GA/L/3149

CONSENSUS AGREEMENT ON TWO TEXTS SAID TO AUGUR WELL FOR FUNCTIONING OF INTERNATIONAL CRIMINAL COURT

Legal Committee Reviews Preparations for New Body; United States, Seeking Assurances on Procedures, Says It Wishes to be �Good Neighbour�

The consensus adoption of two key texts concerning the operation of the International Criminal Court was praised today as a development that would raise the future stature of the Court. As the Sixth Committee (Legal) reviewed a report on the progress of the Commission which is preparing the way for the Court, the representative of Canada said the adoption by consensus of the Rules of Procedure and Evidence for the Court, as well as a text on the Elements of Crimes listed in the Statute as being under the Court's jurisdiction was a promising sign, given that the Statute itself for the Court was adopted by vote. The general agreement which had been reached would reinforce the credibility of the Court as a truly international court.

The representative of Colombia, speaking for the Rio Group of Latin American and Caribbean countries, said the fact that 114 States had so far signed the Court�s Statute, and 21 had ratified it, had exceeded the most optimistic expectations, and was clear proof of the international community�s commitment to the establishment of the Court within the shortest possible time.

Philippe Kirsch (Canada), Chairman of the Preparatory Commission, said the negotiations had involved difficult compromises for all delegations. The Commission had worked hard to address all legitimate concerns and viewpoints, while at the same time ensuring consistency with the Statute.

The representative of Lesotho, speaking for the Southern African Development Community (SADC), said it was not enough to make calls for signatures and ratifications. Technical and financial assistance and cooperation were needed to speed up the process of ratifications.

While speakers called for the widest possible acceptance of the Court, many said it should not come at the cost of interfering with the integrity of the Statute. The representative of France, for the European Union and associated States, was one of several who stressed their willingness to cooperate with all delegations, but insisted upon a commitment to the integrity of the Statute. He said previous sessions of the Preparatory Commission had proved that if there were the political will, nothing was insurmountable.

Sixth Committee - 1a - Press Release GA/L/3149 9th Meeting (AM) 18 October 2000

The United States representative said his country wanted to be a �good neighbour� to the Court. However, there must be a way to preclude the automatic surrender to the Court of official personnel of a State which was not party to it, but which acted responsibly. That could be achieved without harming the functioning of the Court or undermining the integrity of its Statute. He said there was still time to strengthen the Court.

The International Criminal Court, which is to be a permanent judicial body with jurisdiction over genocide, war crimes and crimes against humanity committed by individuals, will become operational once the treaty establishing it -- commonly referred to as the Rome Statute �- receives 60 ratifications.

Mr. Kirsch said the Preparatory Commission would require two sessions of two weeks in 2001 to complete its mandate.

Also speaking this morning were the representatives of China, Sierra Leone, Iran, South Africa and Norway.

Hans Corell, Legal Counsel for the United Nations, made a statement on the Secretariat services that had been provided to the Commission. He informed the Committee that despite limited resources the Codification Division was preparing a bound version of the Official Records of the Rome Conference.

The Committee will meet again at 3 p.m. today, to take up the agenda item on effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives.

Sixth Committee - 3 - Press Release GA/L/3149 9th Meeting (AM) 18 October 2000

Committee Work Programme

The Sixth Committee (Legal) met this morning to discuss the report of the Preparatory Commission for the International Criminal Court. The report covers the results of the Commission�s last session, from 12 to 30 June, during which it met its deadline for finalizing two key texts on operational details essential to the Court�s eventual functioning (documents PCNICC/2000/L.3/Rev.1 and PCNICC/2000/INF/3).

The Commission approved the Rules of Procedure and Evidence for the Court, as well as a text on the Elements of Crimes listed in the Statute as being under the Court's jurisdiction (documents PCNICC/2000/INF/4/Add.1 and Add.2). The Commission also held a number of meetings and consultations with respect to a definition of the crime of aggression. A consolidated text of proposals on a definition is annexed to the report.

The report notes that other tasks are still to be addressed by the Preparatory Commission, which will remain in existence until the conclusion of the first meeting of the Assembly of State Parties. These include finalization of financial rules and regulations, a first-year budget for the Court, a relationship agreement between the Court and the United Nations, privileges and immunities of the Court, and a Headquarters agreement with the host country (Netherlands).

During the session, the Commission decided that at its next session, from 27 November to 8 December, it would initially limit its focus to negotiating the financial rules and regulations, the privileges and immunities, and the relationship agreement.

The Commission's officers are: Philippe Kirsch (Canada), Chairman; George Winston McKenzie (Trinidad and Tobago), Medard R. Rwelamira (South Africa) and Muhamed Sacirbey (Bosnia and Herzegovina), Vice-Chairmen. Salah Suheimat (Jordan) is the Rapporteur.

