Observations of Governments on the report of the Working ...tims of armed conflicts (Protocols I and...

A/CN.4/458 and Add.1-8

Observations of Governments on the report of the Working Group on a draft statute for aninternational criminal court

Extract from the Yearbook of the International Law Commission:-

1994

Document:-

vol. II(1),

Topic:Draft code of crimes against the peace and security of mankind (Part II)- including the

draft statute for an international criminal court

Copyright © United Nations

Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm)

DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND

[Agenda item 4]

DOCUMENT A/CN.4/458 and Add. 1-8

Observations of Governments on the report of the Working Groupon a draft statute for an international criminal court

[Original: Arabic, English, French, Russian, Spanish][18 and 28 February, 11, 24 and 25 March, 11, 13 and 17 May,

24 June and 10 August 1994]

CONTENTS

Page

Note 22

Multilateral instruments cited in the present document 22

INTRODUCTION 23

Section

I. OBSERVATIONS RECEIVED FROM MEMBER STATES 24

Algeria 24Australia 25Austria 30Belarus 33Chile 35Cuba 38Cyprus 38Czech Republic 39Denmark* 61Finland* 61Germany 40Hungary 42Iceland* 61Japan 48Kuwait 53Malta 56Mexico 57New Zealand 58Nordic countries 61Norway* 61Panama 66Romania 66Slovenia 67Spain 69Sri Lanka 70Sweden* 61Tunisia 73United Kingdom of Great Britain and Northern Ireland 75United States of America 80Yugoslavia 92

II. OBSERVATIONS RECEIVED FROM A NON-MEMBER STATE 94

Switzerland 94

* The reply submitted jointly by Denmark, Finland, Iceland, Norway and Sweden is reproduced under the heading "Nordiccountries".

21

22 Documents of the forty-sixth session

NOTE

In the present document, the term "1992 Working Group" refers to the Working Group on the question of an inter-national criminal jurisdiction, whose report appears in Yearbook... 1992, vol. II (Part Two), document A/47/10, annex.The term "1993 Working Group" refers to the Working Group on a draft statute for an international criminal court,whose report appears in Yearbook... 1993, vol. II (Part Two), document A/48/10, annex. Comments on the draft statutedrawn up by the 1993 Working Group also appear in that report. The figures in parentheses are the paragraph numbersof the observations that the States concerned submitted regarding the report of the 1992 Working Group and whichappear in Yearbook... 1993, vol. II (Part One), document A/CN.4/452 and Add. 1-3.

Multilateral instruments cited in the present document

Source

Human rights

Convention for the Prevention and Punishment of the United Nations, Treaty Series, vol. 78, p. 277.Crime of Genocide (New York, 9 December 1948)

European Convention on Human Rights (Convention for Ibid., vol. 213, p. 221.the Protection of Human Rights and FundamentalFreedoms) (Rome, 4 November 1950)

European Convention on Extradition (Paris, 13 October Ibid., vol. 359, p. 273.1957)

International Convention on the Elimination of All Ibid., vol. 660, p. 195.Forms of Racial Discrimination (New York,21 December 1965)

International Covenant on Civil and Political Rights Ibid., vol. 999, p. 171.(New York, 16 December 1966)

Convention on the Non-Applicability of Statutory Limi- Ibid., vol. 754, p. 73.tations to War Crimes and Crimes against Humanity(New York, 26 November 1968)

International Convention on the Suppression and Punish- Ibid., vol. 1015, p. 243.ment of the Crime of Apartheid (New York,30 November 1973)

Convention against Torture and Other Cruel, Inhuman or Official Records of the General Assembly, Thirty-ninthDegrading Treatment or Punishment (New York, Session, Supplement No. 51, resolution 39/46, annex.10 December 1984)

Model Treaty on Mutual Assistance in Criminal Matters Ibid., Forty-fifth Session, Supplement No. 49, resolution(New York, 14 December 1990) 45/117, annex.

Privileges and immunities, diplomatic relations

Vienna Convention on Diplomatic Relations (Vienna, United Nations, Treaty Series, vol. 500, p. 95.18 April 1961)

Law applicable in armed conflict

Convention respecting the Laws and Customs of War on J. B. Scott, ed., The Hague Conventions and Declara-Land (The Hague, 18 October 1907) tions of 1899 and 1907, 3rd edition (New York,

Oxford University Press, 1918), p. 100.

Geneva Conventions for the protection of war victims United Nations, Treaty Series, vol. 75, pp. 31 et seq.(Geneva, 12 August 1949)

Protocols additional to the Geneva Conventions of Ibid., vol. 1125, pp. 3 et seq.12 August 1949, and relating to the protection of vic-tims of armed conflicts (Protocols I and II) (Geneva,8 June 1977)

Law of treaties

Vienna Convention on the Law of Treaties (Vienna, Ibid., Treaty Series, vol. 1155, p. 331.23 May 1969)

Draft Code of Crimes against the Peace and Security of Mankind 23

Source

Narcotics and psychotropic substances

United Nations Convention against Illicit Traffic in Nar- Document E/CONF.82/15 and Corr. 1 and 2.cotic Drugs and Psychotropic Substances (Vienna,20 December 1988)

Civil aviation

Convention for the Suppression of Unlawful Acts against United Nations, Treaty Series, vol. 974, p. 177.the Safety of Civil Aviation (Montreal, 23 September1971)

Protocol for the Suppression of Unlawful Acts of Vio- ICAO, document 9518.lence at Airports Serving International Civil Aviation,supplementary to the Convention for the Suppressionof Unlawful Acts against the Safety of Civil Aviation(Montreal, 24 February, 1988)

Introduction

1. At its forty-fifth session, in 1993, the International Law Commission decided thatthe draft articles proposed by the Working Group on a draft statute for an internationalcriminal courtl should be transmitted, through the Secretary-General, to Governments,in order for them to formulate observations on the subject, with a request that theircomments be submitted to the Secretary-General by 15 February 1994.

2. Pursuant to that request, the Secretary-General addressed to Governments a noteverbale dated 6 October 1993 inviting them to submit written comments on the draftarticles by 15 February 1994.

3. Furthermore, the General Assembly, at its forty-eighth session, adopted resolution48/31 of 9 December 1993 entitled "Report of the International Law Commission onthe work of its forty-fifth session", paragraphs 5 and 6 of which read as follows:

["The General Assembly,]

"5. Invites States to submit to the Secretary-General by 15 February 1994, as requested by the Inter-national Law Commission, written comments on the draft articles proposed by the Working Group on adraft statute for an international criminal court;

"6. Requests the International Law Commission to continue its work as a matter of priority on thisquestion with a view to elaborating a draft statute, if possible at its forty-sixth session in 1994, taking intoaccount the views expressed during the debate in the Sixth Committee as well as any written commentsreceived from States."

4. Pursuant to paragraph 5 of resolution 48/31, the Secretary-General addressed anote verbale to Governments dated 4 January 1994, inviting them again to submit theirwritten comments by 15 February 1994.

5. As at 22 July 1994, the Secretary-General had received 22 replies from MemberStates, and one from a non-member State; two additional replies from Member Stateswere received after the close of the session. The texts of the observations are repro-duced in the present volume.

1 Yearbook. . . 1993, vol. II (Part Two), document A/48/10, para. 100, annex, sect. B.2 Ibid., para. 100.


I. Observations received from Member States

Algeria

[Original: French][14 February 1994]

1. Before making some comments on specific aspects ofthe draft statute for an international criminal court pro-posed by the Working Group of the International LawCommission, the Algerian Government wishes to recall,for fear that it may have been forgotten to some extent, thehistorical, logical and legal context in which the questionis being considered.

accordance with its usual working methods, for this draftremains the foundation on which an international criminaljurisdiction would be built. A twofold operation is calledfor, and both aspects of the question should be worked onconcurrently, with the same degree of interest and dili-gence. The ripeness of the topic and the present concernsof the international community provide conditions condu-cive to substantial and fairly rapid progress in bothdirections.

B. Comments on the draft articles

A. Context in which the question is being considered

2. The establishment of an international criminal juris-diction can hardly be separated from the main question,that of the elaboration of a draft code of crimes against thepeace and security of mankind. Historically, the establish-ment of an international criminal jurisdiction has beenenvisaged in order to meet the need for a judicial bodywhich would implement such a code. This choicestemmed from well-founded considerations which retaintheir full relevance and timeliness. While it is true thatwithout a judicial body responsible for implementing andenforcing it, a code would be superfluous, it is also truethat without a prior strict definition of the applicable law,a court would be merely an ineffectual body. What isinvolved here are two inseparable and complementaryaspects of a single undertaking, namely, the punishmentof crimes which, because they are singularly abhorrentand shocking to the world's conscience, cannot but becharacterized as crimes against the peace and security ofmankind.

3. The Algerian Government, which has continuallydeclared its support for the establishment of an interna-tional criminal court, is all the more comfortable in statingthat the establishment of such a court is not an end initself. It has real meaning and scope only if this court isintended to punish acts which the international commu-nity agrees to recognize as crimes against the peace andsecurity of mankind, and which it characterizes as suchand as belonging to the jurisdiction whose establishmentis envisaged.

4. Hence, the fact that the International Law Commis-sion was given a mandate, in paragraph 6 of GeneralAssembly resolution 47/33, of 25 November 1992, toundertake the project for the elaboration of a draft statutefor an international criminal court does not in any waymean that work on the draft Code of Crimes against thePeace and Security of Mankind should be dropped or evenslowed down. As the draft Code has been adopted by theCommission on first reading,1 it would be highly desir-able for the Commission to resume consideration of it in

For the text, see Yearbook. . . 1991, vol. II (Part Two), pp. 94-97.

1. THE NATURE OF THE FUTURE COURT

5. With regard to the nature of the court, the only option,in the view of the Government of Algeria, is a permanentcourt. Algeria cannot share the opinion that an embryonicstructure that would meet sporadically, on an ad hoc basis,could be acceptable. The supporters of such an approachmainly raise considerations of a budgetary nature which,regardless of their importance, cannot be decisive in andof themselves, in view of the stakes involved. Recentinternational events have harshly revealed a lacuna in thestructure of international relations: the absence of aninternational criminal court whose sole existence wouldprobably have helped to defuse serious crisis situations.Clearly, what we have here is a legal vacuum whichshould be filled as soon as possible. One-shot solutionsmay have been found in some cases, especially throughrecourse to ad hoc bodies, but these are mere stopgapmeasures which one cannot make do with indefinitely oradapt as one pleases without a serious risk of dissipationof efforts and fragmentation of the international judicialsystem.

6. Furthermore, a permanent international criminaljurisdiction would have the advantage of ensuring anobjective, uniform and impartial application of interna-tional law, while avoiding the hazards inherent in theestablishment of jurisdictions following the occurrence ofthe reprehensible acts which are to be brought beforethem.

7. Lastly, only permanent international judges are in aposition to place themselves above momentary politicalcontingencies and the inevitable pressures linked to thesensitivity of the cases to be tried. An equal, independentand impartial justice can be ensured only by a permanentcourt composed of magistrates elected in order to try, withfull awareness and in conformity with general and imper-sonal legal norms, the cases referred to them.

2. THE COMPETENCE OF THE FUTURE COURT

8. With regard to the competence of the court, the Alge-rian Government shares the generally accepted view thatthe competence ratione personae should be limited to


individuals. On the other hand, the competence rationemateriae seems unduly restrictive in the draft statute, inthat none of the three alternatives proposed in article 23(Acceptance by States of jurisdiction over crimes listed inarticle 22) meets the need to confer on the court sufficientauthority, an authority commensurate with the task forwhich it is to be established. In Algeria's view, when aState accepts the court's statute, it should, ipso facto,accept the court's competence in regard to all the crimesidentified as belonging to its jurisdiction. Any other solu-tion would, in practice, be tantamount to calling into ques-tion the value of a State's very acceptance of the court'sstatute and making such acceptance meaningless.

Algerian Government believes that it is important for thecourt to be a United Nations body, not only in order toconfer on it the moral authority of the Organization and toensure its universal recognition, but also to give materialexpression to the indivisibility of international law andorder. This would not in any way affect the court's inde-pendence and autonomy. The Statute of the InternationalCourt of Justice provides a cogent example with regard tothe method of election of judges, their status, the auto-matic acceptance of the Statute of the Court by everyMember of the United Nations, and the means by whichcases are brought before the Court.

3. APPLICABLE LAWAustralia

9. With regard to applicable law (a follow-up to the pre-ceding question), the draft statute proposes a formulawhich deserves to be reviewed and supplemented.Article 22 (List of crimes defined by treaties) lists a num-ber of crimes in respect of which the court may have juris-diction on the basis of international conventions in force.This approach raises a number of questions, including thatof the compatibility between the provisions of the court'sstatute and the provisions of these conventions withregard to the application of the "try or extradite" princi-ple, which is the basic principle of the aforesaid conven-tions. A logical application of this principle, as it has beencodified in these conventions, might result, in either sce-nario, in the practical impossibility of bringing a casebefore the court, inasmuch as States, even under theirtreaty obligations, are bound only to try the suspects or toextradite them to another country. An attempt has beenmade in the draft statute to go beyond this basic contradic-tion by establishing a kind of preferential jurisdiction forthe court, but making this dependent solely on the goodwill of States. From this standpoint, the very usefulness ofan international criminal court is called into question, forit can be anticipated that preference for the national juris-diction would quite often prevail.

10. Moreover, the list of crimes in article 22, even assupplemented by the provisions of article 26, is far frombeing exhaustive or satisfactory. It does not include awhole series of crimes (e.g. international terrorism)though they are widely accepted by the international com-munity, and by the Commission itself, as crimes againstthe peace and security of mankind.

11. In view of the foregoing, the only consistentapproach which seems conceivable would be to establishexclusive jurisdiction for the court in respect of a numberof crimes against the peace and security of mankind aspreviously identified in a universal code binding on allStates.

4. RELATIONSHIP TO THE UNITED NATIONS

12. The question of the relationship between the futurecourt and the United Nations has not received as muchattention as it deserves, despite the fundamental impor-tance attached to it in the report of the International LawCommission on the work of its forty-fifth session. The

[Original: English][16 February 1994]

1. The following comments will deal with each of theseven parts of the 1993 Working Group draft on an inter-national criminal tribunal.

PART 1: ESTABLISHMENT AND COMPOSITION OFTHE TRIBUNAL

2. A number of articles in Part 1 raise issues of particu-lar importance.

Article 2 (Relationship of the Tribunal to the UnitedNations)

3. Article 2 contains two alternative texts in squarebrackets. The first states that the tribunal is to be "a judi-cial organ of the United Nations". The second providesthat the tribunal is to be "linked with the United Nationsas provided for in the present Statute".

4. The Working Group's commentary on article 2 notesthat there was disagreement among its members on whattype of relationship the tribunal should have with theUnited Nations. Australia believes that the internationalcriminal tribunal should be part of the United Nations sys-tem, preferably as a subsidiary judicial organ. Australiabelieves this could be achieved pursuant to article 7, para-graph 2, of the Charter of the United Nations. At the veryleast, Australia believes that the tribunal should be linkedwith the United Nations by an agreement analogous tothose concluded with specialized agencies.

Article 4 (Status of the Tribunal)

5. Paragraph 1 provides that the tribunal is to be "a per-manent institution . . . [which will] sit when required toconsider a case submitted to it". This approach accordswith the view Australia expressed in its interventions onthis issue in the Sixth Committee in 1992 and 19931 andin its written comments on the 1992 Working Groupreport.

1 Official Records of the General Assembly, Forty-seventh Session,Sixth Committee, 22nd meeting, paras. 30-38, and ibid., Forty-eighthSession, Sixth Committee, 20th meeting, paras. 53-63.


Article 5 (Organs of the Tribunal)

6. Article 5 establishes the three organs of the tribunal:(a) the Court; (b) the Registry; and (c) the Procuracy. Thisstructure is appropriate and identical to that employed forthe International Criminal Tribunal for the former Yugo-slavia.

Article 9 (Independence of judges)

7. Respect for the independence of judges is vital to theproper functioning of the tribunal. The Working Groupmay wish to list in article 9 examples of activities whichwould interfere with the "judicial functions" of judges or"affect confidence in their independence". For example,paragraph 4 of the commentary on draft article 9 notesthat "it was clearly understood that a judge of the Courtcould not be, at the same time, a member or official of theExecutive Branch of Government".

Article 11 (Disqualification of judges)

8. Paragraph 6 of the Working Group's commentary onthis article notes that it would welcome comments fromthe General Assembly on "whether a limit should beplaced on the number of judges whose disqualification anaccused could request". Setting a limit should not be nec-essary as it is unlikely that an accused could make out thegrounds necessary for disqualifying more than one or twojudges. Establishing a limit may also be seen as preju-dicing the right of an accused to a fair trial before animpartial court.

9. The Working Group also requested comments as tothe quorum required in the event that a judge be disquali-fied. Australia believes that, whether this disqualificationoccurs pursuant to article 11.2 or 11.3, a replacementshould be provided so that the original quorum is main-tained.

Article 13 (Composition, functions and powers of theProcuracy)

10. Paragraph 2 provides for States parties to nominatecandidates for election as prosecutor and deputy prosecu-tor. Unlike draft article 7.2 which limits States parties tonominating one candidate for election as a judge of thecourt, article 13.2 places no such limitation on States par-ties in relation to nominating candidates for prosecutorand deputy prosecutor. It would be best also to limit Statesparties to nominating one candidate each for prosecutorand deputy prosecutor with the requirement that the can-didates put forward would have to be of different nation-ality.

11. Paragraph 4 states that the procuracy is to act inde-pendently. Australia's written comments on the 1992Working Group report expressed support (paras. 58 and59) for an independent prosecutorial system rather thanthe complainant State's conducting prosecutions.

Article 15 (Loss of office)

12. Article 15 establishes the mechanism by whichjudges, the prosecutor, deputy prosecutor and registrarcan be removed from office for misconduct or seriousbreach of the statute. In particular, draft article 15.2 pro-vides that the prosecutor and deputy prosecutor can beremoved by decision of two thirds of the Court. Australiabelieves that empowering the court to dismiss the pros-ecutor or deputy prosecutor threatens the independence ofthe procuracy and might lead to accusations of bias. Amore suitable mechanism would be for the States partiesto decide the question of whether the prosecutor or deputyprosecutor should be removed in any particular case.

Article 19 (Rules of the Tribunal)

Article 20 (Internal rules of the Court)

13. These provisions are akin to article 15 of the Statuteof the International Criminal Tribunal for the FormerYugoslavia,2 which calls for the judges of that tribunal toadopt rules of evidence and procedure. Security Councilresolution 827(1993), by which the Security Counciladopted the statute of the International Tribunal for theformer Yugoslavia, also called on States to provide com-ments on the rules of procedure and evidence of that tri-bunal which would be submitted to the judges for theirconsideration. It would be appropriate to considerwhether a similar mechanism could be created to allowStates parties the opportunity to have an input into themaking of the rules of procedure and evidence for theinternational criminal tribunal.

Article 21 (Review of the Statute)

14. Such a provision would be best placed with the finalclauses of the statute. The article provides for a reviewafter five years at the request of an unspecified number ofStates parties. It will be difficult to set the number ofStates parties necessary to request a review, as the totalnumber of States parties after five years will be hard topredict. Perhaps a better approach would be to set a frac-tion of States parties as the required number, e.g. one thirdor one quarter. It may also be appropriate to allow forsubsequent reviews of the statute.

PART 2: JURISDICTION AND APPLICABLE LAW

15. These provisions lie at the heart of the statute. Thesedraft articles represent an expanded view of what shouldconstitute the subject-matter jurisdiction of the court. Inparagraph 57 of its report, the 1992 Working Groupargued that "the Court's jurisdiction should extend tospecified existing international treaties creating crimes ofan international character". It expressed the view in para-graph 59 that "at the first stage of the establishment of acourt, its jurisdiction should be limited to crimes definedby treaties in force". In its intervention during debate onthis issue in the Sixth Committee at the forty-seventh

S/25704 and Corr.l, annex.


session of the General Assembly,3 Australia noted its gen-eral support for this approach of the Working Group indealing with the subject-matter jurisdiction of a court. Thepresent draft articles now propose that the subject-matterjurisdiction of the court reach beyond treaties in force tocrimes under general international law, certain crimesunder national law which give effect to crime suppressionconventions (e.g. the 1988 United Nations Conventionagainst Illicit Traffic in Narcotic Drugs and PsychotropicSubstances) and crimes referred to the court by the Secu-rity Council in certain cases. This represents a consider-able change of attitude.

Article 22 (List of crimes defined by treaties)

16. Article 22 lists those crimes defined by certain trea-ties which are intended to form the basis of the court'sjurisdiction. The following criteria for inclusion in the listare given in paragraph 2 of the Working Group's com-mentary on draft article 22:

(a) The fact that the crimes are themselves defined by the treaty con-cerned in such a way that an international criminal court could apply abasic treaty law in relation to the crime dealt with in the treaty; and (b)The fact that the treaty created, with regard to the crime therein defined,either a system of universal jurisdiction based on the principle autdedere aut judicare or the possibility that an international criminal tri-bunal try the crime, or both.

17. These criteria represent a filter for determiningwhich crimes and treaties should be included in draftarticle 22. Because they adequately describe the elementsof the crime and establish the principle of aut dedere autjudicare or universal jurisdiction, they largely meet theconcerns expressed by Australia in its written comments(para. 36) on the 1992 Working Group report that:

Consideration will need to be given as to how specific offenceswhich constitute a serious crime of an international character are to bededuced from the wide range of penal norms created by existing con-ventions. The elements of the criteria by which certain conduct definedin existing conventions would come within the jurisdiction of a courtwill need to be identified.

18. As noted in its statement to the Sixth Committee atthe forty-eighth session of the General Assembly,4 Aus-tralia believes that article 22 should not constitute anexhaustive list, and should allow for future expansion. Wenote that, at present, no general procedure has been estab-lished in any other part of the draft which would allow forfuture treaties to be included. This possibility should beexplored. There seems no reason in principle to limit thecourt's jurisdiction in this regard to only those treatiescurrently included in the list.

19. One point remains unclear in relation to this draftarticle. This is whether it is intended that the court canhave jurisdiction over the list of offences contained in thedraft article on the basis that these are "internationalcrimes" as defined by the various conventions (in whichcase the court's jurisdiction would not depend on a State'sbeing a party to the relevant treaty), or whether it isintended that the court will only have jurisdiction in theevent that jurisdiction is conferred upon it by a State

3 See footnote 1 above.4 Official Records of the General Assembly, Forty-eighth Session,

Sixth Committee, 20th meeting, para. 56.

which is a party to a particular convention. Article 23 sug-gests that the former is the proper interpretation, but arti-cle 24 suggests that the latter is the proper interpretation.Moreover, the interrelationship between articles 22, 23and 24 is crucial, but not clear as currently drafted. Unlessclarified, the precise jurisdiction of the court will remaindifficult to ascertain and may well lead to challenges tothe jurisdictional competence of the court in individualcases.

Article 23 (Acceptance by States of jurisdiction overcrimes listed in article 22)

20. Article 23 is intended to provide the mechanism bywhich States can accept the jurisdiction of the court overcrimes listed in article 22. It lists three alternativeapproaches: alternative A, providing for States parties toopt in to the jurisdiction of the court; alternative B, requir-ing States parties to opt out of the court's jurisdiction; andalternative C, providing for a modified version of optingin to the jurisdiction. In paragraph 5 of its commentary,the 1993 Working Group has sought guidance from theGeneral Assembly as to the system to be adopted.

21. In its comments on the 1992 Working Group report,Australia noted (para. 8) the importance of the court'shaving a voluntary jurisdiction whereby a State couldbecome a party to the statute and by separate act acceptthe jurisdiction of the court. An opting-in mechanismwould encourage greater participation in the statute.Alternatives A and C would facilitate this opting-inapproach.

Article 24 (Jurisdiction of the Court in relation to arti-cle 22)

22. Australia agrees with the underlying principle of thepresent article 24 insofar as it takes account of the com-peting jurisdictional claims of States parties. In consider-ing the court's jurisdiction, Australia agrees that, for prac-tical reasons, the emphasis should be placed on the Statein whose territory the accused is found or which otherwisecan establish jurisdiction under the relevant treaty.

23. Australia is unclear as to the proposed scope ofparagraph 2. Is it intended to give the court jurisdiction insituations where the suspect is located in a State which isnot a party to the relevant treaty? As noted above, in ourcomments on article 22, it is unclear whether the court canhave jurisdiction only in those cases in which such juris-diction has been conferred by a State which is a party tothe relevant treaty.

