GA/L/3151

ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT SHOULD NOT ERODE PREROGATIVES OF SECURITY COUNCIL, LEGAL COMMITTEE IS TOLD

Issue of ‘Crime of Aggression’ Discussed; Cambodia Announces Decision To Sign Court Treaty -– 115th Country To Do So

Cambodia announced today that it intended shortly to sign the treaty establishing an International Criminal Court, which would make it the 115th signatory. The Sixth Committee (Legal) was told of the decision, as the Committee continued its discussion on the progress made in the Commission preparing the way for the Court.

The representative of Cambodia said that as a country which had experienced the atrocities of genocide during the Khmer Rouge rule, it believed it was essential to replace the culture of impunity with a culture of accountability. In the meantime, though, a draft law, based on arrangements negotiated with the United Nations, had been submitted to its Parliament for approval, to allow a special tribunal to try senior leaders of the Khmer Rouge under Cambodian law.

The work of the Preparatory Commission in finalizing Rules of Procedure and Evidence for the Court, as well as the Elements of Crimes under the Court’s jurisdiction, was reviewed by speakers.

The representative of the Russian Federation said that the establishment of the Court was irreversible, given the number of States that had already signed and ratified the Statute. He was among several speakers who also addressed another part of the Commission’s mandate -- a definition of the crime of aggression. He cautioned against any attempt in the negotiations to bypass the prerogative of the Security Council.

The representative of Cuba said that work on the crime of aggression should be handled with the same diligence as was applied to the other tasks of the Commission’s mandate, as it was a priority for many delegations. The Observer for Switzerland said the Commission must have sufficient time for its remaining work and recommended a schedule of five weeks over two sessions in 2001.

The International Criminal Court, which is to be a permanent judicial body with jurisdiction over genocide, war crimes and crimes against humanity committed

Sixth Committee - 1a - GA/L/3151 11th Meeting (AM) 19 October 2000

by individuals, will become operational once the treaty establishing it -- commonly referred to as the Rome Statute –- receives 60 ratifications. So far, 114 countries have signed the treaty, and 21 have deposited their ratifications with the Secretary-General.

The Preparatory Commission held its last session from 12 to 30 June. Its next session is scheduled for 27 November to 8 December. The Committee was informed by its Chairman yesterday that the Commission bureau felt that two sessions of two weeks in 2001 would be required to work on some of the rest of its mandate, in particular, the financial rules and regulations of the Court, its privileges and immunities, and the relationship agreement between the Court and the United Nations.

Speaking this morning were the representatives of Republic of Korea, San Marino, Kenya, Cuba, Russian Federation, Trinidad and Tobago, Ghana, Mexico, Saudi Arabia, Brazil, Fiji, Democratic Republic of the Congo, Cambodia and Angola. The Observers for Switzerland and the International Committee of the Red Cross also made statements.

In other business, the representative of New Zealand announced that a text of a draft resolution on Oceans and Law of the Sea was being circulated.

The Committee meets again at 3 p.m. today to continue its debate on the Court.

Sixth Committee - 3 - Press Release GA/L/3151 11th Meeting (AM) 19 October 2000

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its discussion of 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 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. The Commission also held a number of meetings and consultations with respect to a definition of the crime of aggression. [For background information, please see Press Release GA/L/3149 of 18 October.]

Statements

FRANCOIS ALABRUNE (France) said he wished to add the names of Poland and Lithuania to the group of countries on whose behalf he spoke yesterday.

SUH DAE-WON (Republic of Korea) said the draft instruments had been the result of extensive negotiations. Given the complexity and delicacy of the issues involved, the Commission’s achievement was laudable. Compromises were required to bridge the gaps in the wide spectrum of national positions. Nevertheless, general agreement had been reached without infringing on the integrity of the Statute or on the key tenets of the Court, namely, fairness, independence and effectiveness.

More than a few potential snags awaited the Commission as it proceeded, such as the issue of the scale of assessment of States Parties’ contributions; the relationship agreement between the United Nations and the Court and the privileges and immunities of the Court. It also had to continue its work on a definition of the crime of aggression. Despite the delicacy and intricacy involved, he was confident that the precious momentum which had been created in the first stage would make it possible for the Commission to accomplish its tasks and bring countries to the final goal -- the actual establishment of the Court.

FILIPPI BALESTRA (San Marino) said his country had been the first European country to ratify the International Criminal Court treaty. While 114 nations had signed the treaty and 21 had ratified, the number still fell far below the 60 ratifications needed. Nevertheless, he added, more and more countries had underlined the exceptional importance of an early establishment of the Court.

Lately, there had been an increase in the rate of signatures and ratifications. He said the international community should take advantage of the favourable political climate; States which had not yet done so should sign and ratify the treaty.