Statements

HANS CORELL, Legal Counsel for the United Nations, informed the Committee about Secretariat services provided to the Commission. Referring to the two trust funds for facilitating the participation of least developed countries and other developing countries, he said that, as a result of contributions, return tickets had been provided to 21 delegates from least developed countries at the Commission�s fourth and fifth sessions. The Secretariat was receiving requests for assistance from least developed countries wishing to attend the upcoming session. No contributions had been made to the trust fund for other developing countries. However, the Codification Division was preparing a bound version of the Official Records of the Rome Conference which would be issued in two volumes. However, the work had to be done within financial constraints and with a limited number of staff.

PHILIPPE KIRSCH (Canada), Chairman of the Commission, said it had been an important year in the collective efforts to bring into reality the International Criminal Court. The Commission had successfully completed the first part of its mandate in meeting the deadline for finalizing the Rules of Procedure and Evidence and the Elements of Crimes. The draft instruments had been concluded by general agreement which had involved difficult compromises for all delegations.

Delegations had worked hard to address all legitimate concerns and viewpoints, while at the same time ensuring consistency with the Statute, he said. The efforts to reach general agreement showed that, for the Court to be fully effective in its work, it should enjoy support that was as wide as possible. The consensus also demonstrated general international acceptance of the procedures of the Court and the crimes within its jurisdiction. That would provide the Court with an even stronger international stature and should facilitate widespread ratification.

Although, its workload had been daunting, the Commission had worked efficiently and effectively. In view of the tasks that remained for the Commission, it was felt that two sessions of two weeks would be required in 2001.

FRAN�OIS ALABRUNE (France), speaking on behalf of the European Union and for Bulgaria, Cyprus, Estonia, Hungary, Latvia, Malta, Czech Republic, Romania, Slovakia and Slovenia, said current events had demonstrated the need for the establishment of an International Criminal Court. He said the Court, when created, would be a powerful instrument for dealing with and preventing the most heinous crimes which affected the international community.

By ending such impunity, he said, the Court would strengthen the primacy of law and contribute to peace in the world. The Rome Statute reflected those goals. The Statute gave the Court the powers to adjudicate over specified crimes that would apply in a range of cases, including when governments massacred citizens in cold blood. The Statute also entrusted States with responsibility in applying international law and humanitarian law. The culture of responsibility of States should help the Court to carry out its functions when States failed to take action. The Statute fully guaranteed the rights of accused persons. The European Union noted that the rights of victims were also covered, including their right to participate in proceedings.

He noted the important steps that had been taken to transform the Court into reality. He said the willingness and solid commitments of delegations to compromise had strengthened the idea of the establishment of the Court. Referring to other issues the Preparatory Commission must tackle at its forthcoming sessions, he said he hoped it would be able to come up with a universally acceptable definition of a crime of aggression.

He reiterated the commitment of the European Union to the integrity of the Statute and its willingness to cooperate with all delegations. He pointed out that previous sessions of the Preparatory Commission had proved that with political will nothing was insurmountable. He noted that several European States were among those 21 countries that had ratified the Statute and that many more would follow. He appealed to all States to ratify and sign the Statute. He announced that the European Union had launched an initiative to encourage ratification. He renewed the European Union�s offer to share its expertise with States on their ratification process.

The European Union was committed to the establishment of the Court and in working harmoniously with the United Nations on it. He stressed the need for States to take advantage of the Millennium Assembly and sign the Statute.

ALFONSO VALDIVIESO (Colombia), speaking on behalf of the Rio Group, reaffirmed the commitment undertaken by the member States of the Group in a declaration adopted at Cartagena de Indias on 14 June this year. (The member States of the Group are Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, Venezuela, and Guyana.) He said the adoption by the Preparatory Commission of the instruments governing the elements of crimes and rules of procedure within the time frame established by resolution F adopted at the Rome Conference on the Court, and the fact that 114 States had thus far signed the Court�s Statute and 21 had ratified it, had exceeded the most optimistic expectations. It was also a clear proof of the international community�s commitment to the establishment of the International Criminal Court within the shortest possible time.

He said the Rio Group was convinced of the need for the Court because of the challenges posed for the international community by the impunity of the perpetrators of genocide, crimes against humanity and war crimes, and the need for a court to discourage the commission of such crimes. They commended the Secretary-General for identifying the Rome Statute among the 25 core multilateral instruments whose signature and ratification should be accorded the highest priority by States. They pledged to spare no effort to contribute to the elaboration of all the instruments necessary for the establishment of the Court. The Group would participate in the work of the Preparatory Commission in the spirit of cooperation, the representative of Colombia said.