Article 25 (Cases referred to the Court by the SecurityCouncil)

24. Australia has no objection in principle to the idea ofthe Security Council's being able to refer complaints tothe court. However, as currently drafted, the SecurityCouncil would have far greater powers in this regard thanany individual State. On the face of it, article 25 seem-ingly allows the court to hear cases submitted to it by theSecurity Council regardless of whether the requirements


in article 24 have been met. If this is intended to be thecase, it should be clear in the text of article 25.

"prima facie case", as it is termed in article 32, reasonsshould be supplied.

Article 26 (Special acceptance of jurisdiction by States incases not covered by article 22)

25. Australia supports the principle expressed inarticle 26, as noted in Australia's statement to the SixthCommittee at the forty-eighth session of the GeneralAssembly.5

PART 3: INVESTIGATION AND COMMENCEMENTOF PROSECUTION

Article 29 (Complaint)

26. Article 29 accords with the view put forward byAustralia in its written comments (para. 59) on para-graph 122 of the 1992 Working Group report that thepower of complaint to the tribunal should extend to anyState party which has accepted the jurisdiction of thecourt with respect to the offence in question.

27. Australia is uncertain, however, as to which Statesare covered by inclusion in the present draft of the sen-tence "or other State with such jurisdiction and which hasaccepted the jurisdiction of the Court pursuant toarticle 23". Some clarification is requested. Paragraph 3of the commentary at paragraph 1 refers to States initiat-ing complaints in respect of offences at customary inter-national law or municipal law. It may be that this isintended to pick up the provisions of article 26. However,that article confers jurisdiction only in very limited cir-cumstances and does not in general confer jurisdictionover offences at customary international law or municipallaw where these are not also treaty offences. Article 29could also perhaps be more specific in relation to thetypes of supporting documents required to accompany acomplaint.

Article 30 (Investigation and preparation of theindictment)

28. Paragraph 1 provides for the review by the bureau ofthe court of the prosecutor's decision not to proceed witha complaint. This reflects Australia's view expressed in itswritten comments (para. 58) on the 1992 Working Groupreport that there should be scope for review of a prosecu-tor's decision not to prosecute.

Article 31 (Commencement of prosecution)

29. Paragraph 1 provides that "upon a determinationthat there is a sufficient basis to proceed" the Prosecutorshall prepare an indictment. There is no mention of theprosecutor being satisfied that a "prima facie case" existsbefore preparing an indictment, although this is the stan-dard mentioned in article 32 in relation to the courtaffirming an indictment. The meaning of "sufficientbasis" should therefore be explored and, if different from

5 See footnote 1 above.

Article 33 (Notification of the indictment)

30. Article 33 sets down the requirements for notifica-tion of an indictment to States parties and States which arenot party to the statute. It permits the court to seek thecooperation of the latter in the arrest and detention ofaccused persons within their jurisdiction. Given the con-sensual nature of the court's jurisdiction, no greater obli-gation can be placed on States which are not parties to thestatute.

Article 35 (Pre-trial detention or release on bail)

31. Article 35 allows the court to detain an accused incustody or to release him or her on bail. The provision,however, does not set out the criteria the court is to use inmaking this decision. This should be further explored.

PART 4: THE TRIAL

32. Unlike the statute of the International Criminal Tri-bunal for the Former Yugoslavia, the draft statute makesgeneral provision for rules of procedure and evidence.

Article 36 (Place of trial)

33. Paragraph 1 provides for trials to be carried out atthe seat of the tribunal, unless the court decides otherwise.Paragraph 2 provides for the court and a State, which neednot have accepted the jurisdiction of the court or even bea party to the Statute, to reach an arrangement for theexercise by the court of its jurisdiction in the territory ofthe State. A State party, therefore, is not obliged to permitthe court to exercise jurisdiction in its territory. Thisapproach is preferable to that taken in relation to the Inter-national Criminal Tribunal for the Former Yugoslavia,which apparently allows the tribunal to sit in States with-out having to secure the agreement of the State concerned(see paragraph 6 of Security Council resolution827(1993)).

Article 38 (Disputes as to jurisdiction)

34. The commentary to article 38 states two questionson which the 1993 Working Group has invited comments.The first relates to whether all States parties or only thosewith a direct interest in a case should have the right tochallenge the court's jurisdiction. Australia believes thatonly those States with a direct interest in a case should beable to challenge the court's jurisdiction. There is nobenefit in a policy sense to be gained from allowing achallenge by all States parties.

35. The second question is whether pre-trial challengesby the accused as to jurisdiction and/or the sufficiency ofthe indictment should be included in the statute. Australiaconsiders that challenges of this nature should be part ofthe trial process and should take place at the outset of thetrial. In this regard, Australia does not agree with the pro-visions of article 38, paragraph 2 (b).


36. The meaning of the second sentence in paragraph 3is unclear. Once a decision has been made as to jurisdic-tion it should not be subject to further challenge duringthe hearing, irrespective of the identity of the party chal-lenging the jurisdiction. Accordingly, the accused personshould not be able to reopen the question of jurisdictionlater in the trial once it has been adjudicated upon. Ofcourse, jurisdiction may be challenged on appeal.

Article 41 (Principle of legality (nullum crimen sinelege);

37. Article 41 embodies the principle of nullum crimensine lege. This meets the requirement of article 15 of theInternational Covenant on Civil and Political Rightswhich states in paragraph 1, inter alia, that:

No one shall be held guilty of any criminal offence on account of anyact or omission which did not constitute a criminal offence, undernational or international law, at the time when it was committed.

The words contained in square brackets in subparagraph(a) should be retained without the brackets to make itclear that a given treaty provision must have been madeapplicable to the accused by whatever mechanisms differ-ent States may adopt.

Article 44 (Rights of the accused)

38. Paragraph (1) (h) appears to allow for the trial of aperson in absentia. The 1993 Working Group has soughtcomment on this point. Australia is, as a general principle,opposed to trials in absentia and would prefer that thestatute not allow for them. On this matter we refer toarticle 14, paragraph 3 (d) of the International Covenanton Civil and Political Rights, which provides that anaccused person is entitled to be tried in his or her pres-ence.

39. We note further that the present draft does not con-tain any procedural safeguards in the event that trials maybe held in absentia. These issues need to be canvassed.

Article 45 (Double jeopardy (non bis in idem);

40. Paragraph 2 (a) would allow the court to try a per-son who has been convicted by another court where theact in question "was characterized as an ordinary crime".The issue arises as to whether the principle of non bis inidem is being adhered to when the court can try a personagain who has been properly tried by a national courtsolely on the ground that the offence concerned was char-acterized as an ordinary crime.

Article 47 (Powers of the Court)

41. Paragraph 1 (a) empowers the court to "require theattendance and testimony of witnesses". As drafted, theattendance of witnesses from any State party may berequired, even if that State party is not otherwise involvedin the action. The point should be made that, if adopted,this procedure would differ substantially from that usuallyfollowed where States may request assistance from otherStates in seeking the presence of witnesses, but wheresuch presence is not compulsory.

42. The statute does not at present address the moremundane issues connected with this power, such as whois responsible for expenses of witnesses. Presumablythese will be addressed, perhaps in the rules of court thatwill no doubt be developed.

Article 51 (Judgement)

43. Paragraph 2 provides that only a single judgementor opinion is to be issued. The prohibition on dissentingjudgements is easier to accept in the context of a prelimi-nary trial than it is in the determination of appeals (seecomment on article 56 below).

Article 53 (Applicable penalties)

44. Paragraph 3 provides for the court to make ordersrelating to the proceeds of a crime but does not provide amechanism for enforceability. That mechanism seems tobe provided by article 65 which requires States parties torecognize and give effect to judgements of the court.These two provisions thus need to be read together.

PART 5: APPEAL AND REVIEW

Article 55 (Appeal against judgement or sentence)

45. Article 55 provides for the accused to have the rightof appeal with the right of the prosecutor to appealinserted in square brackets. Provision should be made forthe prosecutor to appeal the decision of a trial chamber toensure that the acquittal of an accused is not legallyflawed or based on errors of fact. This accords withnational procedures the world over.

Article 56 (Proceedings on appeal)

46. Article 56 does not expressly provide for dissentingor separate opinions to the decision of the appeals cham-ber. Although views on this point will vary according tothe legal traditions of the commentator, Australia's com-mon-law heritage would dispose it to support provisionfor dissenting opinions.

47. The commentary on article 56 also reveals a differ-ence of views in the 1993 Working Group as to whetherthere should be a separate and distinct appeals chamberakin to the one established by article 11 of the Statute ofthe international tribunal for crimes in the former Yugo-slavia. A separate appeals chamber may be preferable, butthe final position will no doubt be determined by the num-ber of judges constituting the court and the expected case-load.

PART 6: INTERNATIONAL COOPERATION ANDJUDICIAL ASSISTANCE

Article 58 (International cooperation and judicial assis-tance)

48. Paragraph 1 places a general obligation on all Statesparties, whether or not they have accepted the court's


jurisdiction, to cooperate with the tribunal "in connectionwith criminal investigations relating to, and proceedingsbrought in respect of, crimes within the Court's jurisdic-tion".

49. Paragraph 2 places more onerous obligations onthose States parties which have accepted the jurisdictionof the court, including the surrender of an accused to thetribunal in accordance with draft article 63. The WorkingGroup might consider a more detailed list of the types ofassistance a State party can be called on to provide underarticle 58, paragraph 2. At the same time some guidancemight be given as to what constitutes cooperation underparagraph 1.

Article 61 (Communications and contents of documenta-tion)

50. Article 61 is based on article 5 of the United NationsModel Treaty on Mutual Assistance in Criminal Matters.6

The Working Group's use of articles from the UnitedNations model mutual assistance and extradition treatiesas precedents for provisions in the draft statute is sup-ported.

Article 63 (Surrender of an accused person to the Tribu-nal)

51. Paragraph 3 obliges States parties which haveaccepted the court's jurisdiction to surrender the accusedperson to the tribunal. This may be seen as cutting acrossgenerally accepted rules of extradition law where Statesretain the discretion not to extradite the person subject tothe request. However, as regards the tribunal it may beargued that, by specifically consenting to jurisdiction,States have already agreed to the tribunal hearing the caseand have given up the right not to hand over the accusedperson. The situation may therefore be distinguished frommere requests for extradition where no prior consent hasbeen given to the exercise of jurisdiction by the courts ofa foreign country and where, accordingly, it is entirelyappropriate that the requested State retains the discretionnot to extradite.

Article 64 (Rule of speciality)

52. This rule is a key provision in extradition treatiesand its inclusion in the draft statute is essential.

PART 7: ENFORCEMENT OF SENTENCES

Article 66 (Enforcement of sentences)

53. Paragraph 1 requests States parties to offer facilitiesfor imprisonment. This approach is acceptable. Statesshould not be forced to accept prisoners. The housing ofprisoners can present particular difficulties for countries,such as Australia, which have a federal system in whicheach of the individual state governments run prisons andthere are no federal prisons.

General Assembly resolution 45/117 of 14 December 1990, annex.

Austria

[Original: English][20 June 1994}


1. Article 2 provides two alternatives for the relation-ship of the tribunal to the United Nations. As desirable asit may be to institute the tribunal as a judicial subsidiaryorgan of the United Nations, Austria believes that theestablishment of a separate institution is more realistic inview of the fact that otherwise a Charter amendment pro-viding the tribunal as a judicial organ of theUnited Nations could be deemed necessary. Neverthelessit is inevitable to ensure a formal linkage to theUnited Nations system.


2. Austria welcomes the provisions that the tribunalshould sit only when required to consider a case. Austriadoes not share the view that such a concept is incompat-ible with the necessary stability and independence of thetribunal.


3. Austria believes that article 5 should not be under-stood as giving the tribunal the right to give directions tothe procuracy.

Article 7 (Election of judges)

4. The 1993 Working Group's commentary on article 7notes that there was agreement to consider a sort oftrade-off for the prohibition of the re-election of judges.Austria has no objection to the establishment of a shorterperiod for the term of office in connection with theadmissibility of re-election. One can hardly envision anobjective reason justifying a different term of office of thejudges as compared with that of the prosecutors asprovided in article 13, paragraph 2. Taking into accountthe need for balance of power of the tribunal's organs, are-election of judges could be envisaged.


Article 10 (Election and functions of President andVice-President)

5. Changing the order of articles 9 and 10 should beconsidered for systematic reasons. The 1993 WorkingGroup's commentary on article 10 notes that some mem-bers of the Working Group argued strongly that the courtshould have a full-time president. However, Austria seesno necessity to provide for a full-time presidency.



6. The wording of paragraph 1 " . . . in which they havepreviously been involved . . ." could be interpreted asincluding actions according to article 52 (Determinationof the sentence) and article 57 (Revision), which shoulddefinitely not lead to disqualification. It could be consid-ered that the decision of disqualification should restdirectly with the President. Austria believes that limitingthe numbers of judges whose disqualification an accusedis entitled to request is inappropriate in the case where thedisqualification of judges beyond the proposed numberseems to be justified. Provisions for such a limitationmight be seen as prejudging the right of an accused to afair trial before an impartial court.


12. The list of crimes defined by treaties as enumeratedin article 22 meets in general with our approval. Austriashares the view of members of the Working Group that thecrime of torture as defined in the Convention against Tor-ture and Other Cruel, Inhuman or Degrading Treatment orPunishment, should be included. Furthermore Austriabelieves that article 22 should not be exhaustive andshould envisage the possibility that new treaties definecrimes falling under the competence of the court.



7. It seems appropriate to include a provision similar toarticle 7, paragraphs 3 and 4 to ensure the independenceof the Procuracy. The provision contained in article 13,paragraph 4, namely, that the prosecutor can neither besubject to instructions of the Tribunal nor give instruc-tions, is of primary importance. Nevertheless the use ofthe term "Tribunal" in this context seems inappropriate,since it cannot be envisaged how the tribunal as suchcould give instructions unless it is through the court or theregistry. Paragraph 7 states that the prosecutor shall notact in relation to a complaint involving a person of thesame nationality. However, additional reasons for dis-qualification, e.g. accusation of bias, former involvementas judge, should also be foreseen in this respect.


8. Austria expresses reservations concerning the provi-sion that the prosecutor can be removed by an organ dif-ferent from that which had elected him.

Article 16 (Privileges and immunities)

9. It is Austria's view that the different treatment ofjudges and prosecutors concerning privileges and immu-nities seems to be unfounded.



10. Austria shares the view that a distinction should bemade between the tribunal's rules of procedure and theinternal rules of the court.

13. Austria clearly prefers alternative B providing anautomatic conferral of jurisdiction over the crimes listedin article 22 to the court combined with an opting out sys-tem. However, alternative B should be amended to theeffect that non-member States are entitled to accept thejurisdiction of the court by declaration as provided inalternative B.

Article 24 (Jurisdiction of the Court in relation toarticle 22)

14. In the light of its former commentary, Austria holdsthe view that the requirement of both conditions in orderto accept the court's jurisdiction ratione personae, as laiddown in article 24, paragraph 2, could weaken the effec-tiveness of the judicial system. It should therefore berestricted to one act of acceptance.


15. The wording of article 25 leaves it open whether theSecurity Council may refer cases to the court whose juris-diction States have not accepted or whether this possibil-ity is excluded.

Article 28 (Applicable law)

16. Article 28 paragraph (c) should clarify whichnational law shall be the subsidiary source, e.g. nationallaw where the crime has been committed, or the law of theState of which the accused, or respectively the victim, is anational.



11. Austria welcomes the provisions laid down in para-graph (b), which provide for a basis for incorporating newconventions into the scope of the court's jurisdiction.

17. Austria prefers that only the Security Council andmember States of the tribunal shall have the right to insti-tute proceedings. This would encourage States to becomeparty to the statute. Austria welcomes the suggestion byone member of the Working Group to establish an indict-ment chamber consisting of three judges.


Article 30 (Investigation and preparation of the indict-ment)

18. In the light of the tribunal's objective to guaranteean independent and impartial jurisdiction, Austriaexpresses her reservations concerning the competence ofthe bureau, consisting of the president and vice-presidentof the court, to review decisions of the prosecutor. How-ever, Austria shares the view that in cases of completelyunreasoned complaints investigations should not be initi-ated.

It could also be considered to grant the accused the rightto challenge the jurisdiction immediately after the notifi-cation of the indictment. By such provision the principalprocedural rights of the accused are seen not to be affectedsince the accused is to be informed and provided with allthe documents according to article 33, paragraph 1, intime to enable him to decide upon a possible challenge ofjurisdiction even before the commencement of the trial.Austria suggests reconsideration as to whether the chal-lenge should rest with the proposed indictment chamber(see commentary on article 29).


19. The commentary of the Working Group onarticle 31 states that a person may be arrested or detainedunder the statute, while the indictment is still in prepara-tion, on the basis of a preliminary determination that thereare sufficient grounds for the charges and a risk that theperson's presence at the trial cannot otherwise be assured.It could be envisaged that the justifications for arrest beenlarged to include the case of danger of collusion ordanger of recurrence.

Article 32 (The indictment)

20. Austria believes that the examination of the indict-ment should not rest with the bureau but with a separate"indictment chamber" (see commentary on article 29).Such a provision would also avoid the impression of biasconcerning the president or vice-president who are mem-bers of the bureau, if they are involved in cases of appeal.


21. In view of the fact that the objective of paragraphs 2and 3 consists in international cooperation and legal assis-tance, Austria believes that a reference clause to arti-cle 58, paragraphs 1 and 2, subparagraphs b and c shouldbe inserted. Accordingly, article 33, paragraph 4, couldrefer to article 59. As to paragraph 5, a substitution fornotification by other appropriate means could be envis-aged (e.g. public notification).

Article 37 (Establishment of Chambers)

22. With regard to the 1993 Working Group's commen-tary on draft article 37, Austria shares the view of somemembers that the membership of the Chambers should beprefixed on an annual basis and should follow the princi-ple of rotation according to the rule of a due process oflaw.


23. Austria believes that only States with an objectiveinterest in a case should have the right to challenge thecourt's jurisdiction. Both the State concerned as well asthe accused person should possess the right to challengethe jurisdiction of the court. To exercise this right shouldbe permitted before or at the commencement of the trial.

Article 39 (Duty of the Chamber)

24. Austria believes that the prosecutor should read theindictment at the commencement of the trial. Otherwisethe impression of an identity of court and procuracy couldarise.

Article 41 (Principle of legality (nullum crimen sinelege)j

25. Austria believes that the text within square bracketsin subparagraph a is not sufficiently appropriate to laydown precise and clear definitions; this text should there-fore be deleted.


26. Austria shares the view of some members of theWorking Group that in situations as laid down underparagraph 3 (b) and (c) of the Working Group's commen-tary on article 44, the possibility of holding trials inabsentia seems to be appropriate. However, clearer andmore precise provisions for a case of trial in absentiaseem necessary. Austria also shares the view that in casesof trials in absentia the judgments should be provisionalin the sense that if the accused appears before the court ata later stage then a new trial shall be conducted in thepresence of the accused.

Article 45 (Double jeopardy (non bis in idem),)

27. It can be deduced only from the Working Group'scommentary on article 45 that the principle of non bis inidem is solely applicable in cases of jurisdiction on themerits. Austria believes that the text of draft article 45should be reformulated so as to state more clearly that thisprinciple applies only in these cases and that this article istherefore not applicable with respect to a quashing of pro-ceedings or a judgment of acquittal for formal reasons.


28. Austria shares the view of the Working Group laiddown in the commentary on article 47 that a complete andaccurate recording of the trial proceedings is of greatimportance for the accused or the prosecutor in cases ofappeal or revision. Therefore, Austria considers it neces-sary that the records should be transmitted to these per-sons. It could also be considered whether a provision


should be added which grants the aforementionedpersons a right to receive a copy of the records.

Article 48 (Evidence)

29. In Austria's view it would be preferable that thecompetence to decide on forced testimony and perjuryshould rest with the court.


30. Austria joins the view of some members, expressedin the Working Group's commentary on article 51, thatdissenting and separate opinions should not be allowed.

Article 52 (Sentencing)

31. Austria believes that the formula provided for inarticle 51, paragraph 2 should also be laid down inarticle 52.

Article 53 (Applicablepenalties)

32. It should be taken into consideration whether thecourt may oblige the convicted person to bear the costs ofthe trial. Austria does not object to the court's right toreturn stolen property to the rightful owner.


33. As regards the right of the prosecutor to appeal,Austria believes that this right should be brought into con-formity with the right of appeal of the accused. A limita-tion of the prosecutor's rights of appeal does not seemjustified.


34. Austria believes that the rule laid down in article 51,paragraph 2 should also be incorporated in article 56.Austria questions the role of the bureau in nominating theAppeal Chamber. She shares the view expressed inparagraph 5 of the Working Group's commentary onarticle 56 that there should be a separate and distinctAppeal Chamber. Consideration could be given toentitling the plenary, except the judges involved in thelower court decision, to constitute an Appeal Chamber.

Article 58 (International cooperation and judicialassistance)

35. Austria proposed that States should be required tostate their reasons when requests for international judicialassistance are declined or delayed (see art. 4, para. 5 ofthe Model Treaty on Mutual Assistance and CriminalMatters.1

Article 61 (Communication and contents of documenta-tion)

36. Austria suggests that the following formula beadded to paragraph 3 as a general clause:

"(/) such other information as is necessary for theproper execution of the request".

(See also art. 5, para. 1 (g) of the Model Treaty on MutualAssistance in Criminal Matters)

Article 62 (Provisional measures)

37. Paragraphs a and b could be supplemented by thefollowing wording:

"pending the transmittal of a formal request underarticle 58, paragraph 2, subparagraph d".

38. Furthermore, Austria believes that this articleshould indicate which content a request should include.

Article 63 (Surrender of an accused person to theTribunal)

39. In Austria's view the wording of article 63 could bemisunderstood in so far as the use of the expression"extradition" (para. 5) induces the application of a formalextradition procedure. In this case a national court wouldhave to decide on the unlawfulness of the extraditionaccording to its own rules (e.g. relating to the politicalnature of the crime). This consequence should be avoided.

Article 67 (Pardon, parole and commutation of sentences)

40. The system provided in paragraph 4 should be thenorm so that the establishment of a Chamber solely forthis purpose could be avoided.

Belarus

[Original: Russian][18 February 1994]

GENERAL COMMENTS

1. The competent bodies of the Republic of Belarus(Ministry of Justice and other departments), further totheir observations on the question of an internationalcriminal jurisdiction, submit the following comments onthe report of the Working Group on a draft statute for aninternational criminal court.1

2. Belarus notes with satisfaction the results achievedby the Working Group in 1993 and points out that the ideaof an international criminal court, as set forth in thereport, has become much more clearly defined. Positivetrends can be identified in the process of creating the pro-

General Assembly resolution 45/117 of 14 December 1990, annex.

1 Yearbook. .. 1993, vol. II (Part One), pp. 135 et seq., document A/CN.4/452 and Add. 1-3, particularly pp. 144 et seq.


posed body and organizing its work. While many of thesetrends are deserving of support, some are in need of cor-rection and further discussion.

SPECIFIC OBSERVATIONS

3. As to the establishment and composition of the court(part 1 of the draft statute), it is necessary to pause to con-sider the question of the relationship between the courtand the United Nations. As pointed out earlier in ourobservations on the Working Group's 1992 report, closeinteraction between the international criminal court andthe United Nations is a precondition for the court's effec-tiveness. In view of the fact that the basic channel for thatinteraction will be between the court and the SecurityCouncil (the appropriate changes being made in the char-acter of the court), the interaction between the UnitedNations and the International Atomic Energy Agencycould serve as a model for the relationship. This presup-poses that the court will have close ties to the UnitedNations, without being a United Nations organ.

4. Extremely important questions are being raised withrespect to the jurisdiction of the established body. A wel-come development in that connection is the inclusion ofalternative B in article 23 (Acceptance by States of juris-diction over crimes listed in article 22), for it most closelyapproximates the proposed merging of two juridical acts:becoming a party to the statute and recognizing the court'sjurisdiction. In this way, a State, by becoming a party tothe statute, will automatically confer jurisdiction on thecourt over the crimes listed in article 22 (List of crimesdefined by treaties). Obviously, as a first step, it will benecessary to grant States the right to exclude some crimesfrom such jurisdiction—once again, immediately onbecoming parties to the statute. However, we are firmlyconvinced that such a right should not be unrestricted. Inaddition to the above-mentioned right, it will be necessaryinitially to reinforce the statute by including a limitednumber of the most serious and generally recognizedinternational crimes, in respect of which it will be impos-sible for a State to reject the court's jurisdiction and stillbecome a party to the statute. This will make it possible tocreate immediately a certain sphere of concurrent juris-diction in relation to all States parties to the statute, and toexpand that jurisdiction gradually over time.