FARES M.KUINDWA (Kenya) said substantial work had still to be done to bring the International Criminal Court into operation. The crime of aggression would need to be defined. The budget for the first year of the operation of the Court must be put in place, and the financial rules and regulations must be adopted. Still to be worked out were the agreements between the host country and the Court, and between the Court and the United Nations concerning privileges and immunities. He said his delegation had studied the draft of financial regulations of the Court and believed it formed a good basis for discussion.

It was incumbent upon all Member States and other stakeholders to act in solidarity and good faith as shown in the drafting of the Statute. The international community must redouble its efforts to establish the Court and thus rid the world of acts of impunity, he said. His delegation supported the proposal for the Preparatory Commission to hold two sessions each of two weeks in 2001.

SORAYA ELENA ALVAREZ NUNEZ (Cuba) said the conclusion of the negotiations on the two documents was not only vital to the functioning of the Court but also made an outstanding contribution to international law itself. The two texts were directly connected to the independence and impartiality of the Court. While the Preparatory Commission had already consumed most of the time allocated to it for the year, there was much still to be done, notably on the relationship agreement with the United Nations; the financial rules; privileges and immunities, and the definition of the crime of aggression.

She said Cuba believed that those instruments must preserve the integrity of the Rome Statute and not infringe upon the Court’s competence. Work on the crime of aggression should be handled with the same diligence as was applied to the other tasks of the mandate. On the crime of aggression, she said a definition should be hammered out and conditions determined for exercise of the Court’s jurisdiction. The issue was a priority for many delegations.

Cuba was among those countries committed to preserving the integrity of the Statute. The Court’s effectiveness should not be interfered with by proposals from certain countries promising to cooperate with the Court within the confines of their national interests, but persisting in their goal of domination and of manipulation to turn themselves into the masters of the Court.

VLADIMIR Y. TARABRIN (Russian Federation) said his country had signed the Rome Statute on 13 September 2000. With the number of States that had signed and ratified the Statute, it could confidently be said that the process towards the establishment of the Court was irreversible. Adoption by the Preparatory Commission last July of the Elements of Crimes and the Rules of Procedure and Evidence proved to be a necessary and important stage in the practical construction of the international criminal proceedings. Without belittling the significance of the documents yet to be worked out, he said, the instruments already completed, together with the Rome Statute, were the cornerstone that determined the character of the future Court, and the particular parameters of the functioning of its mechanisms.

He said the Preparatory Commission should rely on existing international law in defining the crime of aggression. The decision of the Security Council in determining that an act of a State was aggression was the basic element for the definition of the crime of aggression for the purposes of the Statute. Without that, he said, one could not speak of the international criminal responsibility of an individual for the perpetration of that crime. In the case of the presumed perpetration of a crime of aggression by an individual, the Court might be involved only after the Security Council determined the existence of the act of aggression on the part of a State.

He said the United Nations Charter was clear on who might appeal to the Security Council in its implementation of the responsibility for maintenance of international peace and security. It could be the General Assembly (under Articles 10 and 11 of the Charter), any Member State or non-member State if it was a party in the dispute (under Article 35) or the United Nations Secretary- General (under Article 99). Neither the Statute of the Court nor any other agreement could enlarge that list. He recalled that by Article 103 of the Charter, the obligations of Member States under the Charter took priority over obligations under any other international agreement.

He said attempts to bypass that prerogative of the Security Council were fraught with undesirable consequences. In such a case, the Court would be set off against the Security Council. Russia had concluded that from the standpoint of the Charter, the Court could not be given the right to direct a request to the Security Council. By Articles 39 and 24, responsibility for maintenance of peace was entrusted to the Council.

The Russian Federation, he went on, did not see the legal possibilities that would allow the International Court of Justice, through the Statute of the International Criminal Court, to obtain the right to qualify a State’s actions as an act of aggression, as had been proposed in debates in the Preparatory Commission. The Russian delegation, proceeding from the Charter of the Nuremberg Tribunal, proposed a general definition for the crime of aggression. It did not, however, object to it being more detailed, taking as its basis General Assembly resolution 3314.

He said the Russian Federation attached great importance to the future formulation by the Preparatory Commission of the agreement on relationship between the United Nations and the Court, as well as an agreement on the headquarters of the Court, financial regulations and a number of other instruments. It considered they should all be based on the Rome Statue, and that they would contribute towards universal participation in the future International Criminal Court.

GAILE RAMOUTAR (Trinidad and Tobago), speaking for the member states of the Caribbean Community (CARICOM), said the community had steadfastly supported the establishment of the Court since the proposal for re-introduction of the item on the Assembly agenda by her country’s President in 1989. The signers and ratifiers represented a wide cross-section of the international community. Their actions indicated recognition of the urgent need for the Court.

