in the negotiations on that text to explain its position better. ANA ELENA OBANDO, of the Women's Caucus for Gender Justice in the International Criminal Court: The Court offers a historic opportunity for the international community to address the question of humanitarian law. The Court should have inherent jurisdiction over core crimes without requiring State consent. Crimes over which the Court will have jurisdiction should include all acts of gender violence, covering all situations other than armed conflict. The procedures and its composition should also have a gender perspective. Non-governmental organizations should participate in various aspects of the Court, including presenting complaints. MARINO BUSDACHIN of the Transnational Radical Party: We are aware that the International Criminal Court will not be the solution for all the problems of the world. But we also believe that it will be a powerful tool to complement politics and diplomacy. We need an International Criminal Court to end impunity for those responsible for the most heinous criminals that are at large around the world living everyday lives in the most peaceful circumstances. Justice RICHARD GOLDSTONE, first Chief Prosecutor of the former Yugoslavia and Rwanda Tribunals: If the International Criminal Court or its prosecutor is made subject to the control of political bodies, whether the Security Council or States parties, it will have no credibility and international justice will be seriously compromised. States parties and all Members of the United Nations would have substantial protection if the Court prosecutor is accountable and removable by judicial process. There is an additional assurance -- the office of the prosecutor would necessarily be staffed by professional lawyers and investigators from across the world. They would inevitably be the whistle-blowers if a prosecutor acted inappropriately or had a political bias unfairly prejudicial to any nation. The complementarity rules and judicial procedures to permit challenges to a prosecutor's assertion of jurisdiction would provide additional protection. The objections to an International Criminal Court free of political control are without merit, and if they succeed there should be serious doubt as to whether the Court should be established at all. It would certainly not receive the confidence and cooperation essential for its success. Without an effective, independent Court, it is the victims who will suffer the most.
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