5. Exclusive jurisdiction might be established over thatlimited number of crimes, since such jurisdiction deriveslogically from the nature of international crimes. In addi-tion, the statute could leave room for a sphere of exclusivejurisdiction of the court for individual States, through dec-larations or agreements with the court.

6. In connection with paragraph 2 (a) of article 26 (Spe-cial acceptance of jurisdiction by States in cases not cov-ered by article 22), it is worth noting that a certain limitednumber of crimes under general international law(aggression and genocide, in the case of States not partiesto the Convention on the Prevention and Punishment ofthe Crime of Genocide), where they fall within the sphereof exclusive jurisdiction of the court, will not require spe-cial consent in accordance with paragraph 1 of that article.This presupposes that definitions of such crimes will bepresent in the statute itself or in the protocols thereto.

7. As envisaged, with respect to the crimes specified inparagraph 2 (a) of article 26, special consent to jurisdic-tion is required from the same States which are referred toin article 24 (Jurisdiction of the Court in relation to article22), the only difference in this case being that the basis forthe jurisdiction derives not from a norm of an interna-tional treaty, but rather from a norm of international lawwhich has been accepted and recognized by the interna-tional community of States as a whole. Accordingly, theprovision in paragraph 3 (a) of article 26 needs to bereformulated.

8. Attention should also be given to the fact that theinclusion of the contents of paragraph 2 (a) of article 26in article 25, which is discussed in paragraph 4 of thecommentary to article 26, would lead to a change in themeaning of the current paragraph 2 (a). It is hardly worth-while to make the referral of a case relating to crimesunder general international law other than aggressioncontingent on a decision of the Security Council.

9. In connection with the determination of the jurisdic-tion of the court ratione materiae, a question is oftenraised about the relationship between the existing regimeof universal jurisdiction under international treaties inforce and the international jurisdiction that is being cre-ated. There is no doubt that it is possible to replace thefirst regime with the second (or to alter the first regime) inrelations between States parties to the statute (see theVienna Convention on the Law of Treaties, art. 30,para. 4). However, questions may be raised regardingStates not parties to the statute that are parties to such trea-ties and have jurisdiction over an international crime thatis subject to the jurisdiction of the court. In the draft stat-ute, the proposed solution to this problem is based on thetheory of "concessional jurisdiction". This theory,although very interesting, is hardly applicable to interna-tional crimes.

10. International crimes form a separate category ininternational law on the basis of general agreementamong all members of the international community, andjurisdiction in respect of such crimes always derives froma treaty. It is specifically from an international treaty thatthe jurisdiction of an individual State, with regard to actsrecognized by it as international crimes, derives; and it isfrom a treaty that the jurisdiction of the court will deriveas well. However, in respect of international crimes thejurisdiction of an international body would be more inkeeping with the nature of such crimes than the jurisdic-tion of any individual State. For that reason, it is justifi-able to give priority to the statute over other internationaltreaties.

11. In any case, bringing a suspect before the interna-tional court, despite a request for extradition by a Statethat is not a party to the statute but a party to the relevanttreaty, could not be considered a violation of the treaty-law principle of "try or extradite". The obligation "to try"should not be understood in a literal sense. Its purpose isto ensure that offenders are brought to justice and pros-ecuted effectively. This obligation will be met if they arehanded over to the court in accordance with all proceduresfor the protection of their right to due process.


12. The procedures for initiating prosecution by thecourt, as set forth in article 29 of the draft statute, aredeserving of support. However, as to the authority to dis-miss a case, the right to decide should belong not to theprosecutor but to the court, which should have an oppor-tunity for subsequent review of the prosecutor's deci-sions. The outcome of such extremely serious cases aswill be before the court should never be allowed to rest onthe decisions of one man.

13. In regard to the initiation of investigations, weshould like to repeat once again the proposal to conductinvestigations through an independent body instead ofthrough the prosecutor's office. Accordingly, the func-tions of the prosecutor's office would be curtailed and hisstaff reduced. As envisaged, this proposal—which repre-sents a third alternative to the proposal made in the Com-mission to establish an investigative panel of judges, andto the assignment of investigative functions to the pros-ecutor's office—is the most acceptable solution. If thisproposal is adopted, article 30 will have to be divided intotwo parts: one part entitled "Investigation" and the otherentitled "Preparation of the indictment". The structure ofthe new body will also have to be altered.

14. In the light of the foregoing, it is essential that para-graph 2 of article 32 (The indictment) should provide amechanism by which the prosecutor would be able to sub-mit to the bureau for examination (or to the indictmentchamber referred to in paragraph 6 of the commentary onarticle 29) not only the indictment, but also a report, if theevidence in the case justified dismissal.

15. In connection with article 38 of the draft statute(Disputes as to jurisdiction), it seems necessary toenhance the right of all States having jurisdiction over aspecific crime to challenge the jurisdiction of the court. Itwould be logical to link closely the category of States hav-ing the right to initiate proceedings before the court andthe category of States having the right to challenge thejurisdiction of the court.

16. It seems acceptable that the accused should be guar-anteed an opportunity under the draft statute to bring pre-liminary challenges to the jurisdiction of the court. By allappearances, the establishment of a special indictmentchamber, which would also be able to investigate the basisfor an indictment or the report of the prosecutor request-ing dismissal of a case, is an appropriate measure.

17. Objections may be raised to the inclusion of thewords in square brackets in subparagraph (a) of article 41(Principle of legality {nullum crimen sine lege)). Here, itis necessary to start from the premise that, in the case ofinternational crimes, individual criminal responsibilitystems directly from norms of international law.

18. With regard to the establishment of a system ofappeal against judgement or sentence (art. 55), the grant-ing of the right of appeal to the prosecutor as well as to theconvicted person might merit support, since that would beconsistent with the functions of indictment and with theappeals procedure in criminal proceedings. In order forthe appeals process to take into account the particular fea-tures of the court, it would be useful to have appeals con-sidered by the full court, with the exception of judges whoparticipated in the decisions at first instance.

19. Likewise, provision should be made for the right ofthe convicted person (and also the prosecutor) to petitionfor revision of a decision of the court (art. 57).

20. Furthermore, with regard to earlier comments con-cerning the jurisdiction of the court ratione matehae, theprovision in paragraph 4 of article 63 (Surrender of anaccused person to the Tribunal) merits support. In addi-tion to that provision, it would be useful to specify moreprecisely the priority status of requests for the surrenderof an accused person. This could be accomplished bydeleting the phrase "as far as possible" from paragraph 5.In any case, the rule regarding priority should be appliedunconditionally in cases involving the surrender of per-sons accused of crimes within the sphere of exclusivejurisdiction of the court. It would be desirable to resolvein article 63 the question of the failure to surrender anaccused person to the court, in violation of the provisionsof the Statute. In such situations, the court should begranted the right to request the Security Council to obtainthe surrender of the accused person.

21. There is a need to define how the rule of specialty(art. 64) would apply, depending on the crimes involved;for crimes falling under the exclusive jurisdiction of thecourt, it would not be necessary to apply this rule.

22. As presented, the provision of paragraph 4 ofarticle 67 (Pardon, parole and commutation of sentences)would prevent effective monitoring of the execution ofsentences. The settlement of all questions relating to par-don, parole and/or commutation of sentences should beperformed exclusively by the court itself.

23. The Republic of Belarus hopes that these commentswill help the International Law Commission to completeits work on the draft statute for an international criminalcourt. The Republic of Belarus reserves the right to stateits position on the draft statute ultimately prepared by theCommission.

Chile

[Original: Spanish][22 March 1994]

GENERAL COMMENTS

1. The creation of an international criminal court hasbeen, and continues to be, firmly supported by Chile as ameans of ensuring that the perpetrators of serious interna-tional crimes, and other persons involved, do not remainunpunished. Our country has put forward a number ofbasic approaches for the consideration of the draft statutenow being studied.

I. CREATION OF THE TRIBUNAL

2. The creation of an international criminal tribunalshould be approached as an issue independent of the Codeof Crimes against the Peace and Security of Mankind; thisis the only means of ensuring the timely approval of bothlegal issues, notwithstanding their close interconnection.


3. In this respect, the draft is consistent with the positionof the Government of Chile, the basis of which is thatseparate treatment of the statute of the tribunal and of thecode of crimes is desirable both for methodological andfor political reasons, the purpose being to further interna-tional criminal law and to facilitate the participation ofmore States both in the proposed code and in a possibleinternational criminal jurisdiction. The above is withoutprejudice to the extension of the competence of the tribu-nal, once the code has been approved and has entered intoforce, to cover the international crimes identified in thatinstrument.

4. With that in mind, it is necessary to deal with theissue of the relationship between the Code and variousmultilateral conventions, given the possibility of the over-lapping or duplication of definitions of criminal offences,the omission of aspects of a previously defined categoryof crimes or a reduction in their scope.

5. The creation of the international criminal tribunalmust not imply that States are relieved of their obligationto try persons accused of crimes against internationalpeace and security or to grant their extradition.

6. Chile is a party to several international instrumentswhich envisage a universal system of jurisdiction basedon the obligation of States to try persons accused of inter-national crimes or to grant their extradition. From thisstandpoint, the establishment of an international tribunalcannot mean that the State would find itself obliged torenounce its exercise of jurisdiction by virtue of the prin-ciple stated above, since it is not intended that the Statuteshould embody a principle of preferential jurisdiction thatwould prevail over that of national courts.

II. COMPETENCE OF THE TRIBUNAL

7. The competence of the tribunal with which we areconcerned should be subsidiary to that exercised bynational courts. International criminal jurisdiction should,therefore, as a general rule, come into play only in theabsence of national jurisdiction.

8. Chile, like the draft statute, sees the tribunal as ameans at the disposal of the States party, other States andthe Security Council, to guarantee greater justice and toensure that serious crimes do not go unpunished. Thus,the regime established by the statute should be understoodas being complementary to the regime based on the optionof bringing to trial or granting extradition; the option ofreferring the case to the international tribunal would beseen as a third alternative for States, which must be enti-tled to exercise their jurisdiction with respect to a par-ticular crime under either a multilateral treaty, customarylaw or their national law. This does not preclude, and itshould be so provided in the statute, the exclusive and solecompetence of the international tribunal with respect tocrimes of particular gravity such as genocide where thereis no State in a position to try the criminals.

9. Moreover, as our country has stated on previousoccasions, the international tribunal would in no circum-stances be able to exercise jurisdiction as a court of appealor court of second instance in relation to decisions ofnational courts; in addition to causing constitutional prob-

lems for many States, that would imply an interference intheir internal affairs.

10. For the foregoing reasons, the Government of Chileenters its reservation with respect to the provision inarticle 45, paragraph 2 (b) (Double jeopardy (Non bis inidem)), which, in certain circumstances, would allow areview of the judgements of national courts. Indeed, it isnecessary to deal more thoroughly with the question ofwhen national courts are to be regarded as having failedto perform their function of hearing and trying interna-tional crimes, thereby entitling the international criminaltribunal to intervene.

11. The jurisdictional body should be created by a treatywithin the framework of the United Nations. This isanother of the approaches previously put forward by ourcountry. Chile shares the view, which has also beenexpressed by other States, that it would be desirable forthere to be at least some relationship between the tribunaland the United Nations, not only on account of the author-ity and permanence that would confer on the tribunal butalso because the competence of the court might depend inpart on decisions of the Security Council. For this reasonthe Government of Chile tends to favour a solutioninvolving the conclusion of a treaty of cooperation similarto those concluded between the United Nations and itsspecialized agencies, which would set out the obligationsand functions of the organs of the United Nations in rela-tion to the satisfactory and normal development of thefunctions of a tribunal.

12. The tribunal should also be or establish a standingmechanism enabling the judges participating in it to meetwithout delay when they are convened.

13. With respect to the structure of the tribunal, Chileagrees with the draft to the extent that it seeks a solutioncharacterized by flexibility and economy by creating nota standing full-time body, but a mechanism which wouldenable the judges to meet without delay for the cases forwhich they are convened. Thus, the draft statute envisagesa pre-existing mechanism which comes into operationonly when needed and whose composition, in each spe-cific situation, would be determined by objective criteriaensuring the impartiality of the members of the tribunal.

14. From that point of view, the Government of Chileconsiders that the provision of article 15 (Loss of office),paragraph 2, which empowers the court to remove theprosecutor and deputy prosecutor from office, impairs theindependence of the tribunal: where they have been foundguilty of proven misconduct or a serious breach of thestatute, the power to do so should be vested in those whohave authority to appoint them, namely the States partiesto the statute. Similarly, there is no apparent reason for thequorum required to deprive a judge of the court of hisoffice, as provided in article 15, paragraph 1, of the draft,and for not maintaining the criterion established inarticle 15 of the Statute of the International Court of Jus-tice which does not accept the dismissal of a judge unless,in the unanimous opinion of the other members of theCourt, he has ceased to fulfil the required conditions.

15. The tribunal with which we are concerned shouldhave mandatory jurisdiction with respect to the most seri-ous and far-reaching crimes in which humanity as a whole


may be regarded as being a victim as in the case of geno-cide. In other cases, jurisdiction should be optional.

16. In relation to jurisdiction, the Government of Chilefavours a formula whereby States, merely by virtue of thefact of being party to the tribunal's statute, acknowledgeits authority to hear and try cases, subject to the excep-tions established by each sovereign State ratione materiaeand/or ratione temporis.

17. Without prejudice to the foregoing, in the case of themost serious and far-reaching crimes in which humanityas a whole may be regarded as being the victim, as in thecase of genocide and crimes of war and aggression, thejurisdiction of the tribunal should be mandatory, subjectto the determination of the Security Council. From thispoint of view, Chile inclines towards alternative B of arti-cle 23 (Acceptance by States of jurisdiction over crimeslisted in article 22), with the appropriate amendments inrelation to mandatory jurisdiction.

18. In relation to the questions contained in the com-mentary to article 38 (Disputes as to jurisdiction), theGovernment of Chile states that the solution must befound by distinguishing between situations relating tointernational crimes characterized in a treaty, and othercases. With respect to the former, any State party to thestatute would have the right to challenge jurisdiction. Inother cases, only the State or States with a direct interestin the matter would have that right. Our country considersthat the accused should also have the right to challengethe jurisdiction of the tribunal, but that this right should beraised as a preliminary issue when cognizance is taken ofthe charge in question.

19. The international tribunal should also have advisoryjurisdiction in order to assist national courts in the inter-pretation of treaties relating to international crimes. Thedraft does not consider the possibility that the interna-tional tribunal might have advisory jurisdiction at therequest of the States party to the statute. In that connec-tion, the Government of Chile emphasizes the importanceof the proposal whereby assistance would be given tonational courts in the correct application and interpreta-tion of those international instruments that define crimeswhich may be heard by such national courts. On this mat-ter, our country considers that the experience of the advi-sory jurisdiction of the International Court of Justice andof the Inter-American Court of Human Rights has beenvery positive.

III. APPLICABLE LAW

20. The offences that should be dealt with by the tribu-nal would be those characterized by international treaties.

21. With regard to the law that would be applicable bythe tribunal, and in accordance with the principle ofnullum crimen sine lege, the Government of Chile consid-ers that the tribunal should only be able to deal withoffences defined in widely accepted international instru-ments such as those mentioned in article 22 (List ofcrimes defined by treaties), together with the UnitedNations Convention against Illicit Traffic in NarcoticDrugs and Psychotropic Substances.

22. The above does not imply the exclusion from thelaw applicable to the offences contained in the futureCode of Crimes against the Peace and Security of Man-kind, when it enters into force, and it is also without prej-udice to the conferral by States of jurisdiction with respectto other crimes not included in the said treaties.

23. A special situation arises with respect to the crimeof aggression which has hitherto not been characterized ina universally accepted international instrument. In thisconnection, it is considered that this crime against peaceshould be included in the jurisdiction of the tribunal underthe provision which empowers the Security Council tosubmit a complaint to the tribunal, provided that theinvolvement of the Security Council is only possible afterthat organ of the United Nations has determined the exist-ence of aggression in accordance with Chapter VII of theCharter of the United Nations.

24. The draft is consistent with the Chilean position inreferring only to offences committed by individuals; itdoes not extend the jurisdiction of the tribunal to States,notwithstanding the fact that such individuals may beagents of the State. As our Government has already indi-cated, to bring States to justice would raise the most seri-ous difficulties and, in any case, there are other mecha-nisms in force in international law to penalize illegalconduct by States. In this respect, we reaffirm the opinionof Chile that, in order to counterbalance the lack of juris-diction of the international tribunal in respect of offencescommitted by States, the role of the Security Council, thatof the International Court of Justice and, in particular, themechanisms for the protection of human rights should bestrengthened.

IV. JUDGEMENT AND SENTENCING

25. Lastly, in relation to the procedure of the tribunaland to the problem of the enforcement of sentences, theGovernment of Chile makes the following observations:

(a) Article 51 (Judgement) does not envisage the pos-sibility that judgements may include separate or dissen-ting opinions. Our country considers that, as the practiceof other international courts indicates, the acceptance ofseparate or dissenting opinions makes a contribution tothe development of international law and, in a particularcase, might be of great importance to an accused personwho decided to appeal against a conviction and wouldalso be of interest to the Appeals Chamber in decidingwhether to set aside a conviction;

(b) Article 67 provides for the power of the tribunal togrant pardons, parole and commutation of sentenceswhere the national legislation of the State in which thecondemned person is serving his sentence so permits.

26. In this connection, the Government of Chile consid-ers that, given the seriousness of the crimes covered bythe jurisdiction of the tribunal, a person should not, as ageneral rule, be released before the sentence imposed bythe court has been served and that in no case should theapplication for the above measures be subject to thevagaries of the national legislation of the States in whichthe sentences are being served; the measure indicatedshould be available only in limited circumstances and be


subject to the exclusive authority of the internationaltribunal.

CONCLUSION

27. The Government of Chile considers the foregoing asbeing without prejudice to possible further commentswhich may be formulated or required .

Cuba

[Original: Spanish][7 February 1994]

1. In the opinion of the Government of Cuba, the essen-tial conditions do not yet exist for the establishment of aninternational criminal jurisdiction that would fulfil itsobjectives without, by its actions, adversely affecting theprinciple of sovereignty, which constitutes a basicpremise for the existence of the United Nations.

2. The Government of Cuba considers that the draft stat-ute submitted to the Assembly by the Working Group ofthe International Law Commission could be adopted onlyif it is presented in the form of a treaty to which the coun-tries concerned could accede if they so wished; such atreaty should contain the requisite reservation clauses inrespect of crimes which the parties do not wish to refer toan international jurisdiction.

3. Regarding the nature of the court to be established,the Government of Cuba is of the view that, if established,the court should be a permanent body, although it shouldsit only when required to consider a case. Recourse to adhoc courts established to deal with situations already inexistence would pose the risk that such courts might beinfluenced by the said situations, which would militateagainst their objectivity and impartiality.

4. If the said court is eventually established, the magis-trates who constitute it should be elected on the basis ofequitable geographical distribution. Furthermore, itshould be borne in mind that the various legal systemsshould be represented on the court, so as to give it greateruniversality.

5. With regard to the jurisdiction to be conferred on thecourt, it should basically cover the list of crimes containedin the draft Code of Crimes against the Peace and Securityof Mankind, since it was in the context of the draft Code,and with a view to its elaboration, that the decision to con-sider the possibility of establishing the said court wastaken.

6. As to the rights of defendants before this internationalcourt, the Government of Cuba believes that they shouldbe afforded all the guarantees of an objective and impar-tial trial. In this connection, it should be clearly estab-lished that such persons cannot be tried in their absence,unless it is fully proved that such absence reflects theintention to evade justice.

7. For the Government of Cuba, the question of the cat-egory of parties which can submit cases to the proposedcriminal court is of special interest. To confer on the Secu-rity Council the power to refer cases to the court wouldconstitute an extension of the functions entrusted to theCouncil under the Charter of the United Nations and,accordingly, a violation of the Charter. The SecurityCouncil should not assume functions which would makeit equivalent to the prosecutor's office, especially if weconsider that we would be dealing with charges notagainst States, but against individuals, whose conduct,however reprehensible and deserving of punishment, can-not endanger the peace and security of mankind.

8. Moreover, the possibility that the Security Councilcould submit cases to the international criminal courtwould conflict with the right of the country concerned todecide for itself whether it should submit a case to anational or an international jurisdiction; that, in turn,would undermine the voluntary nature of the court, whichwould be ensured through its establishment by means of atreaty. Accordingly, this would adversely affect the prin-ciple of sovereignty.

9. The Government of Cuba trusts that, in re-examiningthe topic, the International Law Commission will giveproper consideration to the misgivings of a large part ofthe international community with regard to the role thatthe Security Council could play under the proposal sub-mitted by the Commission, as demonstrated during thediscussion of the draft statute in the Sixth Committee dur-ing the forty-eighth session of the General Assembly.

Cyprus

[Original: English][28 April 1994]

1. In article 22 (List of crimes defined by treaties) of thedraft statute a new provision should be added to includeas a crime the "organized, massive violation of humanrights for political or religious reasons or reasons of racein time of either peace or armed conflict". Legal supportfor this crime can be found in the Niirnberg Court,1 moreprecisely in article 6 (c) of the statute where there is refer-ence to "crimes against humanity including inhumanactivities against a civilian population before or after thearmed conflict or prosecution for political or religiousreasons or reasons of race".

2. The crime was linked with war crimes or crimesagainst peace2 but the provisions of this draft statute foran international criminal court do not differ significantlyfrom the proposed addition. This addition is also justifiedif recent developments in international law and humanrights are taken into consideration. It could also be sup-ported that the proposed international crime has been

1 See United Nations, The Statute and Judgement of the NiirnbergTribunal, History and Analysis, memorandum from the Secretary-General (Sales No. 1949.V.7).

G. Sch warzenberger, International Law as Applied by Internation-al Courts and Tribunals, 3rd ed. (London, Stevens, 1976), vol. Ill:International Constitutional Law, p. 496.


codified as part of customary international law as a resultof Security Council resolution 827 (1993) of 25 May1993, by which the Council decided to establish anAd Hoc International War Crimes Tribunal for the Terri-tory of the Former Yugoslavia . It should also be notedthat the reference here is to "crimes against humanity" inrelation to the application of article 26 (Special accept-ance of jurisdiction by States in cases not covered by arti-cle 22) of the proposed statute, which refers to interna-tional crimes not covered by article 22.

3. Referring to article 23 (Acceptance by States of juris-diction over crimes listed in article 22 ), the Governmentof Cyprus would like to support alternative C.

Czech Republic

[Original: English][13 May 1994]

STATUS OF THE TRIBUNALAND THE RELATIONSHIP WITH THE UNITED NATIONS

1. The status of the international criminal tribunalshould be governed by a multilateral international treatywhich would at the same time provide for the relationshipof the tribunal with the United Nations system. It wouldnot be practical to establish the international criminaltribunal as one of the principal United Nations organs,because in such a case an amendment to the Charter of theUnited Nations would seem to be necessary. Now, whenthe establishment of the international criminal tribunalhas become a realistic goal, it would not be wise to exposethe results of long years of codification work to risks thatthe revision of the Charter implies.

2. The relationship of the tribunal with the UnitedNations could be similar to the relationship of specializedagencies with the United Nations. The Czech Republictherefore prefers the second alternative of article 2.

JURISDICTION OF THE TRIBUNAL RAT/ONE MATERIAE

3. As far as the jurisdiction ratione materiae of the tri-bunal is concerned, the draft statute puts special emphasison crimes defined by international treaties. Nevertheless,after the Second World War, crimes under general interna-tional customary law were prosecuted before interna-tional tribunals and their punishment is envisaged also inthe Statute of the International Criminal Tribunal for theFormer Yugoslavia. Article 26 of the draft statute of thepermanent international criminal tribunal extends thejurisdiction of the tribunal to this category of crimes too.

4. The Czech Republic agrees with this concept. How-ever article 26 deals with two different questions at thesame time: the jurisdiction ratione materiae in the case ofcrimes under general international law and the way ofacceptance of this jurisdiction. There is no reason why thequestion of jurisdiction ratione materiae could not befolly and comprehensively dealt with in a single article ofthe statute article 22. It would be preferable to insert the

idea of article 26, paragraph 2 (a) in article 22 as itssecond paragraph.

5. The jurisdiction of the tribunal should in no casecover crimes under national law. The Czech Republictherefore recommends the deletion of subparagraph (b) ofarticle 26, paragraph 2.