She said CARICOM welcomed regional efforts to promote ratification of the treaty and supported the proposal by the Southern African Development Community that a fund be set up to assist States in adopting implementing legislation. In negotiating the instruments still on the agenda of the Preparatory Commission, it was important not to undermine the Rome Statute in any way. She hoped that with additional time allocated, greater progress should be made in the definition of a crime of aggression. It was important for the issue to be decided by consensus; the task would require the demonstration of the necessary political will by all States.

NANA EFFAH-APENTENG (Ghana) said ad hoc international criminal tribunals like the ones for Rwanda and the former Yugoslavia, as well as the recently proposed Special Court for Sierra Leone, presented important opportunities for justice both at the national and international level. They could, however, not replace the more systematic approach that a permanent International Criminal Court could provide. Compromises were necessary to ensure that in creating an effective and independent Court, it had on board the largest possible number of States. That must be achieved without the integrity of the Court being compromised in any way.

He said Ghana was satisfied with the Rome Statute; it was the most effective signal that mankind would no longer tolerate immunity for crimes of mass violence and despicable acts carried out in total disregard of international humanitarian law. Ghana urged States with strong reservations over certain provisions of the Statute to show flexibility and pragmatism. Ghana welcomed the agreements already reached in the Preparatory Commission. Equally relevant for the successful functioning of the Court would be the relationship agreement between the United Nations and the Court, the agreement on the privileges and immunities of the Court, financial regulations and rules of the Court and the definition of the crime of aggression

Ghana hoped the contextual relationship intended to exist between the Court and the Security Council would be clearly arranged and in ways that did not compromise the independence or competence of the Court.

JORGE PALACIOS (Mexico) described the complex procedures which had been required in his country for the signing and ratification of the International Criminal Court treaty. Despite the fact that amendments to its constitution would be necessary, Mexico had decided to sign the treaty (which it did on 7 September) rather than leave itself the only other option of following the procedure of accession. That would not have been consistent with Mexico’s position of support for the principles behind the establishment of the Court, nor would it have reflected Mexico’s active participation in the negotiations.

Mexico wished to join the international community’s efforts to fight the most serious international crimes and not let them go unpunished. He expressed satisfaction with the growing number of signers and ratifiers.

ABDELELAH SHEAIBY (Saudi Arabia) said the definition of the crime of aggression and the relationship between the Court and the Security Council were very important. The International Criminal Court must be able to spell out its jurisdiction and competence in determining the crime of aggression. He said the coordinator on the definition of the crime of aggression should continue his work, and he hoped an agreement would be reached.

He said the Court must exercise its jurisdiction immediately on learning of the commission of a crime. The Security Council had sole authority in certain areas, but not necessarily in establishing the Court’s jurisdiction over a crime.

JOAO CLEMENTE BAENA SOARES (Brazil) said that despite the technical complexities involved in the novel field of international law and the challenge of bringing together into a coherent whole diverse legal traditions from around the world, an effective balance was struck in the common endeavour to ensure that the gravest of crimes did not go unpunished. The formulas agreed to satisfied the legitimate goal of dissuading and repressing massive human rights violations, while, at the same time, providing for the necessary caution and thoroughness in protecting individual rights. The result, he said, was a forward-looking and groundbreaking document, adopted by consensus, that delegations could be proud of.

Brazil had submitted draft legislation to its Parliament for ratification of the treaty, he said. However, significant constitutional and procedural hurdles remained. Nevertheless, there could be no doubt of Brazil’s commitment to the goal of the Court. Of the documents still to be negotiated by the Commission, the most challenging would no doubt be the relationship agreement between the United Nations and the Court. The Court would be an independent judicial institution, but with a mandate seeking to further the objectives of the Charter in the maintenance of international peace and security. The agreement, therefore, must reflect the necessary balance between independence and cooperation between those two institutions.

AMRAIYA NAIDU (Fiji) said his country was happy to have been the first from the Pacific region to ratify the International Criminal Court treaty. It was a signal of its deep respect for human dignity and human rights. Fiji looked forward to intensified efforts and a renewed political will that would enable the Court to meet the ratification threshold by December 2000. Such an event would be a fitting finale to the close of the twentieth century and the beginning of the second millennium.

ATOKI ILEKA (Democratic Republic of the Congo) said his country had, for some time, recognized the need for the International Criminal Court to deal with heinous crimes. The Court must intervene when action was not taken at the national level. He hoped the Court would help eliminate the State terrorism that was currently being carried out in the eastern part of his country by Rwanda, Uganda and Burundi. He hoped it would be possible to apply the Statute even before it entered into force so that the three countries could be held accountable. They had been guilty of violating international humanitarian law for which there should be no time limit for prosecution.