PERCY MANGOAELA (Lesotho), speaking for the Southern African Development Community (SADC), said the creation of the International Criminal Court would transform the United Nations into a third generation international organization, capable of meeting the new imperatives of human security. The Statute was a viable foundation for a strong, effective and independent Court. It was therefore essential that all subsequent documents not deviate from the Statute.

He said that thanks to the commitment of the majority of delegations, the prediction of skeptics that the Commission would not deliver, let alone deliver in full and on time, had once again been proved wrong. The consensus adoption of the instruments was a further testimony to the international community�s commitment to early operation of the Court. Efforts would have to be intensified to ensure speedy ratification of the Statute. Technical legal expertise and financial resources were required to meet the daunting task of undertaking extensive modifications to national criminal laws and procedures, mutual legal assistance provisions, extradition treaties and human rights laws. It was not enough to make calls for signatures and ratifications; collective efforts of support, as well as technical and financial assistance and cooperation were needed to speed up the process. The SADC had proposed a trust fund to coordinate those efforts to assist States in implementing legislation.

QU WENSHENG(China) said completion of the two documents had laid a solid foundation for the smooth functioning of the Court in the future. Despite the grave concern it had voiced during the Rome Conference on the definition of some crimes, China had demonstrated flexibility and a constructive spirit throughout the Preparatory Commission process. Despite reservations, it had joined the consensus on the text on elements of crimes, in recognition of the hard work done by the Commission, as well as its belief that the document had struck a certain degree of balance by taking account of the concerns of all sides. When the document was used as a guide in helping the Court to interpret and apply provisions of the Statute, the letter and spirit of the Statute must be observed.

He said that while the incorporation of features of different legal systems had resulted in relatively balanced provisions in the Rules of Procedure and Evidence on the rights and obligations of parties concerned, China had reservations about the discretion given to the Court in some matters. To prevent abuse, it was necessary to stress the relevant provisions in the Statute on the status of the Rules of Procedure and Evidence, namely that they must be consistent with the Statute and that in the event of conflict, the Statute should prevail.

Stating that any amendments to the Statute in violation of normal procedure would put many States in a quandary, he urged caution in that matter. China had always held the crime of aggression to be a serious international crime, and had supported its inclusion under the jurisdiction of the International Criminal Court. China adopted a cautious and pragmatic approach concerning the definition of a crime and the role of the Security Council.

DAVID SCHEFFER (United States)said he believed the texts on elements of crime and the rules of procedure and evidence would stand the test of time, as they were consistent with customary international law and international standards of due process. Citing the large number of countries which had signed or ratified the treaty, he said the United States deeply respected the commitment to the general principles of international justice shared by so many governments in the international community, a commitment which the United States had long stood for and had made major contributions to realize.

The United States wanted to be a good neighbour to the Court, in order to undertake important cooperative measures with it. To achieve that, he said, a fundamental issue needed to be resolved at the November session. Unless there was a referral to the Court under Article 13(b) of the Statute, there should be a means to preclude the automatic surrender to the Court of official personnel of a non-party State acting responsibly in the international community, and willing to exercise and capable of exercising complementarity with respect to its own personnel. That could be accomplished without harming the fair and efficient functioning of the Court or in any way undermining the integrity of the Rome Statute.

�We are open to discussions about how to resolve this fundamental issue,� he said, adding �We need a clear articulation of the procedure to give confidence to the non-party States that their good faith performance will be honored by the Court.�

Achieving workable arrangements during the November session would enable the United States to cooperate with the Court in several areas, he said. In the future, it might even be able to examine the merits of becoming a party. However, if no arrangement could be negotiated, the United States would then envisage a much more difficult relationship with the Court. A negative result at the next session could have a major impact on the ability of non-party States to participate in certain types of military contingencies, including those with critical humanitarian implications. �Let us not lose this opportunity while there is still time to strengthen the Court,� he said.

ALLIEU KANU (Sierra Leone) said the immediate functioning of the Court would send a clear message that those who perpetrated the types of flagrant violations of international humanitarian law which recently occurred in his country would no longer be tolerated. One possible effect of the early functioning of the Court would be the ability to intervene when conflict arose, thus avoiding the need for military intervention. He said if the Court had been already functioning, Sierra Leone would not have requested the establishment of a Special Court approved by Security Council in its resolution 1315.

Sierra Leone was committed to the early entry into force of the Rome Statute of the Court. States should desist from acts that would emasculate efforts to establish the Court. Sierra Leone would like to see the inclusion in the Statute of a comprehensive definition of the crime of aggression. It had had a bitter experience of some of its neighbours engaging in nefarious activities, which fell within any conceivable definition of that crime.