6. As to the list of treaties on the basis of which article22 defines jurisdiction ratione materiae, it seems to beincomplete. Should the criteria for listing treaties in arti-cle 22 be the existence of a precise definition of the crimeand the entry of the treaty into force as well as the treaty'slargest acceptance by the international community, it isdifficult to understand why the Convention against Tor-ture and Other Cruel, Inhuman or Degrading Treatment orPunishment and the Convention against Illicit Trade inDrugs and Psychotropic Substances are not on the list.

7. Another problem to be considered carefully is thatnot necessarily all the crimes defined by the above-men-tioned treaties are so serious as to be brought before thetribunal. It would not be appropriate to overburden the tri-bunal with cases which can be effectively punished byStates themselves. A certain degree of seriousness of thebreach should therefore also be a precondition for thejurisdiction of the tribunal. The mechanism of the tribunalshould be reserved for the most serious internationalcrimes, especially in the event when prosecution beforedomestic courts cannot be guaranteed.

ACCEPTANCE OF THE JURISDICTION OF THE TRIBUNAL

8. From among the alternatives to article 23 proposedby the Working Group, the Czech Republic would preferalternative B.

9. Nevertheless the statute should provide for the estab-lishment of an obligatory jurisdiction of the tribunalwhich would be accepted ipso facto by the accession ofthe State to the statute for at least a small group of crimes.

10. Therefore the possibility should be considered tocombine alternative B with the concept of ipso facto juris-diction for a relatively small group of crimes, which arebeyond all doubt perceived by the international commu-nity as the most serious ones, such as those prohibited byGeneva Conventions of 12 August 1949 on the Protectionof Victims of War or the Convention on the Preventionand Punishment of the Crime of Genocide. In relation toall other crimes, the jurisdiction of the international crimi-nal tribunal would be accepted by the "opting out"method.

11. Thus a kind of basic core of the jurisdictionratione materiae would be created and States acceding tothe statute would in a credible way demonstrate theirresolution to put the mechanism of the tribunal intomotion.

SECURITY COUNCIL

12. The Czech Republic agrees to the concept of thedraft statute which enables the Security Council to submitcomplaints.


13. Despite the lack of an explicit provision to this endit would be appropriate for the Security Council to havethe right to submit complaints to the tribunal only whenalleged crimes were committed in situations envisaged inChapter VII of the Charter. This should be clearly stipu-lated in the statute.

14. It should also be beyond doubt that the general pro-vision requiring the acceptance of jurisdiction of Statesdoes not apply and that the right of the Security Councilto submit complaints does not depend on the State's con-sent of the jurisdiction of the tribunal.

Denmark

[See Nordic countries]

Finland


Germany

[Original: English][24 March 1994]

1. Germany is one of the countries that for years havebeen advocating stronger jurisdiction in internationalrelations. In the various multilateral organizations, espe-cially the United Nations, Germany has regularlyexplained why it considers the creation of an internationalcriminal court necessary. The unbearably large number ofregional conflicts which lead to massive violations ofhuman rights and humanitarian international law showsthe urgent need for practical steps to establish a universalsystem of criminal jurisdiction. Developments in recentyears justify the hope that this goal can now be attained.

2. The German Government welcomed Security Coun-cil resolutions 808 (1993) of 22 February 1993 and 827(1993) of 25 May 1993, respectively, calling for the estab-lishment of an international tribunal for the prosecution ofpersons alleged to be responsible for serious violations ofinternational humanitarian law committed in the territoryof the former Yugoslavia since 1991, and has assisted intheir implementation. The Government of Germany con-siders that tribunal's inception to be a major contributionto the strengthening of criminal jurisdiction within theframework of the United Nations.

3. This development has undoubtedly and lastinglyinspired the work of the International Law Commissionon a statute for an international criminal court. In the workof that court it will be crucial to apply the practicalexperience which the international community will gainfrom the International Criminal Tribunal for the FormerYugoslavia. The draft convincingly shows that it shouldbe possible to establish an international criminal court ifthe legal and technical problems can be solved. Inresponse to the Secretary-General's note of 4 January1994, the German Government submits the followingcomments on fundamental provisions of the statute:

LEGAL CHARACTER OF THE COURT

4. A major question is that of the court's legal character.The answer will inevitably affect the substance of a num-ber of the draft's provisions. Neither the commentary onarticle 21 by the ILC's 1993 Working Group nor the dis-cussion on this point in the Sixth Committee during theforty-eighth session of the General Assembly indicatesany clear preference.

5. The German Government has on several occasionsproposed that an international criminal court should befounded on a separate international treaty. However, thisbasic approach should not prejudice the possibility ofestablishing a close link between the court and the UnitedNations. The scope for this afforded by the provisions ofthe Charter of the United Nations should be used to thefull, though not extended. The German Governmenttherefore supports those proposals which would base thisinterrelationship on a separate instrument.

6. Another possible status for the international criminalcourt as a permanent institution, at least for the initialstage of its ad hoc activity, in relation to the UnitedNations would be one similar to that of the PermanentCourt of Arbitration in The Hague. But whatever theILC's ultimate choice, it should give the court the legiti-macy and universality it needs to exercise such criminaljurisdiction. And it is particularly important to ensure thatthe nature of the court's close link with the United Nationsdoes not impair its independence and integrity, includingthat of the judges.

JURISDICTION OF THE COURT

7. The core of the international criminal court's statuteis without doubt its jurisdiction rationae materiae. TheGerman Government considers that the court's jurisdic-tion should be as comprehensive as possible. It welcomesin principle the criterion for defining the court's jurisdic-tion chosen by the ILC's Working Group and incorporatedin articles 22 and 26. Article 22 (List of crimes defined bytreaties) establishes the court's jurisdiction in regard tothe category of crimes defined in accordance with the pro-visions of relevant international instruments. There arisesthe question, however, whether this actually meets therequirement of adequate specificity that is an indispen-sable principle of such jurisdiction. In the light of the stat-ute for the International Criminal Tribunal for the FormerYugoslavia,2 this statute, too, should contain a moreprecise definition of crimes.

8. Article 21 (b) (Revision of the Statute) offers a basison which to broaden the scope of the international crimi-nal court's jurisdiction established by article 22, shouldthe parties to the statute consider this necessary. Such aprovision should be conducive to the progressive devel-opment of international legal practice and law-making.Article 21 acquires additional significance merely in viewof the ILC's further work on the Draft Code of Crimesagainst the Peace and Security of Mankind. While theCode is still important, its conclusion should not be linked

1 See especially paragraph 4 of the commentary.2 S/25704 and Corr.l, annex.


to the adoption of a statute for the international criminalcourt. Nonetheless it should automatically fall within thejurisdiction of the court as soon as it enters into force.

9. Article 26 (Special acceptance of jurisdiction byStates in cases not covered by article 22) touches uponcrimes under general international law and crimes undernational law which the ILC Working Group regards as anadditional legal foundation for the court's jurisdiction. Inthe discussion of the draft in the Sixth Committee duringthe forty-eighth session of the General Assembly, the pro-posal that it should be possible to prosecute under crimi-nal law crimes falling within the ambit of internationalcustomary law evoked misgivings, particularly becauseof their indeflnability. Considering the desirability of giv-ing the court comprehensive scope, it would hardly bejustifiable to exclude from its jurisdiction crimes undergeneral international law not covered by article 22. More-over, the usually serious nature of such crimes, such asviolations of the laws or customs of war as well as crimesagainst humanity, would be grounds for criminal prosecu-tion of those responsible. It would undoubtedly be advis-able for the International Law Commission to provide inthis case too for a precise description of relevant crimes.The solution found in articles 3 and 5 of the statute of theInternational Criminal Tribunal for the Former Yugosla-via would seem to offer a suitable basis.

10. More serious doubts arise, in the opinion of the Ger-man Government, from criminal prosecution by the inter-national criminal court of crimes under national law asprovided for in article 26, paragraph 2 (b) of the draft stat-ute. It is difficult to perceive any compatibility with theprinciple of nullum crimen sine lege. Especially, the factthat the United Nations Convention against Illicit Trafficin Narcotic Drugs and Psychotropic Substances is merelymentioned as an example makes it appear doubtfulwhether the necessary determination can be imparted.

11. As already mentioned, the activity of the interna-tional criminal court should be based upon a comprehen-sive jurisdiction. It would therefore be meaningful for thatjurisdiction to have universal acceptance in the commu-nity of nations. In this context the "opting-out" system inalternative B of article 23 (Acceptance by States of juris-diction over crimes listed in article 22) would seem themost appropriate basis for a broadly accepted jurisdiction.

12. Articles 25 (Cases referred to the Court by the Secu-rity Council) and 27 (Charges of aggression) of the draftconcern the undoubtedly sensitive relationship betweenthe international criminal court and the Security Council.The German Government supports the basic view that theSecurity Council should be in a position to submit specificcases to the court. Since criminal prosecution is envisagedonly in relation to persons, the statute should make clearthat the Security Council is in this case drawing attentionto situations in the immediate context of which the crimesdefined under article 22 might be involved. At the sametime, consideration should be given to the questionwhether the possibility provided for in article 25 does notrequire enlargement in the light of the Security Council'scompetence in accordance with the Charter of the UnitedNations. This applies especially in cases of grave viola-tions of humanitarian international law and crimes against

humanity. It would also seem conceivable for the SecurityCouncil to exhort countries to cooperate with the court.

13. Article 45 (Double jeopardy {non bis in idem))should likewise be the subject of careful examination. Theaim pursued by the Working Group in paragraph 2 seemsquite plausible. Doubt exists, however, as to whether itcan be put into practice without affecting the sovereigntyof the country concerned.

14. Furthermore, the international criminal court wouldin all cases referred to in article 45, paragraph 2, have toassume the role of a superior court and review alreadycompleted proceedings as to whether the acts committedby the person sentenced were wrongly characterized asordinary crimes, whether the proceedings were impartialor independent or were designed merely to shield theaccused from international criminal responsibility orwhether the case was diligently prosecuted. Such reviewproceedings would probably present considerable diffi-culty. From the point of view of criminal procedure, con-sideration should be given to the possibility of making thenon bis in idem principle generally applicable.

15. Articles 19 (Rules of the Tribunal) and 20 (Internalrules of the Court) vest the international criminal courtwith the right to determine its own rules and procedures.There are no objections to the court's establishing rulesthat have no external implications. Germany shares theview of a number of countries, however, that the provi-sions governing investigation and trial procedures shouldbe subject to approval by the parties to the statute. At leastthe core provisions in this regard should be made integralparts of the statute. It is also felt that there is good reason,partly with a view to article 40 (Fair trial), to specify in thestatute the interests of victims and witnesses, and espe-cially their need for protection. On the other hand, therights of the accused would appear adequately providedfor in article 44.

16. Article 53 (Applicable penalties) raises the questionof defining suitable punishment (nulla poena sine lege)which was also thoroughly discussed in the process ofestablishing the International Criminal Tribunal for theFormer Yugoslavia. It is fair to point out in this connec-tion that the relevant international instruments do not as arule contain the clear-cut definitions of penalties neces-sary for international jurisdiction. To the extent that theprovision in article 53, paragraph 2, is to be understood tomean that it in no way limits the range of punishment, itwould not satisfy the requirement that not only the pun-ishability but also the penalties valid at the time of thecommission of the crime must be determined by law. Pro-vision should therefore be made for the imposition of thepenalties provided for under the national law of the Statesreferred to in paragraph 2. To this catalogue of penaltiesshould be attached the penalties provided for under thelaw of the State of which the victim is a national.

17. The German Government has already expressed itsrejection of proceedings in absentia in connection withthe elaboration of the statute for the International Crimi-nal Tribunal for crimes in the Former Yugoslavia. Thisview received substantial support during the discussion ofthe present draft statute in the Sixth Committee at theforty-eighth session of the General Assembly. Should the


possibility of proceedings in absentia meet with theapproval of the majority, further provisions would have tobe incorporated in the statute which would fully clarify allquestions arising in this connection.

18. The German Government agrees with the pointsmade in connection with article 56 (Proceedings onappeal) during the debate in the Sixth Committee at theforty-eighth session of the General Assembly. Para-graph 1 merely provides that the bureau shall set up anAppeals Chamber as soon as notice of appeal has beenfiled. However, the statute should contain further provi-sions on the activity of the chamber. With regard to appealproceedings as a whole, provision should be made for theestablishment of a separate chamber from the outset.

Hungary

[Original: English][20 June 1994]

GENERAL COMMENTS

1. The establishment of an international criminal tribu-nal is not simply the establishment of a new legal institu-tion in international law but, rather, a new type of chal-lenge that States must face by legislation and legalpractice. It seems that Hungary has already made a fewsteps in this respect. We should like to refer here to thedecision adopted by the Hungarian Constitutional Courton 13 October 1993 which recognizes the rules of inter-national criminal law and reinforces the precedence of thesame over internal national law. In this decision, the Con-stitutional Court determines that the legal system of theRepublic of Hungary accepts the generally recognizedrules of international law, which represent an integral partof Hungarian law without any further transformation.Moreover the Constitutional Court further states that thenorms regarding war crimes and crimes against humanityare a unique part of international law which does notsimply regulate the relationships between States, but inwhich international law determines certain responsibil-ities and criminal liabilities for individuals. When wespeak of war crimes and crimes against humanity, wespeak of crimes which, in this qualification, do not origi-nate as part of domestic law but, rather, the community ofnations holds these to be crimes and the internationalcommunity determines the manner in which they shouldbe judged. The significance of these acts is so great thatthey cannot depend on the acceptance of individual Statesor their criminal law policies at any given point in time.

2. The decision of the Hungarian Constitutional Court iscertainly unique in its handling of the question of interna-tional adjudication and the international criminal tribunal.It states that war crimes and crimes against humanity willbe prosecuted and punished by the international commu-nity: on the one hand by way of the international courts,and on the other, those States which wish to be a part ofthe international community will have to bear the respon-sibility for apprehending the perpetrators.

3. The decision of the Constitutional Court speaksseparately in Security Council resolutions 808 (1993) of

22 February 1993 and 827 (1993) of 25 May 1993, whichserve as a basis for an ad hoc international criminal tribu-nal. In the opinion of the Constitutional Court, the statuteof the tribunal determines and contains, in detail, interna-tional material law, the rules of which are, beyond ashadow of a doubt, integral parts of international custom-ary law; thus the problem of the fact that not all the Statesare parties to certain treaties does not create a legal obsta-cle. The applicable law is, therefore, independent of thedomestic laws of individual States. In keeping with this isthe fact that the tribunal, in its authority to punish crimes,stands above the national courts.

4. The decision of the Hungarian Constitutional Court,in our opinion, demonstrates the fact that Hungary is com-mitted to the ideals of the international criminal tribunaland, as far as her own legal system is concerned, she willdo all in her power to take the needed legislative and prac-tical steps to assist the work of the tribunal following itsestablishment.

COMMENTS ON SPECIFIC ARTICLES

5. In relation to the establishment of the court, it hasbeen repeatedly emphasized that the legitimacy of such abody could be guaranteed only by way of a multilateralinternational treaty. It is Hungary's resolute opinion,therefore, that the Court must be established with thecooperation of the United Nations, but on the basis of anew treaty. Related closely to this point, is the fundamen-tal question of whether the court should act as a judicialorgan of the United Nations or, instead, outside of thisorganization. It is to be emphasized that the UnitedNations must play a significant role in both the establish-ment of the court and in its actual operations. At the sametime, it is not considered absolutely necessary that thecourt is to be organized within the framework of theUnited Nations. This opinion has both formal and concep-tual reasons behind it. The formal one is the oft repeatedfact, which we also agree with, that the approach whichwould place the court within the United Nations wouldrequire the amendment of the Charter of the UnitedNations, which would probably delay the realization ofthe goal. On the other hand, the court's establishmentneed not happen within the United Nations from aconceptual point of view, either, in so far as the points ofcontact which would ensure the active participation of theUnited Nations do exist. Here, we refer primarily to theauthority of the Security Council contained withinarticle 25 (Cases referred to the Court by the SecurityCouncil).

Article 2 (Relation of the Tribunal to the United Nations)

6. Summarizing the above, Hungary therefore supportsthe second version of article 2, according to which the tri-bunal would have ties with the United Nations, but not bea part thereof. We understand, at the same time, that thissolution would make the operations of the tribunal morecomplicated, as it would clearly require greater adminis-trative activity and its financing would occur separatelyfrom that of the United Nations.



7. The structure of the court raises some very difficultquestions. At the present time, we do not know the size ofthe case load which will be placed before the tribunal orthe types of cases this would consist of. As a result, it isdifficult to determine the optimal number of judges or theoptimal structure. Despite everything, the number of18 judges as determined in article 5 seems insufficient.These 18 judges would not only be responsible for adju-dicating cases at the first instance but at the highestinstance as well, and the members of the bureau wouldalso come from among their number. Assuming that forone reason or another, certain judges could also have to bedisqualified from adjudication for reasons of conflict ofinterest, this number seems rather small.

8. Regarding the structure of the tribunal, we are moreor less in agreement with the units as listed in article 5.Hungary considers a court established in this manner to beviable. We would add, however, that the creation of acommittee which would consist of the delegates of thesignatory States would be worth considering. This com-mittee could be responsible for those tasks which woulddepend on the decisions of the States parties anyway,namely the selection of the judges, the selection of pros-ecutors and the determination of the budget, and wouldserve, further, as a forum of communication between thetribunal and the member States on matters of a politicalnature.

9. There is no doubt for even a moment that it is neces-sary to separate the court proper from the procuracywithin the tribunal. Fair proceedings cannot otherwise beguaranteed. This necessity is not, however, affected by thefact that the procuracy may be found within the bounds ofthe tribunal.

Article 6 (Qualifications of judges)

10. In our opinion, there will be little to debate about thelisting of the principles governing the selection of judges.The general principles which would serve as guidelinesfor the member States can be found in article 6. Beyondthese, we would add one more criterion, one which wouldrelate to judicial experience. Namely, we would considerit necessary to determine a minimum age limit, which wewould set at 45 years of age. We agree with the opinionthat the judges of the tribunal must represent the largestlegal systems in existence. This would be a significantfactor especially if the tribunal were to utilize the rules ofinternational law, in accordance with article 28 (Appli-cable law), as a supplementary source. In relation to thisquestion, we would consider it as a positive effect if thevarious regions of the world were also represented in thetribunal.

Article 8 (Judicial vacancies)

11. Article 8 deals with the filling of vacated judicialseats. It is Hungary's position that it would be a bit tediousto repeat the procedure outlined in article 7 (Election ofjudges) in the event of a seat's being vacated. It would, inour opinion, serve the goal better to establish a system of

alternative judges. The alternative judges would beselected simultaneously with the ordinary judges of thetribunal and would automatically step in to fill a vacatedseat. We would note that the establishment of the previ-ously mentioned committee (para. 7) would, in and ofitself, be a factor simplifying the procedure which wouldneed to be followed in the event of a seat's becomingvacant.

Article 10 (Election and functions of the President andVice-Presidents)

12. Article 10 of the statute refers to the bureau. TheGovernment of Hungary agrees with the content and man-ner of election of the bureau, but we have certain doubtsas to the tasks which would be given to it. In our opinion,we should return later to the question of whether anotherorganizational unit should take over the responsibilities ofthe prosecutorial council from among the tasks. In rela-tion to the selection of the bureau, we find the regulationsto be lacking in that there is no mention of re-election orthe conditions thereof. In the opinion of Hungary, there isno obstacle to re-election.


13. Article 11 of the statute regulates the questionrelated to the conflict of interest. Hungary agrees withthis, although we would expand the sphere of thoseauthorized to initiate hearings as to conflict of interest.Paragraphs 2 and 3 give this right only to the judge andthe defendant. It is, however, our opinion that this shouldbe expanded to include the prosecutor and the complain-ant as well. It is quite clear that questions may be raisedfrom the point of view of both the procuracy and the com-plainant representing the victim which could serve asgrounds for the disqualification of a given judge from agiven case.

Article 12 (Election and functions of the Registrar)

14. Article 12 deals with the election and functions ofthe registrar. It is our opinion that the election of the reg-istrar is a task which is typically that type of task whichwould be placed within the authority of the committeeproposed by us. We agree with the right of the bureau tomake proposals. The convocation of all judges is not abody, however, which should be forced to deal with suchadministrative questions. Added to this, it is a fact that thejudges would represent only a small fraction of the Statesparties and therefore this right should be transferred to abroader body. Paragraph 2 (b) would give the registrar theopportunity to fill other positions within the UnitedNations with the permission of the bureau. We do not con-sider this solution to be satisfactory, nor is it in harmonywith our idea that the tribunal shall not be an organ of jus-tice of the United Nations, but a separate and independentbody which works in close cooperation with theUnited Nations.



15. The same positions which we outlined aboveregarding the election of judges also apply to the electionof prosecutors and deputy prosecutors. At the same time,Hungary has doubts regarding the concept that therewould be only one prosecutor and one deputy prosecutor.We consider the election of at least one more deputy pros-ecutor necessary and should like to see more detailedregulations regarding the prosecutor's staff, as well. Wesupport all points which come to be regulated as to pros-ecutorial independence and conflict of interests.


16. At the same time, we consider paragraph 2 ofarticle 15 to be problematic. This point would give the tri-bunal the opportunity to remove the prosecutor and thedeputy prosecutor from their posts by a two-thirds major-ity vote. The statute emphasizes that the prosecutor andthe organization of the procuracy within the tribunal, asthe organ which is responsible for investigation andprosecution, should operate separately and independently.This regulation in paragraph 2 would question this sepa-rateness and independence. It is our opinion that the tribu-nal should instead have the right only to propose such astep and the decision should be left to the States parties orto the permanent committee of States parties, if suchexists.


17. It is not absolutely necessary to maintain a five-yeartime limit regarding re-evaluation of the statute, espe-cially if the re-evaluation would pertain to the crimeslisted in article 22. At the same time, we would think itworth considering whether the Member States canre-evaluate any question relating to the statute at therequest of one third of all the Member States.

18. One of the key questions to the future fate of theentire statute is the proper determination of the jurisdic-tion of the tribunal and the law which will be applicableby the tribunal. It is our position that the internationalcriminal tribunal must, by its very nature, deal with themost serious of all crimes under international law. Thequestion of which crimes would fall into this categorymay be raised. It is Hungary's opinion that at least the fol-lowing conditions must be satisfied:

(a) The given crime must affect not only the interestsof a certain nation or nations, but the fate of all ofhumanity or the international community;

(b) The acts must be considered to be crimes under theinternationally recognized principles of criminal law andthis nature should be recognized by all concerned;

(c) The struggle against these crimes must, at least,involve cooperation between nations which would lead toproceedings by the international criminal court calling theperpetrators to task.

19. It can easily be seen that in the three criteria listedabove, several principles, including such classical crimi-

nal law principles such as nullum crimen sine lege ornulla poena sine lege are also included.


20. As far as the crimes listed in article 22 are con-cerned, it is Hungary's opinion that all of these satisfy theabove-mentioned criteria. We should consider it a satis-factory solution, also, if the statute were to refer to thoseinternational treaties which define such acts and whichfurther contain the conditions of joint international pur-suit. We should add, however, that we consider it lackingthat the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment is mis-sing from this list, as it is our opinion that the said conven-tion contains a crime the nature of which would definitelyplace it within the sphere of article 22. We should add thatwe agree with the remarks of the Working Group thatmercenary acts are left out only because the convention inquestion is not yet in force, but that following the enteringinto force of this instrument, the acts covered by the sameshould without a doubt be included in the crimes listed inarticle 22.

21. In relation to article 22, beyond general agreement,we have a few doubts. There is no doubt that genocide,war crimes, apartheid and crimes against internationallyprotected individuals are crimes which are of such grav-ity, independent of the circumstances, that they wouldform a basis for the jurisdiction of the international crimi-nal court. This is not necessarily the case for the variouscrimes of terrorism. The taking of hostages or an aircrafthijacking does not necessarily have to belong to the juris-diction of the court. Such acts could be brought to thejurisdiction of the court only if the individuals who perpe-trate such acts do so in the name of or with the authorityof a State. In other cases, we find it sufficient for anational court to prosecute them, which must naturally beassisted by way of international cooperation amongorgans of criminal justice.

