Magazine article UN Chronicle , Vol. 31, No. 4
Adoption of a 60-article draft statute for an international criminal court marked the forty-sixth session (2 May-22 July, Geneva) of the International Law Commission (ILC). The instrument had been requested in 1993 by the General Assembly in its resolution 48/31 as a "matter of priority".
The jurisdiction of the Court extends to: acts of aggression; genocide; apartheid; exceptionally serious war crimes; systematic or massive violations of human rights; torture, hostage taking; hijacking; and illicit trafficking in narcotic drugs.
The draft statute is divided into eight main parts: establishment of the Court; composition and administration; jurisdiction; investigation and prosecution; trial; appeal and review; international cooperation and judicial assistance; and enforcement.
The court's jurisdiction, unanimously considered as the core of the draft statute, does not necessarily rule out the authority of national tribunals over the same crimes. For the court to have discretion over a specific case, its jurisdiction must be accepted by: the State which has custody of the suspect; the State where the act or omission in question occurred; and the State which, under an international agreement, asked the custodial State to surrender a suspect for the purpose of prosecution.
Under draft article 23, the court also has jurisdiction over crimes referred to it by the UN Security Council acting under Chapter VII of the UN Charter--that is, in the maintenance of international peace and security. However, the draft statute says, "no prosecution may be commenced" on a situation being dealt with by the Council as a threat to or breach of the peace or an act of aggression, "unless the Security Council otherwise decides".
The text (A/491/0) was transmitted for consideration by the Assembly at its forty-ninth session.
In other areas, the ILC started the second reading of the draft code of crimes against the peace and security of mankind. Progress was also achieved on two other substantive matters.
On second reading, a complete set of 33 draft articles on the law of the non-navigational uses of international watercourses was adopted, together with a draft resolution on transboundary confined groundwater. The Commission recommended the texts to the Assembly, with a view to elaborating a convention by the Assembly or by an international conference of plenipotentiaries.
On the "international liability for injurious consequences arising out of acts not prohibited by international law", the Commission provisionally adopted a complete set of articles relating to preventive measures applicable to activities with the risk of transboundary harm. …