Referring to the question of child soldiers, he said it was proposed to include in the statute of the Special Court for Sierra Leone �- still being negotiated �- the trial of child combatants aged 15 at the time of the alleged commission of a crime. The trial of combatants over 15, but under 18 years, was important for deterrence and reconciliation in his country. Those children must be held accountable, he added.

SAEID MIRZAEI-YENGEJEH (Iran) said the elements of crimes elaborated by the Preparatory Commission, when approved by the Assembly of the States parties to the Statute, would add clarity and precision to a number of definitions of the crimes contained in the Statute. They would also help the judges of the future Court to render their judgements. Similarly, the rules of procedure and evidence once adopted by the Assembly of States parties would also serve a number of important purposes. They would establish the framework for conducting trial and appellate proceedings, and provide consistency to the Court�s decisions and work. Moreover, they would provide guidance to parties as to what they could and could not expect in the Court�s proceedings. He emphasized that in cases of discrepancy between the rules of procedure and evidence and the elements of crimes on one hand, and the provisions of the Statute, on the other, the latter should prevail.

He said a number of instruments needed to be developed by the Commission before the entry into force of the Statute, so that the Court would become operational without undue delay. The definition of the crime of aggression must be accomplished within the lifespan of the Preparatory Commission. General principles of international law, as contained in the Statute, were applicable to all crimes within the jurisdiction of the Court, including the crime of aggression. Similarly, he said, international cooperation and judicial assistance, as envisioned in the Statute, pertained to all crimes specified in it. Consequently his delegation believed that the Preparatory Commission should strictly stick to the mandate entrusted to it and make every effort to accomplish it as early as possible. His delegation favoured a general definition of the crime of aggression followed by a non-exhaustive list of acts. On the question of the relationship of the Court and the Security Council, he said his delegation preferred that in cases where the Council failed to determine the aggressor then -- after the lapse of a specified period -- the Court itself should make a ruling.

ANDRAS VAMOS-GOLDMAN (Canada) said that issues of justice and impunity were increasingly prevalent considerations in international thinking. For example, the steps under way to ensure accountability in Sierra Leone were a welcome development. The International Criminal Court was one of the most promising opportunities to promote accountability and human security. A major element of the Canadian campaign to promote signatures and ratifications would be to discuss with interested States the technical issues involved in implementing the Statute. Another element was public outreach and raising awareness about the Court. Canada had launched a Web site on the subject and was planning a conference for Canadian youth.

The fact that consensus was reached on finalizing the two documents was a promising sign for the future of the Court, especially given that the Statute itself was adopted by a vote. The general agreement reached was an indication of the growing acceptance of the idea of the International Criminal Court and would reinforce the credibility of the court as a truly international institution. Canada appreciated that some countries continued to have significant concerns about the Court. An exemption or immunity for any particular State would not be consistent with the Statute nor with the fundamental precepts of international justice. Although Canada took seriously any concerns over possible frivolous prosecutions or other factors, it believed that the Statute, the Rules and the Elements provided significant safeguards against any possibility of such abuse.

ALBERT HOFFMANN (South Africa) described the consensus adoption of the texts on rules and on elements as another milestone toward the coming into operation of the Court. It was absolutely necessary that the Preparatory Commission be given adequate time and facilities to accomplish the rest of its mandate. South Africa expected that its full Parliament would hear and approve ratification of the International Criminal Court during the course of this year�s sitting.

He said South Africa continued to be concerned about the attempts by certain delegations to weaken the jurisdictional ambit of the International Criminal Court through the introduction of exemptions from the Court�s jurisdiction for nationals of certain States. While his country would continue to work with such delegations in an attempt to address their concerns, it would not support any attempts that would seek to limit the jurisdictional scope of the court as contained in the Rome Statute. He expressed the hope that those States with misgivings about the Court�s jurisdiction would reconsider their positions and sign the treaty before the closing date of 31 December.

HANS BRATTSKAR (Norway) said the International Criminal Court could significantly enhance deterrence against the most heinous international crimes. The court, by eliminating impunity would provide the international community with long-term peace-making dividends. In Norway�s view, the Rome Statute provided for an independent, effective and credible Court, while at the same time allowing it a broad basis to function. Norway had consistently supported measures that would prevent the court from becoming a tool for political purposes. The Statute provided for credible protection against biased or arbitrary prosecutions. It

also provided for important procedural safeguards, including those for the protection of sensitive military or other sources.

He said it was important to recognize that through the principle of complementarity with national jurisdictions, the court would be a �safety net� in cases where national investigations and prosecutions were not genuinely carried out. The court�s existence should therefore be a powerful incentive for States to do the work themselves. In Norway�s view, the Statute provided for an effective but also responsible institution; all efforts must be directed at activating domestic procedures to ensure the signing and ratification of the Statute. He renewed Norway�s offer to share information on its ratification process.

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