22. Here, we must make mention of the relationship tothe draft code of crimes against the peace and the securityof humanity. Hungary greatly values the work which theInternational Law Commission has done to date in thepreparation of the code and it is our opinion that thepresent status of the work offers hope as to completion. Itis our determined opinion that there is a need for the codeand its text should be adopted as soon as possible. We donot, however, connect the establishment of the interna-tional criminal court to the adoption of the code. It is ouropinion that the statute and particularly the provisions ofarticle 22 do sufficiently outline the sphere of crimeswhich would be adjudicated by the international tribunal.In and of itself, article 22 contains a much more narrowsphere, but it is our opinion that it is sufficient for thecriminal tribunal to begin its work with the crimes listedtherein and perhaps to expand these within the bounds setforth in article 26.



23. Alternative A of article 23 seems to be logical in andof itself, but we still support alternative B instead. In ouropinion, despite the difficulties in the beginning, it is thisalternative which would guarantee the actual operationsof the tribunal and its broader legitimacy.


24. Article 25 discusses a basic problem, without adoubt. This article authorizes the Security Council to sub-mit to the tribunal individual cases of the crimes listed inarticles 22 and 25. As mentioned earlier, Hungary doesnot support an approach which would place the tribunalwithin the structure of the United Nations, but we do con-sider strong relations with the United Nations to be neces-sary. It is our opinion that the authority of the SecurityCouncil as defined in article 25 would be a good examplefor this. We must add, however, that this authority cannotprejudice facts or legal questions, at least as far as the per-petrators are concerned. To guarantee this, perhaps itwould not be unhelpful clearly to define such a provision.


25. Article 26 is perhaps the most delicate part of thedraft. There is no doubt that international customary lawcontains a number of elements which may be part of inter-national criminal law. Aggression, in particular, may beconsidered to be among these. Hungary understands andsupports the position that would allow individual Stateswhich are not otherwise parties to the international trea-ties listed in article 22 to recognize jurisdiction over suchcrimes on the basis of customary international law.

26. At the same time, however, we cannot consider ageneral clause in the statute which speaks of the generalrecognition of the criminal law norms under internationalcustomary law to be entirely unquestionable as far as therealization of the principles of human rights are con-cerned. It is our opinion that this is a definition the scopeof which is too broad and therefore the principle of nullumcrimen sine lege could not easily be maintained in thepresent wording. This wording creates uncertainty whichcannot be permitted in criminal law proceedings. As aresult, we do not find the provisions made in article 26,paragraph 2 (a) to be fully sufficient.

27. The 1993 Working Group mentioned, as an alterna-tive to paragraph 2 (a), a solution which would resolvethis point by the jurisdiction of the Security Council asdefined in article 25, on the basis of which the SecurityCouncil would be authorized to submit such matters to thetribunal. Hungary finds this to be only partially proper, inthe light of the opinions expressed therein, as this seemsto be practical in matters of aggression, but not in othercases.

28. We have grave doubts as to the provisions ofparagraph 2 (b). It is our opinion that, while dealing in

narcotics is a serious crime, it cannot fall into the samecategory as the international crimes listed in article 22 ofthe statute or as aggression.

29. The United Nations Convention against Illicit Traf-fic in Narcotic Drugs and Psychotropic Substances seesthe problem of pursuit of narcotics dealers to be onewhich can be solved at a national level with internationalassistance. It is our opinion that this group of crimes can-not, in any event, be placed under article 22. It is evenquestionable whether the jurisdiction of the tribunalshould be extended, under present circumstances, to thisgroup of crimes. The above-mentioned Convention doesnot sufficiently define these crimes.

Article 27 (Charges of aggresssion)

30. Article 27 of the statute is in close connection witharticle 25. This article states that no one may be accusedof the commission of the crime of aggression until theSecurity Council decides that the State in question is trulyguilty of this act. Hungary considers this solution to beproper, but if we approach the question from the angle ofthe independence and impartiality of the court, thisapproach may create some difficulty. Such a decisionwould be difficult to separate from the facts and legalquestions which belong to the jurisdiction of the tribunal.Conflict may arise, for example, if the court wishes todeclare that an individual person has not committed thecrime of aggression. It is our opinion that the resolution ofthis question requires further thought and examination.


31. The question of applicable law is settled by arti-cle 28. We recognize the fact that the statute cannotanswer all questions which may arise. It is, therefore, nec-essary to recognize international law and (as secondarylaw) the laws of various nations as a subsidiary source.Hungary would add, however, that in relation to para-graph b of article 28, the same objections arise as those toarticle 26.


32. The initiation of proceedings has been conferred byarticle 29 to the States parties and to the Security Council.This is in harmony with the spirit of the entire Statute,although we should add that Hungary does not consider itundesirable to have proceedings initiated ex officio, i.e.by the authority of the tribunal, as well.


33. Paragraph 1 of article 30 would grant an importantrole in this activity to the bureau, which would, in prac-tice, see to the supervision of the legality of the investiga-tion and the actions of the prosecution. As a matter of fact,the bureau would practise the authority of a certain typeof "judge in charge of investigation". We find this to be abit worrisome on our part, since the members of thebureau are given a role in the Council of Appeals.



34. Hungary considers important the rules in article 31regarding taking suspects into preventive detention.Paragraph 2 states that the tribunal may place the defend-ants into custody for a period of time of its own choosing.

35. The rules of preventive arrest are not detailedenough. We find lacking, for instance, a determination ofthe period of time for which a person may be taken intocustody and further, the period after which the arrest mustbe re-evaluated or extended. Hungary thinks such provi-sions should be included as guarantees.

Article 32 (Indictment)

36. Paragraph 2 of article 32 names the bureau as thebody which would act as an indictment chamber. Accord-ing to our previously expressed opinion, the general com-petence of the members of the bureau is incompatiblewith this assignment. The indictments should rather behandled by a separate council of prosecution organizedwithin the tribunal.


37. Within the framework of article 33, Hungary woulddefine three groups of States by their relations to the stat-ute. The third group is composed of States which are notparties to the statute. These States may only be requestedto cooperate. The statute does not resolve the question ofwhat should happen if a given State is not willing tocooperate. In this event, various possibilities could beconsidered including, perhaps, the suspension of the trial.


38. Article 35 gives the tribunal the opportunity torelease the defendant on bail. We find the institution ofbail to be generally acceptable; however, we have doubtsas to the advisability of allowing perpetrators of crimes asgrave as those regulated by the statute to avoid custody inreturn for bail once prior arrest has been made. It is espe-cially worth considering whether this opportunity givento the defendant would not endanger the success of thetrial.

Article 37 (Composition of the Chambers)

39. Regarding article 37, there is a unique rule of dis-qualification which would not allow a judge to participatewho is a citizen of either the State submitting the com-plaint or that of which the accused is a national.

40. Hungary has certain doubts as to the provisionwhich would have the bureau name the members of thechambers for individual cases. We would consider it bet-ter if permanent chambers were established and caseswould be handed to these as they arrive. The bureauwould naturally have the proper authority in establishingthe permanent chambers.

Article 38 (Challenge to jurisdiction)

41. The challenge to jurisdiction is an important guaran-tee factor. The provisions of article 38 would allow theaccused to challenge the jurisdiction at any time duringthe trial and a State party to do so at the commencementof proceedings. In our opinion, this is too wide a sphere.Beyond a doubt, some States parties, must be given thisright; however we agree with the opinion that only Stateshaving a direct interest should be allowed to challengejurisdiction. The sphere of interested States need not,naturally, be interpreted narrowly, but could include notonly the States where the crimes were committed, and theStates to which the defendant belongs, but all Stateswhich played an active or passive role during any phaseof the proceedings (supplying of evidence, offering legalassistance, etc.).

42. The commentary states that in the absence of thechambers, the bureau must evaluate the defendant's peti-tion. Hungary finds this to be worrying from a guaranteepoint of view. The bureau cannot engage in such activity,in our opinion, as this would constitute a conflict of inter-ests. A prosecution chamber must be created for theevaluation of such complaints and this type of decisionwould belong to its jurisdiction during the period prior tothe trial proper.

43. The aforementioned do not conflict with the factthat this right of the defendant need not delay the trialunnecessarily. In the interest of the above, it would benecessary to establish a rule which would allow the dis-missal of the defendant's complaints without prejudice ifhe continually makes these with the same arguments.

Article 40 (Fair trial)


Article 42 (Equality before the Tribunal)

Article 43 (Presumption of innocence)


Article 45 (Double jeopardy (non bis in idem))

44. The provisions of articles 40 to 45 deal with thedefendant's right to a fair trial and with the guarantees ofthe accused's rights. These provisions are, for Hungary,extraordinarily important from the point of view of theentire statute. It is our opinion that the regulations are, ingeneral, in accordance with the principles generallyaccepted in international law, that is, those which the vari-ous international documents contain. Hungary would add,however, that we would further develop certain provi-sions of the regulations, that is, we are believers in a moredetailed and exact text. This would apply especially toarticle 41, which, considering the unique regulations,takes on new dimensions as compared to the traditionalinterpretation.

45. Article 44 lists the individual rights of the accused.We find lacking the right to submit a general complaint,


in which the defendant might challenge the proceduraldecisions taken during the course of the trial which heconsiders damaging to himself but which are not of a ver-dict nature.

46. One of the most debated questions of the procedureis that of a verdict in absentia. Article 44, paragraph 1 (h)gives the court the opportunity to determine the absenceof the accused as being deliberate and the court may thenhold the trial. This provision seems worrying to Hungary.A verdict in absentia would constitute a limit on the rightto a defence such as would make questionable the fairnessof the entire procedure. We are aware that the resourcesfor forcing a defendant to appear before it are much morelimited in the case of an international criminal court thanfor a national court. We also recognize the fact that theverdict of an international court has a great deal of valuein principle and, therefore, the goal is not simply the con-viction of the defendant, but the message which the com-munity of nations would thus communicate. In some way,a rational compromise must be found which would pro-tect the principle of a fair trial and still not endanger theoperation of the court. One of these possible routes mightbe if the court were allowed, as an exception, and weemphasize exception, to hold the proceedings in absentia.

47. In those exceptional cases when it seems necessaryto hold the trial anyway, the verdict can, naturally, be onlyconditional. In the event of the later appearance of thedefendant, the proper measures, in our opinion, would bethe setting aside of the original verdict and the repetitionof the entire trial.

48. Article 45 states the prohibition against double jeop-ardy. Hungary agrees with this provision entirely,although we must say openly that in the event of interna-tional crimes, the jurisdiction of the international courttakes precedence over the jurisdiction of the nationalcourt. It is as a result of this that paragraph 2 (b) ofarticle 45 was drafted. Hungary considers it proper, in theevent of a second trial, to take into consideration the pen-alty which the person has actually already served. How-ever, guidelines would be necessary as regards this provi-sion.

Article 46 (Protection of the accused, victims andwitnesses)

49. Only one objection can be raised to article 46 andthat is the principle of direct evidence. It is a limit to theaccused's rights if evidence such as electronically-recorded testimony is introduced, since it may deny hisright to cross-examination or the opportunity to practiseother rights of defence. For this reason, Hungary consid-ers that article 46 must be reworded in order to protectfully the rights of both the accused and the victim.


50. Hungary agrees entirely with the provisions con-tained in article 48, which deal with the evaluation of evi-dence. Hungarian law also states that evidence gained byway of illegal means is not admissible in court. However,no provisions in the statute would regulate who can and

cannot be a witness and who can deny testimony. It is ouropinion that in certain cases the witness can be rejected,for instance if he is to accuse himself or a member of hisfamily with a crime. In such a case, testimony cannot beforced. A problem is also caused by the fact that the con-sequences of perjury are not set out.


51. Article 53 satisfies the principle of nullapoena sinelege. The statute allows for the imposition of two penal-ties: imprisonment and monetary fine.

52. Hungary supports the opinion of the Working Groupaccording to which no capital punishment was authorizedby the statute. At the same time, certain doubts remain asto the penal system. Monetary fines are found in all formsof domestic law and are often used. It is doubtful, how-ever, whether monetary fines can be utilized in the eventof a crime under international law. The crimes listed in thestatute are the most serious of all crimes, crimes whichbreach the peace and security of humanity. It would be abit paradoxical to punish the perpetrators of such crimesonly with monetary fines. Our position is that there are nomitigating circumstances which would justify such apenalty.

53. Hungary considers imprisonment to be the basicmanner of penalty in the sentencing practice of the court.We agree with the opinion that the upper limit of impris-onment should be life imprisonment. We are not, how-ever, convinced that a minimum limit should not have tobe established. We do not see the point in sentencing onewho is guilty of a crime under international law to a fewweeks or months in prison. Instead, we should like to seea lower limit of at least six months set forth in the statute.


54. We think the possibility for appeal is vital as a guar-antee. The provisions of article 55 satisfy our expectationsonly partially. As concerns the sphere of those who aregiven the right to appeal, it is our concerted opinion thatthe prosecutor and the defence attorney, in the interests of,but separate from, the convicted person, should be giventhe right to appeal. Hungary also considers it necessary toregulate that if there is an appeal only by the defence, thetribunal of second resort should not be allowed to handdown a verdict any more serious than that which washanded down in the initial trial.

PART 6 (INTERNATIONAL COOPERATION ANDJUDICIAL ASSISTANCE)

55. Part 6 of the statute discusses a fundamental ques-tion from the point of view of the functioning of the tribu-nal. International cooperation and judicial assistance is akey question because practical work cannot even be con-sidered without the proper cooperation of the States con-cerned. Hungary agrees with most of the provisions ofpart 6 regarding judicial assistance and we consider theseprovisions realizable. We do, however, feel that those arti-cles which refer to extradition and arrest for surrender


need to be re-examined. It may not be undesirable toundertake an examination which would collect and reflectthe positions of the States.

56. The critical point of every court proceeding is theenforcement. This is especially true in the case of theinternational criminal court, which, by its very nature,does not have an apparatus for enforcement. Article 65contains a unique provision which would oblige Statesparties to recognize the judgements of the court. Althoughthis may cause problems with some of the States parties,Hungary would like to indicate that with only minimalamendments, Hungarian criminal law will give effect tothe requirements of article 65.

CONCLUSIONS

57. It goes without saying that this commentary couldnot deal with all the provisions of the statute. It may alsoappear to some readers that most of the remarks have beenof a critical nature. At the same time it should be empha-sized that the draft statute is an outstanding result of juris-prudence and constitutes a worthy foundation for theestablishment of an international criminal court.

Iceland


Japan

[Original: English][13 May 1994]

GENERAL COMMENTS

1. The system of law enforcement in internationalcriminal law, such as investigation, prosecution and pun-ishment of criminals, has been developed since the Sec-ond World War by obliging States, through the interna-tional law concerned, to make an act a crime undernational law and to ensure that the perpetrator isprosecuted and punished by national courts. However,when we observe the poor situation concerning thepunishment of war criminals so far, it is clear that theabove-mentioned mechanism is not always effective.

2. Japan, based on the recognition that a fair and neutralinternational criminal court, if duly established with thesupport of the international community and in order toprosecute the criminal responsibility of individuals whohave committed crimes under international law, repre-sents the final goal of international criminal law, wishes tobe a supporter of its establishment. It is necessary, on theother hand, that its establishment should pay due consid-eration to the current state of development in internationalcriminal law, States' sovereignty, and the constitutionalrequirements of States. At the same time, the tribunalshould be an organ which represents the highest standardof protection of human rights, based on the resultsachieved by the international community in this field.

3. The following three points should be secured inestablishing an international criminal court:

(a) The general principles of criminal law includingthe principle of legality {nullum crimen sine lege),fairness of the trial and the protection of human rightsshould be respected;

(b) The effectiveness of the court's activities shouldbe assured;

(c) The court should be a realistic and flexible organcomplementary to the existing system.

4. Japan appreciates the draft statute prepared by theWorking Group of the ILC at its forty-fifth session (1993)as a good basis for future deliberations and as a proposalpaying due consideration to the above-mentioned threepoints and to the ILC's basic propositions enumerated inthe 1992 Working Group report.1

5. In order that the tribunal be truly effective, it shouldbe established by a treaty, in which participation by asmany States as possible is essential. It is also importantthat the establishment of the tribunal does not interferewith the system, such as that adopted in the case ofdrug-related crimes in which the existing internationallaw enforcement system has functioned rather well. Inthis connection it is appreciated that the ILC adopts a real-istic approach in which the tribunal, at least at the begin-ning, should not have compulsory jurisdiction, in a senseof jurisdiction ipso facto and without further agreementfrom a State party to the statute.

6. Japan wishes to make some comments on draft arti-cles in the hope of providing some guidance to the futurework of the ILC. The ILC is requested to take into consid-eration these comments, and to give careful revision andelaboration to the current draft articles. Tasks to be com-pleted by the ILC might be difficult ones. However, Japantrusts that the ILC will give successful answers to thesepoints and fulfil the mandate given to it by the GeneralAssembly to complete the elaboration of the statute at itsforty-sixth session. Japan reserves its right to present fur-ther comments on the future work of the ILC on this item.


Article 2

7. Creation of the tribunal as a judicial organ of theUnited Nations as proposed in article 2 is desirable inorder to secure a solid base and full support of the inter-national community to the tribunal, while there remainsthe technical issue of how to reconcile this objectiveunder the existing provisions of the Charter of the UnitedNations. Since the tribunal is in principle an organ estab-lished by States parties to its statute, it seems more prac-ticable, at the moment, for the Commission to establishthe tribunal as an organ having some sort of a formal link-age with the United Nations by a treaty of cooperation.

Yearbook.. . 1992, vol. II (Part Two), p. 59, annex.


Articles 6 to 13

8. Independence and fairness of the judges and the pros-ecutor is one of the most important elements of the tribu-nal. As for article 13, the measures adopted in its subpara-graphs 2,4 and 5 in order to enhance the independence ofthe prosecutor are welcome. On the other hand it shouldbe clearly indicated in the statute that the prosecutor andthe deputy prosecutor may not be nationals of the sameState.

Article 15

9. In relation to the independence of the prosecutor andthe deputy prosecutor, the court should not have theauthority to remove these persons from office. Other sys-tems should be prescribed for such removal, such as bymajority vote of the States parties.

Article 19

10. Rules of procedure and evidence have a direct influ-ence on the rights of suspects/accused. Therefore theyshould not be left to the discretion of the court but shouldbe dealt with more concretely and precisely in the statuteitself.

Articles 22 to 26 and 29

11. The structure of this part of the statute is somewhatcomplicated. Japan, trying not to modify the content, hasreorganized this part to make it clearer. Japan's commentson this part of the statute will consequently make refer-ence to the following new article numbers (in parenthesesare the numbers corresponding to the draft articles of the1993 Working Group).

"The Court shall have jurisdiction over crimes listedin articles I, II and III when such jurisdiction is con-ferred to it in accordance with articles I \ II', III'andX.

A complaint shall be submitted in accordance witharticle Y in order that the proceeding of a specific caseshould be brought before the Tribunal.

ACCEPTANCE OF JURISDICTION BY STATES IN CASES OFCRIMES COVERED BY INTERNATIONAL CONVENTIONS

Article I. List of crimes defined by treaties

(Art. 22)

The court may have jurisdiction conferred on it inrespect of the following crimes:

(a) Genocide and related crimes as defined byarticles II and III of the Convention on the Preventionand Punishment of the Crime of Genocide;

(b) Grave breaches of:(follows the text of article 22 of the Working Group

statute).

Article I'

(Art. 24)

1. JURISDICTION OF THE COURT IN RELATION TOARTICLE I

The Court has jurisdiction under this Statute inrespect of a crime referred to in article I, provided thatsuch jurisdiction has been ceded to it in accordancewith paragraph 2 below:

(a) By any State which has jurisdiction under therelevant treaty to try the suspect of that crime before itsown courts;

(b) In relation to a suspected case of genocide, byany State party to the Convention on the Preventionand Punishment of the Crime of Genocide.

(The Working Group draft statute has a secondparagraph here concerning consent of some States.)

2. ACCEPTANCE BY STATES OF JURISDICTION OVERCRIMES LISTED IN ARTICLE I

(Art. 23)

Alternative A

(a) A State which is a party to this Statute andwhich has jurisdiction over one or more of the crimesreferred to in article I in conformity with the relevanttreaty may, by declaration lodged with the Registrar, atany time cede to the court its jurisdiction over thatcrime/those crimes;

(b) A declaration made under subparagraph (a)may be limited to:

(i) Particular conduct alleged to constitute acrime referred to in article I or

(ii) Conduct committed during a particularperiod of time,

or may be of general application.

(c) A declaration may be made under subparagraph(a) for a specified period, in which case it may not bewithdrawn before the end of that period, or for anunspecified period, in which case six months' notice ofwithdrawal must be given to the Registrar; withdrawaldoes not affect proceedings already commenced underthis Statute;

(d) A State not a party to this Statute which is aparty to the respective treaties concerned may, bydeclaration lodged with the Registrar, at any time cedeto the Court its jurisdiction over a crime referred to inarticle 22 which is or may be the subject of a prosecu-tion under this Statute.

(Alternatives B and C are also eligible in place ofalternative A.)


SPECIAL ACCEPTANCE OF JURISDICTION BY STATES INCASES NOT COVERED BY ARTICLE I

Article II

(Art. 26, para. 2 (a))

Crimes under general international law, that is tosay, under a norm of international law accepted andrecognized by the international community of States asa whole as being of such a fundamental character thatits violation gives rise to the criminal responsibility ofindividuals.

Article II'

(Art. 26, para. 3 (a))

Both the State on whose territory the suspect ispresent, and the State on whose territory the act oromission in question occurred notify the Registrar inwriting that they specially consent or cede to the Court,in relation to that crime, jurisdiction over specified per-sons or categories of persons.

Article HI

(Art. 26, para. 2 (b))

Crimes under national law, such as drug-relatedcrimes, which give effect to provisions of a multilateraltreaty, such as the United Nations Convention againstIllicit Traffic in Narcotic Drugs and PsychotropicSubstances, aimed at the suppression of such crimesand which having regard to the terms of the treatyconstitute exceptionally serious crimes.

Article III'

(Art. 26, para. 3 (b))

The State on whose territory the suspect is presentand which has jurisdiction in conformity with thetreaty to try the suspect for that crime before its owncourts notifies the Registrar in writing that it speciallycedes to the Court, in relation to that crime, its jurisdic-tion over specified persons or categories of persons.

Article X. Jurisdiction conferred to the Court bythe Security Council

(Art. 25)

Subject to article 27, the Court also has jurisdictionunder this Statute over crimes referred to in articles Ior II if the Security Council (under Chapter VII of theCharter of the United Nations) decides that such juris-diction should be ceded to the Court (by a specifiedState).

Article Y. Complaint

(Art. 29)

Any State which has ceded its jurisdiction to theCourt pursuant to articles I', IF, IIP of the Statute withrespect to the crime or the Security Council in the caseof article X may by submission to the Registrar bringto the attention of the Court in the form of a complaint,with such supporting documentation as it deems neces-sary, that a crime, within the jurisdiction of the Court,appears to have been committed."

12. This part is the central core of the statute. The juris-diction of the court is given rise to when the jurisdictioninherent to a State is ceded to the court by the State. Inother words, the statute is based on the ceded jurisdictionprinciple. This is the theory through which the currentinternational criminal law system is best reflected in thesense that it is only States which have and exercise crimi-nal jurisdiction, and this court's jurisdiction is the oneceded from such States and exercised by the court onbehalf of these States. The principle also enables an indi-vidual to be brought before an international court by wayof establishing rights and duties of States (and not of indi-viduals concerned) through a treaty.

13. Although it is apparent that this principle underliesthe statute, it is not expressly stated in its articles, thusleading to a possible misinterpretation of this part of thestatute. It is important that the ILC revises the articles tomake them clearly reflect this principle. The articles reor-ganized in paragraph 11 above might offer a possiblesolution to this question.

14. It is appreciated, on the other hand, that the statuteenables each State to have a free choice whether to cedeits jurisdiction to the court or not, although it is a naturalconsequence which should have been indicated in thestatute that once the jurisdiction is ceded to the court,jurisdiction of the ceding State does not exist any more,or, at least, the court's jurisdiction is preferential to thejurisdiction of the domestic courts of the ceding State.

15. As for the crimes under the jurisdiction of the court,Japan appreciates a flexible and realistic system adoptedin the statute in which the crimes under international lawprescribed by existing treaties are the central core and themain subject of the statute, and, at the same time, thecourt's jurisdiction can be extended, at the request ofsome qualified States, to the crimes under general interna-tional law or crimes under national law, such asdrug-related crimes, which give effect to provisions of amultilateral treaty.

