Academic journal article Denver Journal of International Law and Policy

Observations concerning the 1997-98 Preparatory Committee's Work

Academic journal article Denver Journal of International Law and Policy

Observations concerning the 1997-98 Preparatory Committee's Work

Article excerpt

I. INTRODUCTION

1. In 1989, Trinidad and Tobago proposed the creation of an International Criminal Court (ICC) to the General Assembly of the United Nations (UN) to aid in the fight against narcotics trafficking. This proposal revived the UNs work in connection with the establishment of an International Criminal Court. Previously, two special committees of the General Assembly had painstakingly developed in 1951(2) and 1953(3) draft statutes for a permanent International Criminal Court, but it had been tabled as a result of the "cold war." The only other UN initiative was in 1980 when a draft statute for the establishment of an international criminal jurisdiction to enforce the Apartheid Convention(4) was proposed, but it too was left without follow-up.

2. While there was little hope for the prospects of an ICC between 1989 and 1992, a chain of events was set in motion when the UN Security Council in Resolution 780(5) established a Commission of Experts to investigate violations of international humanitarian law in the Former Yugoslavia.(6) This was the first time since World War II that the international community provided for the investigation of violators of international humanitarian law. In its first Interim Report, the Commission of Experts stated that the establishment of an ad hoc international criminal tribunal would be "consistent with the direction of its work."(7) Recalling that report, the Security Council in Resolution 808 proceeded to establish the International Criminal Tribunal for the Former Yugoslavia (ICTFY).(8) The Resolution stated that the Security Council: "[d]ecide[d] that an international criminal tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991[.]"(9)

The Security Council followed the same procedure in 1994 in connection with the events in Rwanda, and established the International Criminal Tribunal for Rwanda (ICTR).(10) The events in Yugoslavia and Rwanda shocked the world out of its complacency and the idea of prosecuting those who committed international crimes acquired a broad based support in world public opinion and in many governments.

3. Largely out of the 1989 initiative of Trinidad and Tobago, and the International Law Commission's (ILC) work on the draft Code of Crimes Against the Peace and Security of Mankind,(11) the General Assembly in resolution 47/33 of November 25, 1992, requested that the (ILC) undertake the elaboration of a draft statute for a permanent International Criminal Court. By the time that this draft was produced in 1994, the climate in which it was viewed had changed significantly due in large part to the tragic victimization in the Yugoslav and Rwandan conflicts, and the fact that the Security Council had established in 1993 the International Criminal Tribunal for the Former Yugoslavia(12) 12 and in 1994, the International Criminal Tribunal for Rwanda.(13) In order to guide its work in drafting a statute for the ICC, the ILC looked to international precedents. They are: the Nuremberg(14) and Tokyo(15) tribunal statutes, the 1951(16) and 1953(17) ICC draft statutes, the 1980 draft statute for the creation of an international criminal jurisdiction to enforce the Apartheid convention,(18) the 1993 ICTFY Statute,(19) and the 1994 ICTR Statute.(20)

4. In 1994, the ILC completed a draft statute for an ICC and recommended to the General Assembly to call a conference of plenipotentiaries "to study the draft statute and to conclude a convention on the establishment of an international criminal court."(21) However, the Sixth Committee of the General Assembly, at the instigation of States reluctant to see the court come into being so rapidly, declined to call a diplomatic conference as the ILC had requested. Instead, the General Assembly established an Ad Hoc Committee to review the ILC's 1994 draft statute. …

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