Preparatory Committee Discusses Draft for International Criminal Court

Article excerpt

A further step towards the creation of an international criminal court to deal with genocide, war crimes, crimes against humanity, and aggression was taken, as the Preparatory Committee on the Establishment of an International Criminal Court undertook a comprehensive analysis of the draft statute of the proposed court, which had been elaborated by the International Law Commission.

The Committee, which met in New York from 25 March to 12 April, approved a six-part draft summary of proceedings, covering discussions of such areas as the scope of jurisdiction and definition of crimes, aggression, serious violations of the laws and customs applicable in armed conflict, and crimes against humanity. In a closing statement, Preparatory Committee Chairman Adriaan Bos of the Netherlands said that the session had collected useful documents on each of the important issues before it. Everyone was aware of the issues involved and it had become clear that certain parts of the draft statute, particularly the criminal law aspects, needed some further effort.

The Preparatory Committee, established under General Assembly resolution 50/46 of 11 December 1996, will meet again from 12 to 30 August, to deal with issues which had not been covered by the spring session, e.g, the institutional aspects of setting up the Court. Following that meeting, it will submit its report on the proposed international criminal court to the fifty-first Assembly.

Judicial organ

The international criminal court is envisaged as an independent permanent judicial organ to be established by a multilateral treaty. It would not be a full-time body, but would operate when required, although the possibility that it could remain permanently in session if its caseload so required had not been excluded. The court would be available to States parties to its statute and, in certain situations, to the Security Council. It is intended to complement national criminal justice systems in prosecuting and suppressing crimes of international concern.

Draft statute

The 60-article draft statute of the proposed court provides for a relationship with the UN, either by its becoming a part of the organic structure of the Organization or by a treaty. The Court could only operate effectively if brought into close relationship with the UN for administrative purposes and because part of its jurisdiction would be consequential upon decisions by the Security Council.

The draft contemplated two categories of crimes: those under general international law, such as genocide, aggression, serious violations of the laws and customs applicable in armed conflict (war crimes), and crimes against humanity; and those covered by treaty provisions.

There was general agreement in the Preparatory Committee that the crimes to be prosecuted by the court should be limited to the most serious "core crimes" of international concern --genocide, crimes against humanity and war crimes.

Many emphasized that crimes to be adjudicated must be precisely defined, consistent with the universal legal principles of nullum crimen sine lege (no crime without law) and nullum poene sine lege (no penalty without law).

Several delegations said that the crimes to be considered by the court were the crimes of decision makers and policy planners. The court would be prosecuting widespread and systematic crime, not isolated incidents. Some said that the court's statute must make provision for the prosecution of complicity, conspiracy and attempt.

The prosecution of genocide by the court was a relatively simple matter, most speakers said. A widely accepted definition for that crime could be found in the 1948 Genocide Convention, the provisions of which had become part of customary international law. It was also pointed out that genocide was in the list of crimes within the purview of the tribunals for the former Yugoslavia and for Rwanda. …

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