16. According to the statute, three steps must be suc-cessfully accomplished for the court actually to try anoffender: (a) Determination that the court has jurisdictionover a case; (b) The complaint is brought before the courtby some qualified States or by the Security Council;(c) When the accused is not present in the complainantStates or States which have ceded jurisdiction over thecrime to the court, the accused should somehow bebrought before the court. The statute currently prescribesthe first step rather restrictively so that too much burden


would not be put on the third step, an idea which is agree-able to Japan. However, the first step should not be toorestrictive, because the court will never function effec-tively if there are too many requirements to be fulfilled forthe court to have jurisdiction. Japan is of the view that therequirements currently prescribed for the first and the sec-ond steps in articles I'(l), H', III' and Y above (arts. 24,26, paras. 3 (a) and (b) and 29 of the statute) are generallyacceptable and appropriate except for the requirementprescribed in article 24, paragraph 2 of the statute, onwhich its view is expressed in paragraph 22 below.

Article I (Art. 22)

17. It is important that the crimes listed in this article belimited to "crimes under international law", the commis-sion of which constitutes a breach of a fundamental legalinterest of the international community. Therefore, it isnot appropriate to include in this list drug-related crimesincluding those dealt with in the United Nations Conven-tion against Illicit Traffic in Narcotic Drugs and Psycho-tropic Substances for two reasons: one is that drug-relatedcrimes are not "crimes under international law"; the sec-ond is that since an international cooperation mechanismis established for the suppression of such crimes, confer-ring on the court an extensive ability to acquire jurisdic-tion over these crimes is neither necessary nor desirable.

18. Inclusion in this article of the crimes related to inter-national terrorism for which the current law-enforcementsystem under universal jurisdiction is effectively func-tioning should also be looked at again carefully by theILC.

19. New treaties prescribing crimes under internationallaw which will be concluded after the statute is in forcemight have provisions, such as article V of the Interna-tional Convention on the Suppression and Punishment ofthe Crime of Apartheid, referring to, in one way oranother, the possible use of the court's jurisdiction asamong States parties to the statute and to the treaty con-cerned. It would be worth considering an inclusion of anew provision in the statute which could accommodatesuch a use without necessarily going through the reviewprocess of the statute in accordance with article 21. Thisis an idea of how to make best use of forthcoming newtreaties as if they were protocols to the statute valid asamong States parties to the statute and to the treaties con-cerned.

Article I', paragraph 1 (Art. 24)

20. Paragraph 1 (a) refers to "any State which has juris-diction under the relevant treaty to try the suspect of thatcrime before its own courts", a notion which requiresexplanation. Among treaties listed in article I (art. 22),there are some treaties, for example the ConventionAgainst the Taking of Hostages, which, depending on thesituation, confer three types of jurisdiction: (a) in whichestablishment of some types of jurisdiction is discretionalto States parties (art. 5, para. 1 (d)); (b) the primary juris-diction (art. 5, para. 1 (a) and (c)); and (c) the secondaryor complementary jurisdiction which should arise when aState in which the suspect is present does not extraditehim/her to a State having the primary jurisdiction (art. 5,

para. 2). Under these circumstances, it is appropriate tointerpret that "a State which has jurisdiction under the rel-evant treaty to try the suspect" should mean a State underwhose jurisdiction, which was established by its domesticlaws or other means in conformity with the treaty provi-sions, the crime concerned falls. It would be desirable thatthe ILC indicate a clear interpretation of the phrase suchas the one referred to above.

Article I', paragraph 2 (Art. 23)

21. Japan supports the "opting in" system set out inalternative A of the article for the reason that thisapproach best reflects the consensual basis of the court'sjurisdiction and best formulates the flexible approachwhich characterized the basic propositions accepted bythe ILC in its forty-fourth session.

Article 24, paragraph 2

22. Paragraph 2 of article 24 should be deleted for thefollowing reasons:

(a) Generally speaking, State practice shows that thereis no need to ask for the consent of other States concerned(such as the State of nationality of the suspect or the Statewhere the crime was committed, as the case may be) for aState to exercise its criminal jurisdiction. Taking intoaccount this practice, and since the court's jurisdiction isthe one ceded from a State which originally had suchjurisdiction over a specified crime, it is inappropriate toput additional and heavier requirements for this court toexercise jurisdiction than for a State.

(b) The court's raison d'etre would be seriously jeop-ardized, if the court could not acquire jurisdiction whenthese requirements would not be satisfied.

(c) The interest of a State to protect its own nationalscannot be a sufficient reason for preventing the court fromacquiring jurisdiction (i.e. the first step as explained inpara. 15 above), due to the reason described in (a) above.When the suspect is present in the State of his/her nation-ality which has not consented to the court's jurisdiction,the success or failure of the proceeding of the tribunaldepends not on whether the court's jurisdiction could beclaimed for the case (i.e. the first step) because jurisdic-tion should be claimed without the consent of the State ofnationality, but on whether the transfer of the accusedfrom his/her State of nationality to the court (i.e. the thirdstep as explained in para. 15 above) can be successfullyaccomplished. (Japan might review its position on thisparagraph if its comment on art. 45 (see paragraph 29below) is not taken into account by the ILC.)

Article X (Art. 25)

23. This article is important because it enables the Secu-rity Council to make use of the tribunal instead of creatingan ad hoc one. Japan is concerned that an expressionwithin this article, "on the authority of the Security Coun-cil", is not very clear. Since the statute is based on theceded jurisdiction principle, it would be natural toconsider that this article prescribes a case in which theSecurity Council, based on the measures taken under


Chapter VII of the Charter of the United Nations, decidesthat jurisdiction of a specified State should be ceded to thecourt. If the ILC wishes to include in this article thepossible acquisition of jurisdiction by the court throughmeasures of the Security Council taken under Chapter VIof the Charter of the United Nations, Japan requests thatthe ILC will give prudent consideration to the appropri-ateness of the idea and to the possible relationshipbetween the court's jurisdiction and that of domesticcourts in such a case.

24. It is also necessary to consider who, in the casedescribed in this article, can bring the complaint inaccordance with article Y (art. 29); should it be limited tothe Security Council or can it be extended to other quali-fied States?

Article II (Art. 26, paragraph 2 (a))

25. The definition of this category of crimes should bestudied further. The principle of legality requires that thecomponents of crimes and the relevant penalties shouldbe defined clearly. The ILC is requested to work out a pos-sible solution for this principle to be abided by for this cat-egory of crimes, for example by providing in the statute alist of crimes, if any, which fall into this category. In addi-tion, these crimes can be punished only when committedafter the statute is in force.

Article 28

26. In order that the principle of legality is strictlyabided by, things such as components of crimes, relevantpenalties, applicable defences, extenuating circum-stances, statute of limitation and complicity should bedefined clearly. If the ILC wished to dispense with includ-ing such definitions in the statute itself, it would be nec-essary to have recourse to national law for that purpose,since international criminal law is sometimes silent aboutthem. National law, in that case, cannot be a mere subsid-iary source, but should be one of the primary sources ofapplicable law.

27. Further study should be done by the ILC into whichnational law is applicable in a specified case or situation.One idea might be to apply the national law of the Statewhich has ceded its jurisdiction to the Court. The applic-ability of the national law of the State where the crime hasbeen committed might also be worth considering.

Article 45

29. An important character of the ceded jurisdictionprinciple is that even when the court acquires jurisdictionceded to it by a certain State, it does not affect the juris-diction that other States have over the same crime. Fromthis point of view, paragraph 1 of article 45 is not appro-priate because if, due to this provision, domestic courts ofStates which have not ceded their jurisdiction to the courtwere prevented from trying (exercising their jurisdictionover) the person who has already been tried under thisstatute, it would have the same effect as if they had cededtheir jurisdiction to the court. Therefore, this paragraphshould apply only to the domestic courts of States whichhave ceded jurisdiction to the court, and it would beappropriate that other courts are merely obliged to takeinto account the extent to which any sentence imposed bythe court on the same person for the same act has beenserved. Japan believes that this approach is not contrary toparagraph 7 of article 14 of the International Covenant onCivil and Political Rights.

Article 53

30. As for the penalties to be imposed, it is very impor-tant that national law to be specified shall be applied bythe court within the framework set out by the internationalstandards (see also Japan's comment on article 28 inparagraph 25 above).

Article 58

31. Concrete references should be made, following theexamples shown in articles 33 and 63, to the judicialassistance by States parties to the statute which have notaccepted the Court's jurisdiction over a crime and byStates not parties to the statute. Especially if such Stateshave jurisdiction over the crime under the relevant treaty,it is possible for these States to conduct an investigationof the crime. It is important that efforts be made, as far aspossible, to provide the tribunal with information and evi-dence so collected by these States. It is also desirable thatthe judicial assistance and the surrender of the accusedfrom such States to the tribunal should be consideredequal to, and should as far as possible have the samemechanism as, the ones being practised between States.

Article 63

Article 41

28. As for the language within brackets in subparagraph(a), Japan is of the view that, even if a State party to atreaty does not enact a domestic law to give effect to thetreaty's provisions, it is by no means contrary to the prin-ciple of legality for the court to punish a crime concernedon the basis of the treaty, when the treaty is promulgatedafter ratification or accession and the treaty provisions areclear enough to be applied in place of national law.

32. As for paragraph 3 (c), it is important that States par-ties should endeavour to consider the request from the tri-bunal for surrender in accordance with the laws con-cerned of the requested States parties at least as if it werea request from a State. In this connection, it would be use-ful to mention in the statute that if a State party whichmakes extradition conditional on the existence of a treatyreceives a request for extradition from the tribunal withwhich it has no extradition treaty, it may, if it decides toextradite, consider this statute as the legal basis for extra-dition in respect of crimes concerned.


Kuwait

[Original: Arabic][3 August 1994]


Article 2 (Relation of the Tribunal to the United Nations)

1. Two formulations are given for article 2. In the first,the tribunal would be an organ of the United Nations andin the second it would be linked with the United Nationsas provided for in the statute. The first version wouldrequire amendment of the Charter of the United Nationsto permit the tribunal to be regarded as a United Nationsorgan, while if the second were adopted it would sufficefor a kind of link to be established with the Organizationsuch as a treaty of cooperation along the lines of thosebetween the United Nations and its specialized agencies,a separate treaty providing for the election of judges bythe General Assembly. The tribunal, as a judicial organ ofthe United Nations, would thereby acquire the necessaryauthority and permanence. The second formulationshould be accepted for the reasons given and because itwould accelerate the adoption of the statute. The first ver-sion, on the other hand, might require amendment of theCharter and this would be difficult in practical terms.


2. Article 9 states that the judges shall be independent,that they shall not engage in any activity which interfereswith their judicial functions or affects their independenceand that in case of doubt the court shall decide. Obviously,what is meant is that the court shall decide the matter ofwhether these conditions are met with respect to thoseelected judges of the tribunal. The word "therein" shouldtherefore be added to the end of the article in order toclarify its meaning. The question then remains of how thecourt will ascertain that the aforesaid conditions are metwith respect to those elected for appointment to the tribu-nal at the time of their nomination and while the court hasyet to be formed. The court will be formed of those self-same judges, and its formation will thus follow theirappointment.


3. Paragraph 1 states that judges shall not participate inany case in which they have previously been involved inany capacity whatsoever, or in which their impartialitymight be open to doubt on any ground, including anactual, apparent or potential conflict of interest. Clearly,the term "impartiality" is not intended or is simply a typo-graphical error, since what is meant is the existence of asuspicion of partiality by the judges and not the opposite.The prefix "im-" should therefore be deleted in order toremove the confusion.

4. The disqualification of judges in any case in whichthey have previously been involved in any capacity what-soever, or in which suspicion of partiality might arise onany ground, apparent or potential, as worded, extends of

course to all previous expressions of opinion on the caseof whatever kind, e.g. acting as prosecutor or deputy pros-ecutor, participating in the investigation of the case in anyway or in any capacity or appearing with the accused asdefence lawyer in any pre-trial investigation.

5. Paragraphs 3 and 4 state that the accused may alsorequest the disqualification of a judge under paragraph 1,that any question concerning the disqualification of ajudge shall be settled by a decision of the absolute major-ity of the chamber concerned, that the chamber shall besupplemented for that purpose by the president and thetwo vice-presidents of the court and that the challengedjudge shall not take part in the decision.

6. Since it is possible that the body so formed after theexclusion of the judge or judges challenged might consistof an equal number of judges, paragraph 4 of the articleshould be amended to stipulate that any question concern-ing the disqualification of a judge shall be settled by adecision of an absolute majority of the chamber con-cerned and that in the event of a tied vote the side onwhich the president has voted shall prevail. A para-graph 5 should be added to the article placing a limit onthe number of judges whose disqualification the accusedmay request for any reason—with the exception of dis-qualification on grounds of previous participation in anycapacity whatsoever in the case—so that abuse of theright of challenge by the accused does not create a situa-tion where there is an insufficient number of judgesqualified to decide on the charge against him and the trialis thus suspended.


7. Paragraph 1 states that the procuracy shall be com-posed of a prosecutor, who shall be head of the procuracy,a deputy prosecutor and such other qualified staff as maybe required. This means that although other staff areincluded in the composition of the procuracy, the draftdoes not establish procedures for their appointment orspecify what guarantees are accorded to them in the per-formance of their duties in assisting the prosecutor anddeputy prosecutor. The draft does not specify their powersand contains no reference to how they are to be deter-mined, and it does not state whether or not the samerestriction applies to them as is placed on the prosecutorby article 13, paragraph 7, namely that he shall not act inrelation to a complaint involving a person of the samenationality.


8. Paragraph 2 states that where the prosecutor is found,in the opinion of two thirds of the court, guilty of provedmisconduct or in serious breach of the statute, he shall beremoved from office. The commentary on the articlestates that one member of the Working Group had foundit strange that the prosecutor could be removed by anorgan different from that which had elected him andthought that this might compromise his independencebefore the court. We agree with this view and considerthat the prosecutor should be removed by the organ that


elected him and not by the court. According to article 16,paragraph 4 (Privileges and immunities), of the statute,the court may not, in order to ensure his independence,revoke the immunity of the prosecutor. How then can it beallowed to decide on his removal from office?


9. Article 19 states that the court may, by a majority ofthe judges and on the recommendation of the bureau,make rules for the conduct of pre-trial investigations, theprocedure to be followed and the rules of evidence to beapplied in any trial and any other matter necessary for theimplementation of the statute. The formulation of rulesfor the conduct of pre-trial investigations, for the pro-cedure to be followed and the rules of evidence to beapplied in any trial and for any other matter necessary forthe implementation of the statute is a purely legislative actsupplementary to the statute, and it is therefore not part ofthe function of the judges of the tribunal. Such provisionsshould therefore be incorporated into the statute orannexed thereto so that the judges of the tribunal are obli-gated to apply them in the cases brought before them,which goes against the rules of the tribunal. The rules ofprocedure of the tribunal, however, may be determined byits court.

have the power to refer cases to the court, particularlywhere the Security Council is unable to adopt a resolutionbecause of the use of the veto by one of its five permanentmembers.


13. Article 31 provides that a person may be arrested ordetained under the statute for such period as may be deter-mined by the court in each case, but it does not establisha maximum period for such detention. This is an excep-tional measure on which there must be limits, and it maynot be maintained for such a long time as to become apenalty.


14. It has already been stated that it would be preferablefor the statute of the tribunal to have a binding character.All States that acceded to the statute would thus haveaccepted the jurisdiction of the court and would thereforebe bound by its requests and decisions with regard to theprovisions of articles 24, 26, 29 and article 33, para-graph 2.


10. The place of article 21 of the statute is inappropriate,and we consider that it should be part of the final clauses.


11. Article 23 sets forth three alternatives regarding theacceptance by States parties of the jurisdiction of the courtover crimes referred to in article 22 (List of crimesdefined by treaties). Kuwait supports the adoption of thisproposal as being in keeping with the purpose of elaborat-ing the statute of the proposed tribunal, namely the needto prosecute perpetrators of the crimes within its jurisdic-tion provided that a State party does not declare that itdoes not accept the jurisdiction of the court over one ormore of the crimes referred to in article 22. Such a decla-ration, as specifically stated in article 23, paragraph 3,will not affect any proceedings already commenced underthe statute. It will thus not prevent the completion of thoseproceedings, that is to say the completion of inquiries ortrials that may have commenced regarding any charges orcrimes referred to in article 22 and thus will not preventtheir being brought to trial and the verdicts reached, as thecase arises. That is, such a declaration will affect onlyevents and charges subsequent thereto.


12. Kuwait agrees with the provisions of article 25. Thiswould enable the Security Council to make use of the pro-posed court as an alternative to establishing special tribu-nals. The United Nations General Assembly should also


15. Kuwait agrees with the view, as set forth in the com-mentary to article 37, paragraph 4, that the membership ofthe chambers should be predetermined on an annual basisin order to avoid any suspicion of a particular judge beingselected to consider a particular case.

Article 38 (Challenges to jurisdiction)

16. Our views on article 38 are as follows:

(a) Challenges to the jurisdiction of the court shouldbe restricted to States that have a direct interest in thecase, the criteria for interest in the case, rebuttals andchallenges being those in use under national law;

(b) The question of jurisdiction is an essential matterconcerning which the draft requires the tribunal to satisfyitself and to decide of its own accord that it has no juris-diction if such should seem to it to be the case. Since thedraft gives the accused the right to challenge the jurisdic-tion of the tribunal at any stage, the same right should, byanalogy, be accorded to the State since the reasoning is thesame and because of the grave consequences a chargemay have for the accused or for a State party;

(c) It would be preferable to establish a chamber toconsider pre-trial rebuttals and challenges relating to thesufficiency of the indictment or jurisdiction. Since thebureau of the court concerns itself with referral pro-cedures as a chamber of indictment at this stage, it mayconsider the rebuttals submitted to it. The fact that it is thebureau that issues the indictment does not detract fromthis, because it is above all else a judicial body of whichit is assumed that it does not refer a case to the tribunalunless it has sufficient evidence for the charge.


Article 41 (Principle of legality (Nullum crimen sinelege);

17. Kuwait does not approve of the words "and its pro-visions had been made applicable in respect of theaccused" that appear in square brackets in article 41 (a) inthe light of the principle of the equal criminal responsibil-ity of different individuals irrespective of national law orof whether or not a State party has met its commitment tocriminalize in internal law the acts enumerated in interna-tional treaties.


18. Kuwait is in favour of trial in absentia if the accusedhas been notified but chooses not to appear before thecourt or if the accused has been arrested but escapes.Kuwait therefore agrees with the formulation of situation(c) as given in the commentary to the article for the wor-thy reasons given there and in order to give the in absentiaverdict a deterrent value for the international community,promote the achievement of justice and reaffirm the inter-national rule of law by the punishment of whoever isproved to have committed an international crime. We sup-port the view that judgements in absentia should bevacated if the accused is later apprehended and that heshould be allowed to defend himself in the interests ofjustice.

Article 45 (Double jeopardy (non bis in idem),)


(a) It is assumed that States parties will have approvedthe jurisdiction of the court and that they will thereforeundertake to desist from instituting trial proceedings if thecourt should commence inquiries, so that the accused willnot be brought to trial before two judicial organs at thesame time. In this connection, the draft should address anumber of questions concerning what States partiesshould do with regard to bringing the accused to trialbefore their national courts in the situation where thecourt has commenced investigations, and whether theirhands are tied or they can continue with their proceedings;

(b) Paragraph 2 states that a person who has been triedby another court for acts constituting crimes referred to inarticles 22 or 26 may be subsequently tried under the sta-tute only if the act in question were characterized as anordinary crime. The principle is that a person may not betried again for the same criminal act even if it werecharacterized differently. Hence, if an act is characterizedas aggravated assault a person cannot be retried for thesame act characterized as torture or inhuman treatment.This does not preclude the possibility of bringing anaccused person to trial if he has committed acts thatconstitute an international crime other than those forwhich he has been tried.

20. In another respect, paragraph 2 (6) of the article issufficient to address this question because, whenever thetrial is a "sham" proceeding, it is possible to try theaccused before the court on the crime either as character-ized in the trial under national law or however else char-acterized.

21. If, however, the accused can be tried for the same actwhen characterized as an international crime, then it mustbe stipulated that the international tribunal should takeaccount of whatever penalty has been imposed by thenational tribunal.

Article 50 (Quorum and majority for decisions)

22. Article 37 states that each of the chambers of thecourt shall consist of five judges. In our view, all of thesejudges should attend all of the trial proceedings, includingthe hearings, the deliberations and the rendering of thejudgement, so that the number of members of the chamberis not less than that stipulated in article 37 and is not fivefor one case and four for another, thereby violating theprinciple of equal rights for the accused. Article 50, there-fore, in stating that the presence of only four judges is suf-ficient, is in violation of the foregoing principles.

Article 53 (Applicable laws)

23. The determination of penalties should be part ofinternational penal law and not of a procedural code, anda penalty should be established for each individual crimein conformity with the law concerning crimes andpenalties.

Article 55 (Appeal)


(a) The article does not lay down any precise deadlinefor appeal against the judgement. This has the effect ofallowing a judgement to be challenged at any time,thereby undermining the finality of the judgements of thetribunal;

(b) The Appeals Chamber should have more membersthan the court of first instance, preferably seven;

(c) It should be stipulated that a judge who has parti-cipated in the rendering of the initial judgement shouldnot sit in the appeal proceedings, given that this is a basicguarantee in judicial proceedings.

25. In our view, no separate chamber should be estab-lished to consider appeals, both for reasons of economyand because the number of appeals may not be largeenough to require the establishment of a separate cham-ber. It should rather be formed as needed by judges otherthan those who took part in the judgement contested.

26. Although most constitutions stipulate that citizensor nationals may not be extradited, when States partiesaccept the jurisdiction of the court, the court shares juris-diction with the national courts in considering these cases.This entails an obligation to surrender to it accused citi-zens or nationals in the event the court should so request.


Malta


GENERAL COMMENTS

1. The Government of Malta takes note of and wel-comes the report of the Working Group of the Interna-tional Law Commission which contains a comprehensiveand systematic set of draft articles on a draft statute for aninternational criminal court.

2. The Government of Malta supports the establishmentof an international criminal court. This support hasalready been affirmed by Mr. Guido de Marco, DeputyPrime Minister and Minister for Foreign Affairs of Maltaduring the International Conference for Protection of WarVictims held at Geneva from 30 August to 1 September1993 and during the general debate of the forty-eighthsession of the United Nations General Assembly. Thisposition was reiterated during the Commonwealth Headsof Government meeting held in Cyprus in October 1993.

3. The Government of Malta believes that the relation-ship between the court and the United Nations is crucialboth to the court's establishment and to its long-termviability. Therefore, Malta prefers that the court should bean organ of the United Nations. However, in the light ofthe practical and technical difficulties expounded duringthe debate on this subject, and in particular the contro-versy as to whether such an option would necessitate anamendment of the Charter of the United Nations, Maltacould agree to the establishment of the court by a statutein the form of a treaty entered into by States. If this secondoption is adopted, it would be essential to create, throughappropriate agreements, a close cooperative relationshipbetween the court and the United Nations as this wouldgreatly enhance the court's authority and effectiveness aswell as its universal appeal.


4. Article 4 (Status of the Tribunal) provides for a courtwhich is not a full-time body but which would sit whenrequired. While being aware that such an option is lesscostly and, therefore, more attractive to potential partiesto the statute, the Government of Malta believes that theconsequential weakening of the court caused by the lackof continuity and its diminished independence andauthority might undermine its continued existence. Thepossibility that the president of the court might becomefull time if circumstances so required does little to redressthe problem.

5. With regard to the rest of part 1, which coversarticles 1 to 21, it presents few problems to Malta.

6. Malta shares the Working Group's adoption of theprinciples that judges should not be eligible for re-elec-tion. At the same time it is felt that the 12-year termscould be shortened.

7. Part 2 of the statute (Jurisdiction and applicable law)is a serious attempt to address a series of complex issues.The basic approach adopted by the Working Group to thecourt's jurisdiction ratione materiae is shared by Malta.The compilation of a list of crimes defined by treatiessuch as that found in article 22 can provide the core of thisjurisdiction. In this context, the setting up of an interna-tional criminal court, vested with jurisdiction to try crimesagainst humanity, war crimes, international terrorism andglobal traffic in narcotics, will give an institutional con-cept in dealing with the international dimension of suchoffences.

8. Regarding article 23 (Acceptance by States of juris-diction over crimes listed in article 22), Malta reiteratesits position in favour of a flexible jurisdictional regime.This would encourage a larger number of States tobecome parties to the statute. The net result of both "opt-ing-in" systems (alternatives B and C) achieves the aim ofallowing States that so desire to become parties to the stat-ute to decide over which crimes they would be preparedto accept the court's jurisdiction. The initial presumptionin favour of the lack of jurisdiction of the court in alterna-tive A would probably make this alternative appear lessinhibiting to potential States parties.