He said the Democratic Republic of the Congo had voted in favour of the adoption of the Statute of the Court in Rome. It recognized recent developments in the Preparatory Commission for the Court, which were encouraging. Noting that questions were still being raised about definition of crime of aggression, he said subordination of the Court’s jurisdiction in the matter to the Security Council could lead to a paralysis of the Court. His country’s ratification of the Statute would depend on the way the question of the crime of aggression was resolved. He said he supported the proposal by the Southern African Development Community (SADC) for a fund to help countries with the ratification process.

OUCH BORITH (Cambodia) said that, as a country which had experienced the atrocities of genocide during the Khmer Rouge rule, when its people had endured untold hardships and suffering from the “killing fields”, Cambodia warmly welcomed the adoption of the Rome Statute in 1998. This had paved the way for the process of creating the world judicial criminal court, which was essential to replace the culture of impunity with a culture of accountability. The Millennium Summit Declaration of the United Nations, as voiced by the world’s leaders, had also drawn the attention of all Member States to the significance of the Rome Statute.

On the question of the definition of the crime of aggression, he said it should be based on the relevant General Assembly resolution of 1974. He said Cambodia and the United Nations had negotiated an arrangement for prosecution of the senior leaders of the Khmer Rouge most responsible for the most serious crimes committed from 1975 to 1979. A draft law which had been submitted to the Parliament for approval allowed a special tribunal to try those responsible under Cambodian law. He also announced his country’s intention to sign the International Criminal Court treaty this week, and would proceed in due course with the ratification process according to constitutional requirements.

JOAQUIM A.B.B. MANGUEIRA (Angola) said the Angolan Parliament on 1 August last approved the Rome Statute, with its ratification expected soon by the head of State according to his country’s Constitution. He said the Statute must enter into force as soon as possible and called upon countries that had not yet signed or ratified it to do so. States must support the establishment of a strong and independent Court that had the overall support of the international community.

His delegation was convinced that the Preparatory Commission for the Court would resolve outstanding issues on its agenda at its next session, he said.

VALENTIN ZELLWEGER, the Observer for Switzerland, said the consensus adoption of the two texts was the most important development since the Rome Conference had ended. The problems encountered had been complex. The texts incorporated the principle of individual responsibility into international humanitarian law. As the depository for the Geneva Convention and its two additional Protocols, his country attached particular importance to the discussions.

He said he elaboration of the texts had posed a major challenge in having to strike a balance among the various legal systems and practices around the world. The spirit of cooperation and the goodwill that had prevailed in the negotiations were the reason the deadline had been met. The 114 signatories came from all regions of the world and bore testimony to the universality of the idea of the Court. The recent conflicts, which were some of the cruellest and bloodiest in history, demonstrated that the joint fight was far from won.

He expressed the hope that the Assembly would allocate sufficient time to allow the Preparatory Commission to complete its important work. Noting that the settlement of such important aspects as the financial rules for the Court could help countries in their ratifications, he suggested that five weeks over two sessions in the next year be allocated. In the context of future negotiations on other instruments, he said it was essential that the integrity of the Statute be preserved at all costs. The Commission had neither the resources nor the mandate to reopen negotiations on it. He also announced that a recommendation for ratification, as well as a legislative package, was being sent to the Swiss Parliament.

BERTRAND LEVRAT, Observer from the International Committee of the Red Cross (ICRC) said the ICRC -- in line with its mandate to promote both the development of, and respect for, international humanitarian law -- had consistently supported the establishment of a fair and effective International Criminal Court. It appreciated being able to contribute to the drafting of the rules of procedure and evidence, and to the definition of the elements of crimes, adopted at the last session of the Preparatory Commission.

He noted that the Geneva Conventions of 1949 entrusted the ICRC with the role of protecting and assisting victims of armed conflict. That role, complementary to that of mechanisms such as the International Criminal Court, could be accomplished only if the ICRC both maintained, and was perceived to maintain, strict neutrality in its work. Specifically, he said, the access of its delegates to the victims of armed conflict depended on the confidence of the warring parties that the ICRC would not provide evidence against them in subsequent criminal proceedings.

For that reason, he went on, the International Criminal Court for the former Yugoslavia recently recognized that the ICRC enjoyed a privilege against providing evidence as a matter of customary international law. The ICRC expressed its gratitude to the Preparatory Commission for that same recognition, embodied in the rules of procedure and evidence.

He said the ICRC called upon States that had not already done so to sign and ratify the Rome Statute of the International Criminal Court. That would send a strong message of deterrence and bring the Court into being at the earliest possible moment. It would also convey a message in support of the Court to those States that had not yet become convinced of the Court’s rightful place in the scheme of international justice. Through its advisory service on international humanitarian law, the ICRC also invited States to avail themselves of the technical assistance it offered in connection with ratification and national implementation of the Rome Statute. The ICRC expressed its support for the early entry into force of the Rome Statute.

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