9. Note is taken of the fact that the Working Group'sdraft statute separates the establishment of the court fromthe entry into force of the draft code of crimes against thepeace and security of mankind. Any linkage between thecourt and the code could prove detrimental to the earlyestablishment of the court and therefore such linkageshould be avoided.

10. While understanding the logic explained in theWorking Group's commentary to article 25 (Casesreferred to the Court by the Security Council), Malta feelsthat the drafting of article 25 could be improved in thelight of paragraph 2 of the commentary.

11. Malta feels that article 26 (Special acceptance ofjurisdiction by States in cases not covered by article 22),paragraph 2, which provides for the court's jurisdictionover crimes under general international law, may give riseto concerns over the proper application of the principlenullum crimen sine lege, since it is arguable whether suchcrimes are defined with a precision that is acceptable as abasis for criminal jurisdiction. This may cause difficultyfor Malta in the light of section 39 (8) of the Constitutionof Malta which states that:

8. No person shall be held to be guilty of a criminal offence onaccount of any act or omission that did not, at the time it took place,constitute such an offence, and no penalty shall be imposed for anycriminal offence which is more severe in degree or description than themaximum penalty which might have been imposed for that offence atthe time it was committed.

12. This is very similar to article 7 of the Convention onthe Protection of Human Rights and Fundamental Free-doms, which speaks of the same principle in an almostverbatim manner, and article 11 of the Universal Declara-tion of Human Rights, which speaks out in favour of theprinciple. Furthermore, recognition of the jurisdiction ofthe international criminal court may mean constitutionalchanges, as well as extradition treaties with the States par-ties involved and the United Nations. All this necessarily


implies an enormous number of changes in the lawswhich will have to take place.

13. Malta is largely in agreement with part 3 to part 7 ofthe draft statute, which deal, inter alia, with several pro-cedural issues of fundamental importance. It notes withapproval that article 53 (Applicable punishment) does notempower the court to award capital punishment. On theother hand, the possibility, albeit restricted, of holding tri-als in absentia, provided for in article 44 (Rights of theaccused), paragraph 1 (h), should not be included in arevised draft statute since there is little benefit in a purelydeclamatory justice that risks possible infringements ofthe rights of the accused.

CONCLUSIONS

14. Malta looks forward to the early submission by theInternational Law Commission of a revised version of thedraft statute that has been prepared by the 1993 WorkingGroup. Malta believes that the Commission's work on thissubject matter will prove to be a determining factor insuccessfully meeting the increasing need being felt in theinternational community for the establishment of an inter-national criminal court.

Mexico

[Original: Spanish][15 February 1994]

GENERAL COMMENTS

1. [The Government of Mexico] is not attempting tocomment exhaustively on the report of the InternationalLaw Commission's Working Group on a draft statute foran international criminal court, for its comments referonly to those points relating to the establishment of aninternational criminal court, which it thinks need furtherstudy.

2. Mexico expresses its thanks to the 1993 WorkingGroup for its report. Its in-depth treatment of the relevantissues without a doubt significantly advances the devel-opment of the topic, yet it also brings out the variety ofcomplex problems that have to be dealt with before pro-ceeding to establish such a court.

3. The Working Group must therefore carefully analysethe comments made by the various States both in the SixthCommittee debates during the forty-eighth session of theGeneral Assembly and subsequently.

SPECIFIC COMMENTS

4. The tribunal as proposed in its draft statute isexpected to be a body that will meet only when a case issubmitted for its consideration. The practicality of such amechanism will no doubt attract the general support of theinternational community.

5. As to the manner in which the tribunal is to be set up,it became clear during the last session of the General

Assembly that most States endorsed the idea of a tribunalestablished by an international agreement. Mexico sharesthat view, and once the basic problems relating to theestablishment of an international criminal court areresolved, the body to be instituted should be defined in aninternational treaty under which each State assumes theobligations it deems appropriate, and the observance ofthe principle res inter alios acta is fully guaranteed.

6. How the tribunal is to be linked to the United Nationsis a question that has been approached in different ways.Although the majority recognize the need for a relation-ship with the United Nations system, the manner in whichthis is to be done is still being debated. Since the body inquestion is a jurisdictional one where impartiality andindependence become essential, Mexico believes that therelationship to the United Nations must be limited to anagreement to cooperate. The tribunal must not be con-ceived as an organ of the United Nations, as proposed,within brackets for the moment, in article 2.

7. Articles 19 and 20 of the draft statute give the courtthe power to determine its own internal rules, rules of pro-cedure, rules of evidence and in general all the rules nec-essary for the proper implementation of the draft statute.Mexico believes that power to be too broad. In the inter-ests of legal certainty, it would be preferable if the rulesgoverning the functioning of the court were established inthe draft Statute itself as clearly as possible, leaving thecourt only the authority to determine administrative pro-visions.

8. The observance of the principle nullum crimen sinelege, nullapoena sine lege demands that special attentionbe given to the crimes over which the tribunal is to begiven jurisdiction. Mexico believes that only exception-ally serious international crimes should fall within its pur-view. Consequently, the list of crimes in article 22 (List ofcrimes defined by treaties) must be studied with greatercare, because the fact that a crime is covered under aninternational treaty is not of itself enough to confer juris-diction on the court.

9. Furthermore, the provisions of articles 25 and 26,which would give the Security Council the authority tosubmit cases to the tribunal and give it jurisdiction overviolations of peremptory norms of international law andover exceptionally serious crimes so identified in nationallegislation, in practice create serious legal difficulties thatdemand an in-depth study, in the light specifically ofcriminal law, of the scope of those articles.

10. In establishing an international court, another prob-lem clearly arises in connection with the question ofapplicable substantive law. Article 28 determines that insettling cases submitted to it the court shall apply the stat-ute, the applicable international treaties, the rules andprinciples of general international law and, as a subsidiarysource, any applicable rule of national law. A provision ofsuch scope, which leaves it to the court's discretion todecide which norm to apply, not only opens the door tolegal uncertainty but runs counter to the principle of legal-ity as it pertains to criminal law. Accordingly, progressmust first be made in integrating the rules of internationalcriminal law.


11. On the subject of international cooperation and judi-cial assistance, the machinery set up for bringing theaccused before the court must always take account of theneed at all times to respect the guarantees of due processwhich local laws generally afford individuals. If this con-cern is reflected and met in the draft statute, it will attractgreater support from the international community. Trialsin absentia, dissenting opinions, double jeopardy andappeals are still matters of considerable concern amongthe members of the international community. The estab-lishment of an international criminal tribunal gives rise toquite a few problems. However, Mexico expects that theWorking Group in charge of the topic will succeed in find-ing satisfactory solutions.

12. Only a tribunal whose goal is to guarantee genuinecompliance with the law and in which effectiveness,respect for the law and impartiality combine and comple-ment each other will secure the support of the interna-tional community.

New Zealand


1. In response to the invitation issued by the GeneralAssembly in its resolution 48/31 of 9 December 1993, theNew Zealand Government submits the following com-ments on the draft statute for the establishment of an inter-national criminal court, prepared by the International LawCommission.

COMMENTS ON INDIVIDUAL ARTICLES


2. New Zealand considers that an international criminalcourt should be established by a statute in the form of atreaty among States parties. New Zealand does not see thequestion of the form of the court's relationship to theUnited Nations as a central issue in the draft statute. Thepurpose of the court is the administration of criminal jus-tice for the international community and this importantrole may need to be reflected by giving the court appro-priate judicial status within the United Nations system, asin the case of the International Court of Justice. While wewould be happy accordingly to see the court establishedas a judicial organ of the United Nations, further consid-eration does need to be given to the feasibility and ease ofproceeding in this way within the terms of the Charter ofthe United Nations.


3. New Zealand is aware that the statute of the Interna-tional Tribunal for the Former Yugoslavia provides aprecedent for the procedure for nomination of candidatescontained in article 7, paragraph 2. The court, on the otherhand, will be a permanent rather than an ad hoc body. Anomination process comparable to that in Article 4 of the

Statute of the International Court of Justice, whereby can-didates are nominated by an independent body rather thanby States parties, could enhance the quality of member-ship of the court.

4. Draft article 7 departs from the model provided bythe Statute of the International Court of Justice in a num-ber of respects. In New Zealand's view, the term of officeshould be reduced to nine years instead of 12, to bring thetenure of office in line with that of judges to the ICJ(Article 13 of the Statute of the ICJ).

5. Furthermore, New Zealand is not persuaded by thereasons given for the non-re-election principle. In both theStatute of the ICJ and the statute of the International Tri-bunal for the Former Yugoslavia, provision is made forthe re-election of judges. We would favour reconsidera-tion of this issue, with a view to providing for a shorterterm coupled with the possibility of re-election.



6. A useful distinction has been made between the rulesof the tribunal (art. 19) and the internal rules of the court(art. 20). In New Zealand's view, it is appropriate to havea general rule-making power and for the procedural rulesand rules of evidence to be published. Article 20 as itstands simply provides for the court to regulate its owninternal procedure.


7. New Zealand supports the five-year review provisioncontained in article 21. We should also favour the additionof a provision whereby a review conference shall be heldevery five years. The review option is important in rela-tion to the jurisdictional provisions in part II of the statute.New Zealand can agree that this article may be moreappropriately located in the final clauses of the statute.


8. New Zealand supports article 22 in its current form.It is important for the credibility of the internationalcriminal court that it have a strong consensual base fromthe outset. It follows therefore that the court's broadestjurisdictional responsibilities should relate to agreedinternational crimes in respect of which jurisdictionshould be readily accepted by a large number of States.New Zealand supports the list of treaty-based interna-tional crimes compiled by the ILC. Consideration shouldalso be given to the addition of other especially seriousand important international crimes, in particular aggres-sion and war crimes which do not constitute "gravebreaches" in terms of article 22 (b).

9. New Zealand agrees with the distinction between thetreaties creating "international crimes" and other treatieswhere the crimes are more a matter of national than ofinternational law. New Zealand believes that this distinc-tion should be maintained when consideration is given toadding new crimes to the list in article 22 in future.


10. New Zealand notes that some support has beenexpressed for including certain drug-related crimes,including the illicit trafficking of drugs across nationalfrontiers, the laundering of drug money and the activitiesof narco-terrorists which threaten international peace andsecurity, in article 22. While fully acknowledging thegrave nature of these crimes, New Zealand considers thatjurisdiction of the court over such crimes should be con-sidered only under article 26 as a matter of special con-sent on the part of States.

11. New Zealand notes the difficulty involved in decid-ing whether torture (as contemplated in the ConventionAgainst Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment) also qualifies for inclusion inthe list of crimes under article 22. New Zealand agreesthat a line must be drawn between the two strands of juris-diction (as underlined in the commentary on article 22),but further consideration should be given to the placementof the crime of torture.


12. Ideally, the court would have compulsory jurisdic-tion with States bound simply by virtue of becoming aparty to its statute. New Zealand recognizes, however,that this would be unlikely in practice to achieve thewidest possible support from the international communityfor the international criminal court.

13. On article 23, New Zealand considers that the flexi-bility offered by alternative A may detract from the effec-tive operation of the court. Alternative B is preferred as abetter mechanism for achieving a solid and certain juris-dictional base for the court for the article 22 crimes. Ifalternative B is adopted, New Zealand suggests that para-graph 4 of alternative A (whereby States not parties to thestatute may accept jurisdiction over some or all of thecategories of crimes in article 22) might also be included.


14. It is not clear whether paragraph 2 of article 24applies in the case of a referral by the Security Councilunder article 25. In the absence of compelling reasons tothe contrary, New Zealand believes paragraph 2 shouldapply to an article 25 referral. If it is right that the Stateconcerned should consent to jurisdiction in the circum-stances described in article 24, paragraph 2, it seems rightthat it should also consent where jurisdiction is invokedby a Security Council referral rather than a complainantState with jurisdiction to try the case itself (art. 24,para. 1). However, this would clearly not be the case if theSecurity Council, in referring a case, was acting pursuantto its powers under Chapter VII of the Charter of theUnited Nations.


15. The question of the relationship between the inter-national criminal court and the Security Council is of fun-damental importance. In the light of the primary respon-sibility of the Security Council for the maintenance ofinternational peace and security under the Charter of theUnited Nations, New Zealand agrees that there is a case inprinciple for providing that the Security Council mayrefer cases to the court. A Security Council referral powermay be all the more necessary if investigations are other-wise only to be commenced upon complaint by States.

16. It appears to be envisaged that the Security Councilwould not normally be expected to refer a "case" in thesense of a complaint against named individuals, butwould more usually refer to the court a situation ofaggression, leaving it to the court's own prosecutor toinvestigate and indict named individuals. In NewZealand's view, it should be made clear that article 25, insetting out a right for the Security Council to refer casesto the court, is subject to and does not impinge in any wayupon the scope of the powers granted to the SecurityCouncil under the Charter of the United Nations.

17. New Zealand doubts whether it will be possible toextend this power of referral to the General Assembly,given the different role and powers accorded to the Gen-eral Assembly under the Charter of the United Nations.


18. It is clear that the subject-matter jurisdiction of thecourt should be limited to crimes of an international char-acter. Such crimes can be identified by reference to trea-ties in force. In addition, however, we recognize that theapplication of customary law in this respect has also to beconsidered.

19. New Zealand recognizes that, in principle, the courtshould be given jurisdiction in respect of crimes undercustomary international law. It is however also necessaryin principle for acts constituting international crimes andsubject to the jurisdiction of an international criminalcourt to be specified with as great a degree of clarity andprecision as possible. New Zealand would support furtherelaboration of article 26, paragraph 2 (a) accordingly.


20. New Zealand considers that the prosecutor shouldbe authorized to initiate an investigation in the absence ofa complaint in the case of a crime apparently within thejurisdiction of the court but in respect of which the pros-ecutor has determined that there is no State which is will-ing and able to prosecute. New Zealand notes that broadlycorresponding powers have been given to the Secretary-General under Article 99 of the Charter of the UnitedNations, whereby the Secretary-General may refer mat-ters to the Security Council. It is also noted that means forpreventing the abuse of the extension of the prosecutor'spowers are contained in article 32 (Commencement of


prosecution), paragraph 2, and article 38 (Dispute as tojurisdiction).


21. With regard to paragraph 1 of article 30, NewZealand doubts that the bureau should have power todirect the prosecutor to commence an investigation wherethe prosecutor decides not to proceed. The exercise ofsuch power is likely to be seen by an aggrieved suspect orState as an indication of predisposition or bias and toimpinge upon the prosecutor's independent exercise ofthe functions of the position.22. New Zealand supports the fact that paragraph 4makes provision for guaranteeing the rights of a personduring the investigation phase before the person has actu-ally been charged with a crime.


23. New Zealand agrees with the approach taken inarticle 38 that, consistent with the court's existence as thecollective authority of the States parties, any State partyshould be able to challenge the court's jurisdiction, notonly those States having a direct interest in the case.

Article 41 (Principle of legality (Nullum crimen sinelegeP

24. New Zealand suggests that, rather than retaining thetext contained in square brackets in subparagraph (a),what the statute needs to make clear here is whether theprovision is concerned with treaties in force generally, orwith respect to the State exercising jurisdiction over theindividual concerned. New Zealand assumes the intentionis to cover the latter; this should be clarified.


25. New Zealand suggests that paragraph 1 (b) shouldguarantee directly the right of the accused to conduct adefence or to have the assistance of counsel, and notsimply guarantee that the accused is entitled to beinformed of such matters.26. On the substance of the rights in paragraph 1 (b), itwould be preferable for "means" to be qualified as "suffi-cient means" so that there is no suggestion that an accusedhas to exhaust all his or her means before becomingentitled to legal assistance. It should also be made clearthat such legal assistance is both "adequate" and "free".

27. New Zealand is opposed to trials in absentia, anddisagrees with paragraph 1 (h). The right to be present atone's trial is a fundamental principle which, as the ILCitself notes, is enshrined in article 14 of the InternationalCovenant on Civil and Political Rights. New Zealandfully concurs with the views of the Secretary-General, asexpressed in his report on the establishment of the Inter-national Tribunal for the Former Yugoslavia submittedpursuant to paragraph 2 of Security Council resolution808 (1993):

It is axiomatic that the international Tribunal must fully respect inter-nationally recognized standards regarding the rights of the accused

at all stages of its proceedings. In the view of the Secretary-General,such internationally recognized standards are, in particular, containedin article 14 of the International Covenant on Civil and PoliticalRights.1

It is noteworthy that Article 21 of that Statute does notpermit trials in absentia.

28. Notwithstanding the difficulties involved in bring-ing the alleged offender before the court in certain casesin the absence of international enforcement mechanisms,New Zealand is not convinced by the arguments put for-ward in favour of derogating from the principle that thereshould not be trials in absentia. It is one of the incidentsof criminal proceedings wherever they occur that anaccused person may attempt to defeat the course of jus-tice. It does not follow that an exception should be madeto the principle because the court is dealing with the mostserious international crimes. It may equally be argued thatthe more serious the crime, the more important it is thatfundamental rights and guarantees are maintained.

29. New Zealand does not consider that a conviction inabsentia would constitute any sort of "moral judgement"or sanction. It is more likely that such judgements couldbe regarded as placing the international court above thelaw, and undermining the credibility of the court to actimpartially and within established human rights norms.New Zealand also does not consider that the principle canbe respected by circumscribing the situations in whichexceptions may be entertained. In New Zealand's view,the principle must be adhered to, consistent with existinginternational human rights law.


30. New Zealand is in principle opposed to any deroga-tion from the principle of non bis in idem. We note thatarticle 45 has been drafted carefully such that the court'srole can be regarded as serving more in the nature of anappellate or review function vis-a-vis national courts. It isalso noted that article 45 is modelled closely on article 10of the Statute of the International Tribunal for the FormerYugoslavia, and that the circumstances in which it appliesare exceptional. Whether, however, paragraph 2 (a) ofarticle 45 is appropriate in this context, given that thejurisdictional base of the court will be much broader thanthe International Tribunal for the Former Yugoslavia, is amatter for further consideration.


31. With reference to paragraph 2, New Zealand sup-ports provision for a dissenting judgement at firstinstance. It would be wrong in principle to prevent judgesfrom expressing their views. It would also put the court ona different and inferior basis to both the ICJ and the Inter-national Tribunal for the Former Yugoslavia in thisrespect. Dissenting or separate opinions would also bevery important to the jurisprudence of the court and toboth the defendants who chose to appeal convictions andto appeals chambers when considering whether to over-turn convictions.

S/25704, para. 106.



32. This article is based substantially on article 29 of thestatute establishing the International Tribunal for theFormer Yugoslavia. New Zealand notes that a number ofpoints will need to be addressed by States parties whenenacting their requisite domestic legislation pursuant tothis article. Consideration might therefore be given toother matters which are important to countries in terms oftheir domestic law. Such matters include whether it isenvisaged that there could be grounds on which a requestfor assistance could be refused, who bears the cost whensubstantial assistance is given, and the exercise of com-pulsory powers within the limits available to domesticlaw-enforcement authorities.


33. Consideration should also be given to making pro-vision in paragraph 3 of this article for requests to includethe following elements:

(a) Details about the form in which documentaryassistance (evidence) is to be supplied. It may need to bein a particular form to be admissible later in the court;

(b) A statement about the court's wishes concerningconfidentiality and the reasons for confidentiality where itis required;

(c) The desired time-frame for compliance.

Article 63 ( Surrender of an accused person to theTribunal)

34. Further to paragraph 6, New Zealand considers thatthe power of delay in paragraph 3 should be extended toinclude persons who are mentally disordered (insane) ortoo ill to travel and face proceedings.

CONCLUSION

35. Several provisions in the draft statute touch on theinterrelationship between national courts and nationalprocesses on the one hand and the international criminalcourt on the other in respect of the crimes at issue. Con-sideration should be given to making a suitable reference,perhaps in the preamble to the statute, to this relationshipand to the respective roles and complementarity of thenational and international processes.

Nordic countries


GENERAL COMMENTS

session of the General Assembly,1 the International LawCommission should be commended for its preparatorywork on this draft statute for an international criminal tri-bunal. The establishment of an international criminal tri-bunal is a project of the utmost importance to the interna-tional community. The task is difficult and sensitive, butcertainly achievable. The spirit of cooperation in whichStates have discussed the issue recently is encouraging.

2. In the following, the Nordic countries present theircomments on the draft articles, as well as on specificquestions referred to in the commentaries. As a generalpreliminary observation, it should be pointed out that theprocedural aspects of the statute should not be left to gen-eral principles, but should be as specific as possible.

COMMENTS ON THE RESPECTIVE ARTICLES

PART 1: ESTABLISHMENT AND COMPOSITION OF THETRIBUNAL


3. The two draft alternatives found in this article haveno bearing on the tribunal's independence. The Nordiccountries do have a clear preference for the tribunal as ajudicial organ of the United Nations. The tribunal must beempowered with a clear United Nations mandate, in orderto maintain its permanence and legitimacy. In addition,this would give the tribunal more widespread acceptance,and no separate bureaucracy with, for example, a standingcommittee would be needed. Among possible models thatmight be considered in this connection are arrangementssimilar to those made for the establishment of the UnitedNations Administrative Tribunal.

4. Should, however, the tribunal not become an organ ofthe United Nations, it is nevertheless necessary to ensurea formal linkage to the organization. One possibilitymight be to consider paragraph 9 of General Assemblyresolution 47/111 of 16 December 1992. In that resolu-tion, the General Assembly provided for arrangementsconcerning the bodies established under the InternationalConvention on the Elimination of All Forms of RacialDiscrimination and the Convention Against Torture andOther Cruel, Inhuman or Degrading Treatment or Punish-ment.


5. The Nordic countries wish to stress the significanceof ensuring that the prosecutor be given an independentrole in relation to the tribunal.


6. According to this article, judges who have beenelected to fill a vacancy may sit consecutively for a longerperiod of time (16 years) than judges who have been

1. As expressed in the Nordic statement on this item inthe debate of the Sixth Committee during the forty-eighth

1 See Official Records of the General Assembly, Forty-eighth Ses-sion, Sixth Committee, 26th meeting.


elected through the ordinary process. This may be consid-ered inadvisable, and the wisdom of such a permittedservice ought to be reviewed.

Article 10 (Election and functions of President andVice-Presidents)

7. The bureau should be primarily assigned administra-tive duties. Should other duties be conferred, the risk ofdisqualification arises. Such a system might lead to avague distribution of power within the tribunal. It mustfurthermore be noted that all steps in the decision-makingprocess of a case should be the responsibility of the perti-nent chamber and never of the bureau.


8. It is vital that the tribunal exemplifies a non-partisanstance in all cases, something which causes this article tobe important for the totality of the rules pertaining to thetribunal. The possibility of clarifying what types of situa-tions merit disqualification should be considered. Onemay here note that article 37 (Establishment of Cham-bers), paragraph 4, deals with precisely this issue inregard to individuals of the same nationality.

9. There is a potential problem where the president or avice-president faces disqualification. As a result, therequirement that such individuals take part should not beseen as necessary. The text should require only the mem-bers of the chamber, with the addition of one memberfrom the bureau.

10. In principle it is inadvisable to limit the right of theaccused to request a competency review of a judge. It fol-lows therefore that there ought not to be a limit on thenumber of judges whose removal can be requested oncompetency grounds. This is important in order to main-tain a non-partisan appearance, which is essential forensuring a continued and unassailable legitimacy for thetribunal.

Article 13 (Composition, functions and powers of theprocuracy)

11. Legal safeguards require that there must also berules of disqualification for the procuracy. In addition, arule should be included requiring different nationalitiesfor both the prosecutor and deputy prosecutor.


12. It should be determined whether income receivedfor service by those listed under this article should not besubject to tax. As most of these positions are part-timeduties, it might be argued that such immunity is not calledfor.

13. In paragraph 4, it is important that the deputy pros-ecutor be considered equal to the prosecutor in regard toprivileges and immunities. This section of the articlecould therefore end with "other than the acting Prosecu-

tor". As a result, the judges should not have the opportu-nity to revoke an acting prosecutor's immunity.

Article 17 (Allowances and expenses)

14. A determination should be made as to whetherjudges' receiving a salary derived from other non-tribunalduties might provide a problem for their independence.


15. A framework for rules of evidence and procedureshould be found within this statute, i.e. basic rules of evi-dence and procedure. Such a framework would thus becomplied with in the more detailed rules which the tribu-nal will adopt after its establishment.

16. The suggestion that the various chambers shouldhave the possibility of developing rules of procedure isacceptable, provided such rules have not been otherwiseadopted by the tribunal/chambers. One must stress herethat requisite uniformity of rules amongst the chambersshould be maintained.


17. Reliance on State consent during the various stagesof procedure does not create unnecessary obstacles forbringing to justice persons who have committed crimescovered by the statute. The Nordic countries have somehesitation about the rather complicated system of strandsof jurisdiction and various categories of crimes set forthin articles 23 to 26. This type of system has the potentialto lead to procedural difficulties. Furthermore, it is vitalthat the statute avoid any possibility of jurisdiction shop-ping by States.

18. Of the two proposed "strands" of jurisdiction, theNordic countries are critical of the second strand (arts.26-27), which they suggest should be deleted. Article 26is particularly vague. In addition, it is suggested that aclarified presentation of the complex rules should befound in the first strand (arts. 22-24).

19. Should the above suggestion be adopted, it might beadvisable prior to article 22 to add the following as anarticle 21 bis:

"The Court has jurisdiction under this Statute inrespect of crimes referred to in article 22, provided thatits jurisdiction has been accepted in accordance withthe provisions in articles 23-24."

As a result, article 24 might need to be slightly amended.


20. Giving priority to treaty rules which are as far aspossible part of international customary law serves thepurpose of predictability and assessing individual respon-sibility for serious crimes, thereby preventing ambiguity.The Nordic countries are therefore gratified to see theenumeration of the serious crimes in this article, as these


States continue to maintain the view that the tribunalshould be limited to serious crimes against mankind.

21. It may be advisable that certain rules be draftedmore specifically, and that jurisdiction is limited to acts ofparticular gravity. Hence, the jurisdiction drafted in thisarticle may be unnecessarily broad. Not all of the crimesreferred to have the degree of seriousness which should bedeemed mandatory. In addition, it should be determinedwhether the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment shouldalso be listed.

22. The statute of the International Tribunal for theFormer Yugoslavia appears to be more adequately formu-lated, with reference to its articles 2 through 5.


23. Alternative B is preferred by the Nordic countries.This alternative provides for a presumption of jurisdic-tion, with the possibility of an opting-out declaration by aparty which might wish to exclude the tribunal's jurisdic-tion in some respects. The other alternatives might leadthe tribunal to end up with a very narrow scope of juris-diction, based upon individual declarations of the parties,thereby weakening the statute's general aim.

24. A State that intends to become a party to the statuteunder article 23 should be required to accept some mini-mum basis of jurisdiction, e.g. jurisdiction underarticle 22 {a) and (b).


25. Paragraph 2 of this article requires that the State inwhich the accused is present also accepts the jurisdictionof the tribunal; however the related article for the Interna-tional Tribunal for the Former Yugoslavia2 appears to bemore adequately drafted. Further consensual require-ments to those already in the article should not beappended.

26. Paragraph 1 (b) is formulated in an unnecessarilycomplex way. An interpretation of this section might bethat the tribunal has jurisdiction in regard to genocideonce a State party to the Genocide Convention has con-sented. It is important that this paragraph correlates withthe drafting comments.

27. The limitation in paragraph 2 may not be necessary.It might be sufficient that the territorial State is party tothe statute.

2 See the report on the establishment of an international tribunal forthe former Yugoslavia submitted by the Secretary-General pursuant toparagraph 2 of Security Council resolution 808 (1993) (S/25704),annex, arts. 1, 8 and 9.


28. Although articles 25 and 27 provide a rather largeand undefined political discretion when the SecurityCouncil intends to bring cases before the court, the Nordiccountries support the role which might be played by theSecurity Council according to these articles, with the pro-viso that the Council should not refer to the tribunal spe-cific complaints against named individuals. One mustensure that the discretion given to the Security Councildoes not raise questions about the court's credibility whenthe Council intends to bring cases before the court. Theprinciple of legality (nullum crimen sine lege) wouldseem to require that the modalities and criteria throughwhich the Security Council exercises its proposed func-tions under the statute be more carefully elaborated. It ishowever entirely appropriate that the Council be given aprerogative to refer to the tribunal particular situationsand leave it to the latter to decide whether prosecutionshould be instigated.


29. Should this section not be deleted, the Nordic coun-tries have the following comments and suggestions:

(a) Both of the crimes presented in article 26 arevaguely formulated;

(b) Paragraph 2 (a) provides for the tribunal to judgein accordance with international legal principles not pro-mulgated. This in itself is contrary to principles oflegality, which for criminal prosecution requires writtenlaw (nullum crimen sine lege). In summation, this sectionis too broad from the perspective of the principle oflegality in criminal law, and should therefore be deleted.

3 0. The Nordic countries are sceptical with regard to theregulation of narcotics crimes through this statute, despitefull concurrence with the general conviction that actionagainst international narcotics-related crimes requiresinternational cooperation on the basis of agreements. It isdifficult to perceive this tribunal as constituting the appro-priate forum for cases of this nature. It must further benoted that the mere fact that a crime occurs over interna-tional boundaries cannot be considered sufficient basis formaking this tribunal the appropriate legal forum.


31. In order to maintain consistency it should beexpressly stated that previous decisions of the tribunal arealso considered a source of law. In subparagraph (c),national legislation may also be needed as a primarysource, not merely as a secondary source. This may benecessary, as the relevant treaties do not all provide appli-cable punishment. For instance, article 26, paragraph 2(6), is already based on national legislation.




32. The provision of free access to deposit a complaintwould arguably be functionally counter-productive. How-ever, in addition to States being given the right to filecomplaints, the prosecutor should be given the right tocommence investigation prior to the filing of complaints.A determination should also be made as to whether pro-ceedings might also be instituted on the basis of informa-tion provided by internationally recognized humanitarianorganizations.


33. As stated previously, the bureau should have pri-marily administrative duties. Providing the bureau withthe power to review a prosecutorial decision is difficult toaccept, as it may be problematic in maintaining theimpression of non-partisanship. Such a construction is notcompatible with the independence of the prosecutor, norwith the principle of maintaining the separation of theroles of the tribunal and the prosecutor.

34. Review may be done differently, perhaps by reviewof one of the tribunal's chambers. It must be noted that thechamber in question would thereafter not be deciding thecase.


35. After certain periods of time a review should bemade determining as to whether continued custody isrequired. The practice of the European Court of HumanRights might provide useful guidance in this connection.


36. It is once again important to stress that the bureaushould primarily have administrative duties. First, it isunacceptable that the tribunal's three leading judgesshould decide the validity of the indictment yet also trythe case; and secondly, it is unacceptable that the bureauhas anything to do with the issuance of orders and war-rants. In summation, the bureau should not be any type of"indictment chamber".

37. The Nordic countries strongly suggest thatarticle 32 be deleted. Should however this article beretained, it must be clarified as to what occurs when aprima facie case is not found. Is the suspect thereby foundnot guilty, is the case dismissed, or are further investiga-tions automatically commenced?


38. The use of the concept of bail is unacceptable for theNordic countries. It is furthermore against the legal tradi-tions of many other countries, and should therefore not be

included. Such procuring of the release of a charged indi-vidual is a procedure which most likely would not be real-istic for this tribunal, considering the magnitude of thecrimes in question.

PART 4: THE TRIAL


39. The tribunal's chambers should be established priorto the adoption of rules of procedure, as was indeed doneby the International Tribunal for the Former Yugoslavia.There should be a structured rotation system for thejudges, rather than having the bureau determine whichcases should be decided by the various judges. Referencecan here be made to the process applied in connectionwith the establishment of the International Tribunal forthe Former Yugoslavia. Finally, it is self-evident that arandom distribution of cases must be ensured.

40. Should the above suggestion be pursued, it would benatural that paragraph 4 be transferred to article 11, asthat article concerns disqualification.


41. All member countries should have some controlover the tribunal's competence, not solely countries witha legal interest in the case concerned. This should also bepossible prior to the main hearing. In addition, any furtherdetermination of sufficiency of indictment should not benecessary.


42. It is essential that trials be held in public. Use ofclosed sessions must be better defined and more clearlyregulated. Reference may here be made to the Interna-tional Covenant on Civil and Political Rights, article 14,paragraph 1.


43. The fact that a treaty has entered into force is con-sidered sufficient in maintaining legality. This view isbased on the following two factors: first, the variouscountries will have fulfilled their obligations relating to atreaty at different times; and secondly, a requirement ofincorporation or transformation would debilitate the tri-bunal's legal basis. The various conventions should servethe purpose of providing a description of the offence. A"written law" or catalogue of prohibited actions will thusbe found within the conventions.

44. Should article 26 be deleted, it is logical that thisshould also occur with article 41, subparagraphs (b)and (c).


Article 42 (Equality before the Tribunal)


45. Although these articles present the two importantprinciples of equality before the law and innocence of thedefendant before proved guilty, one should here deter-mine as to whether it ought to be expressly stated that thedefendant has the benefit of the doubt.


46. Considering the matter of legal safeguards, the Nor-dic countries have some hesitation regarding the provi-sion of trial in absentia. Such trials could give rise topolitical as well as legal difficulties which ought to beavoided, thereby precluding any judgement in such asituation.

47. Should it nevertheless be determined that trial inabsentia is essential, it must be noted that such trialsshould only occur in a very limited manner, on conditionthat they be regulated more clearly than is currentlyworded in the draft statute.

48. In regard to paragraph 4 of the commentary to thedraft article, one may question the rationale of having atrial whatsoever, should a person convicted in absentia infact be given merely a temporary judgement.

Article 46 (Protection of the accused, victims andwitnesses)

49. Within this article should be included rules regard-ing the protection and assistance of victims of the crimes,in accordance with certain basic principles set forth in theDeclaration of Basic Principles of Justice for Victims ofCrime and Abuse of Power.


50. There should be more specific evidentiary rules.Such principles as best evidence and free assessment ofevidence should be mentioned at the beginning of thisarticle.

51. There should not be access to appeal decisionsregarding evidence from the main hearing. This wouldcause a division of the proceedings and could also be uti-lized by the parties as a postponing tactic. If the parties aredissatisfied with a decision of the tribunal in this regard,they may refer to article 55, paragraph (1) (a).


52. Dissents are an expressive outlet for legal views inmany legal systems, and should therefore be permitted.Such views would not have any negative effect on the tri-bunal's standing or authority. One may here refer to theEuropean Court of Human Rights, which permits dis-sents.

General Assembly resolution 40/34 of 29 November 1985.


53. The tribunal should be exclusively a criminal tribu-nal. Consequently, the application of civil law-relatedpenalties should be reconsidered, as it is highly doubtfulas to whether such rules should be included. To illustrate,a potential case resulting in a judgement for damages pre-sents a difficult choice of law issues. In addition, there isthe question of how such a judgement is to be executed,something which is unclear.

54. It might be advisable to delete the possibility ofjudgement of fines. Considering the magnitude of thecrimes in question, it is difficult to imagine how fineswould be applicable. Furthermore, it should be noted herethat the penalty of confiscation/seizure is a punishmentfor criminal activity which should be included in the stat-ute, as it is in fact related to criminal punishment. Thisshould be possible in order to provide a compensatingremedy for victims of certain crimes, such as victims ofstolen property.

55. The Nordic countries are pleased that the provisionsregarding punishment do not include the death penalty.

Article 54 (Aggravating or mitigating factors)

56. The possibility that such issues as necessity, self-defence, intent, etc., be added to this article ought to beconsidered, and a determination should be made as towhether or not such inclusion in this statute would presenta basis for antithetical conclusions. One must determinewhether material rules should be coupled with proceduralrules in such a statute or whether the former should befound in a "Code of Crimes".

PART 5: APPEAL AND REVISION


57. The decisions of the tribunal should also be appeal-able by the prosecution. Reference should here be made toarticle 31.


58. It is important that the tribunal's chambers be estab-lished from the outset, and that the composition of thechambers be not chosen by the bureau. A rotation plandetermining which judges should decide appeals is advis-able. Considering the limited number of cases the tribunalis likely to review, the necessity of a separate appealstribunal ought to be looked into.

59. The wording of the statute can possibly be inter-preted as implying that with six judges and a split-votedetermination of 3-3, the court of the first instance's deci-sion would stand. Majority vote ought to be required forany decision against the defendant. A split vote wouldthus negate the guilt of the defendant, thereby observingthe principle that all doubt shall be to the benefit of thedefendant.


Article 57 (Revision)

60. To have the possibility of requesting a re-examina-tion or careful review for correction or improvement of ajudgement is important in most legal systems. The pros-ecutor should also have the possibility of applying forrevision of the tribunal's judgement.



61. It is possible that use of the word "normally" inparagraph 1 might not be necessary, and a determinationshould be made on that issue. It is also important to clarifythat in paragraph 2, the word "communications" mustmean written documentation.

Article 63 (Surrender of an accused person toTribunal)

the

62. An indictment should be sought only from a consti-tuted chamber. Thus, reference to the bureau should bedeleted.

2. With regard to the establishment of the internationalcriminal tribunal, the Government of Panama believesthat the draft articles do not fully meet the aspirations ofMember States of the United Nations for the establish-ment of such a tribunal, because they do not offer guaran-tees of a supranational tribunal, they restrict access interms of working languages (see article 18), and they donot clearly resolve cases in which the acceptance byStates of the court's competence to prosecute crimesagainst the peace and security of mankind involves onlythe consent of the affected State and not of the aggressorState, so that simple non-ratification by the State whichdoes not accept the court's competence can render theimplementation of sanctions ineffective.

3. The foregoing notwithstanding, in view of the workaccomplished by the Commission up to now, the Panama-nian Government trusts that legal mechanisms of under-standing and consensus will be found so that the currentdifficulties and obstacles can be overcome.

4. The Government of Panama is of the view that theelaboration of such rules requires the broadest range ofscientific and political opinions which can harmonize theviews of Member States to the greatest possible extent.

Romania


63. The possibility of serving time in the country wherethe violation was perpetrated merits further careful con-sideration.

64. Should fines be maintained as a penalty in the finaldraft, it is important that the statute contain rules regard-ing the execution of such a judgement, and where suchfunds should be distributed. In addition, it is necessary tohave rules for confiscation/seizure and claims of vindica-tion.

Norway


Panama

[Original: Spanish][8 March 1994]

1. The Government of Panama agrees to the eliminationof international trafficking in narcotic drugs and massiveviolations of human rights from the list of crimes con-tained in the draft Code of Crimes against the Peace andSecurity of Mankind, as these topics are amply coveredby international treaties, and as specialized bodies havealready assigned working groups to them; this is true ofthe inter-American system for the protection of humanrights established by the Organization of American States,as well as the Inter-American Commission on HumanRights and the Inter-American Court of Human Rights.


COMMENTS CONCERNING SPECIFIC ARTICLES

Article 1

1. Calling the body a "Tribunal" is preferable to the ini-tial name of "Court".

Article 2

2. As for the link between the tribunal and the UnitedNations, Romania favours the wording that "the Tribunalshall be a judicial organ of the United Nations".

Article 4

3. We consider the best formulation to be that inarticle 4, paragraph 1.

Article 5

4. Romania also favours the option of making the"Court", the "Registry" and the "Procuracy" the compo-nent parts of the tribunal, thereby constituting an interna-tional judicial system.

Article 7

5. Romania considers it somewhat excessive for judgesto hold office for a term of 12 years. Setting a term of six


years, with possible re-election for a single further term,seems more in keeping with the requirements, for the fol-lowing reasons:

(a) A 12-year term is not to be found in the statutes ofother international courts, the maximum being terms ofnine years (in both the International Court of Justice andthe European Court of Human Rights);

(b) A six-year term, with a possible one-time renewal,would we believe be closer to the spirit of the draft statuteunder consideration, which makes registrars (art. 12) andprosecutors (art. 13) eligible for re-election;

(c) If it is decided to establish a six-year term, the termof the registrar would have to be reduced from seven tofive years (five years being also the term of the prosecu-tor).

Article 22

6. Romania supports the proposed inclusion in the list ofcrimes defined by treaties of actions considered crimes bythe Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment.

Article 23

7. Of the three variants of article 23, we opt foralternative A.

Article 25

8. We consider it appropriate to broaden the category ofsubject matters that may be brought before the court underarticle 25, and to confer the authority to do so upon theGeneral Assembly as well, thus avoiding impasses, par-ticularly in cases where a member of the Security Counciluses its right of veto.

Article 26

9. With regard to the discussions concerning specialacceptance by States of the court's jurisdiction as foreseenin paragraph 2 (a) over crimes not defined as such ininternational treaties, such as aggression, or genocide inthe case of States not parties to the Convention on the Pre-vention and Punishment of the Crime of Genocide, wefind the proposal to deal with this problem also inarticle 25 to be justified. In that case, the Security Counciland the General Assembly (as proposed earlier) wouldhave the authority to submit to the court a crime undergeneral international law, that is to say, under a norm ofinternational law accepted and recognized by the interna-tional community of States as a whole as being of such afundamental character that its violation gives rise to thecriminal responsibility of individuals. Such a submissionwould naturally entail fulfilment of the condition laiddown in article 27, requiring that it must first be deter-mined that the State concerned has committed the act ofaggression which is the subject of the charge.

Slovenia

[Original: English][28 February 1994}

1. The Republic of Slovenia supports the establishmentof an international criminal court on the basis of the stat-ute as its constituent document. That would not neces-sarily require an amendment to the Charter of the UnitedNations. We favour the idea that the court be linked to theUnited Nations, but it would not need to be its organ. Con-sequently, the Republic of Slovenia supports the compo-sition of the tribunal, as envisaged in the draft statute,including the establishment of the procuracy as a separateorgan of the court.

2. Concerning the rules of the tribunal stipulated in arti-cle 19 of the draft statute, the Republic of Sloveniafavours the idea that the basic procedures concerning therules of evidence to be applied in the trial be the subjectmatter of the statute rather than of the rules of the tribunalitself, a position also expressed by some members of theWorking Group. In order to guarantee the complete inde-pendence of the procuracy in relation to the court, theprocuracy should be governed by its own internal rules.

3. The Republic of Slovenia expresses the opinion thatpart 2 on jurisdiction and applicable law is the core issueof the present draft statute. In principle, the Republic ofSlovenia supports the treaty-enumeration approach tocrimes defined by these treaties, as the basis of the juris-diction ratione materiae of the court, as laid down in arti-cle 22. Thus can the application of the principle nullumcrimen sine lege be most properly preserved.

4. Besides, the Republic of Slovenia notes with satisfac-tion that the grave breaches of Protocol I additional to theGeneva Conventions of 1949 and relating to the protec-tion of victims of international armed conflicts of8 June 1977, have been listed among the crimes coveredby article 22. It is true that the two Additional Protocolsof 1977 to the Geneva Conventions of 1949 have not beenas universally accepted as the Conventions themselves.Nevertheless they have been by now ratified by two thirdsof all States and may soon, if not yet, be tested as the cus-tomary source of international humanitarian law. There-fore, the position expressed in the commentary of theWorking Group, that Protocol II of 1977 to the GenevaConventions of 1949 and relating to the armed conflicts ofnon-international character was left outside the scope ofarticle 22 for the reason that it contained no provisionconcerning grave breaches, is not convincing. Protocol IIcontains under its part II very clear provisions as to whichacts are and shall remain prohibited at any time and in anyplace whatsoever and may prima facie be characterized asserious violations of humanitarian law. Drafters of thedraft statute of an international criminal court should bearin mind that the most brutal and massive violations ofhumanitarian law and human rights are one of the mostevident features of armed conflicts which are not of aninternational character.

5. The Working Group decided to put in the first strandof the court's jurisdiction ratione materiae the anti-ter-rorist conventions of a universal character that qualify


specific terrorist acts as grave crimes and oblige their StateParties to act according to the rule aut iudicare aut dedere.

6. Here the Republic of Slovenia suggests that theWorking Group reconsider whether terrorist internationalcrimes can be put on the same footing as war crimes andcrimes against humanity in respect of the gravity of theircriminality. Certain legal distinctions between the twogroups of crimes in question can already be drawn. Wemust bear in mind that the most serious war crimes andcrimes against humanity are not the subject of the statu-tory limitation, as stipulated in the Principles of Interna-tional Law Recognized in the Charter of the Nurnberg Tri-bunal and in the Judgment of the Tribunal1 and put downin the Convention on the Non-Applicability of StatutoryLimitations to War Crimes and Crimes against Humanity.Secondly, terrorist crimes are to be treated in the domesticlegislation as classical non-political crimes in order to fitinto already existing bilateral extradition agreements. Onthe other hand, war crimes and crimes against humanityare to be prosecuted by domestic courts on the basis of theprinciple of universality.

7. The list of anti-terrorist conventions could be sup-plemented with the Protocol to the Convention for theSuppression of Unlawful Acts against the Safety of CivilAviation, which extends the scope of this Convention toterrorist acts committed at international civil airports.

8. The Republic of Slovenia in principle agrees thatdrug-related crimes fall within the subject-matter of thejurisdiction of an international criminal court but theWorking Group should re-examine whether drug-relatedcrimes should fall within the group of crimes whichrequire a special acceptances of jurisdiction according toarticle 26. As a State Party to the Convention against Tor-ture and Other Cruel, Inhuman or Degrading Treatment orPunishment, the Republic of Slovenia supports the posi-tion that this Convention too is included among the trea-ties that fall within the jurisdiction of an internationalcriminal court. Bearing in mind the acceptance by Statesof the jurisdiction over crimes listed in article 22, theRepublic of Slovenia favours the "opting in" system, bywhich the jurisdiction is not conferred automatically forthe States Parties of the statute, but requires the additionalacceptance of a special declaration.

9. As many other Member States of the United Nations,the Republic of Slovenia must express a reservationagainst the territorial scope of the jurisdiction of the courtin relation to its own nationals, who by our Constitutioncannot be surrendered for trial outside the country.

10. As we come to the second strand of the jurisdictionratione materiae of an international criminal court as laiddown in article 26, for which a special acceptance of thejurisdiction is required, the delegation of the Republic ofSlovenia cannot accept the position of the Working Groupthat war crimes and crimes against humanity that are notlisted in the Convention on the Prevention and Punish-ment of the Crime of Genocide, nor in the Geneva Con-ventions of 1949 and Protocol I, should be separated fromthe crimes envisaged in the said Conventions and put

1 See Official Records of the General Assembly, 5 th Session, Supple-ment No. 12 (A/1316), pp. 12 et seq., text reproduced in Yearbook. . .1985, vol. II (Part Two), p. 12, para. 45.

under the special acceptance of a jurisdiction clause. TheWorking Group obviously had in mind internationalcrimes which had their basis in the customary interna-tional law, such as the Hague Convention respecting theLaws and Customs of War on Land, and the Regulationsannexed thereto, the Charter of the Nurnberg Interna-tional Military Tribunal, annexed to the London Agree-ment,2 and the common article 3 of the 1949 GenevaConventions, and applying to internal armed conflicts.Here, the ILC should follow the approach of the Statute ofthe International Tribunal for the Former Yugoslavia,which unconditionally covers the said crimes under itssubject matter jurisdiction.

11. Predetermination of the act of aggression by theSecurity Council as envisaged in article 27 of the presentdraft statute is, in the opinion of the Republic of Slovenia,in contradiction with the principle of independence of thejudiciary and should be reconsidered most carefully bythe Working Group.

12. The provision on the applicable law in article 28 inour view does not suffice to follow the principle nullumcrimen sine lege and should be reconsidered accordingly.

13. In respect of the jurisdiction ratione personae thefuture court will have its jurisdiction over natural personson the basis of individual criminal responsibility. Here, inthe opinion of the Republic of Slovenia, the draft statuteneeds further elaboration with regard to the responsibilityof governmental officials, crimes committed on an orderof a superior and other related questions.

14. The Republic of Slovenia believes that one of thefundamental questions concerning an efficient interna-tional judicial system is the question of how to bring thesuspected or the accused perpetrator of an alleged crimeto the court. In this respect, it must be noted that the Con-stitution of the Republic of Slovenia does not permit atrial in absentia.

15. Pending the trial, the procedural standards as laiddown in article 14 of the International Covenant on Civiland Political Rights must be respected. The Republic ofSlovenia suggests that more care should be devoted tovictims and witnesses at the court.

16. As regards the applicable penalties, the Republic ofSlovenia notes with satisfaction that there is no capitalpunishment envisaged since in Slovenia it is prohibited bythe Constitution. The legal system of the Republic of Slo-venia does not envisage life imprisonment either and itshould be, in the view of the Republic of Slovenia,replaced by a maximum term of imprisonment.

17. The age of the perpetrator of an international crimecannot be taken into account as a sole aggravating ormitigating factor. The Working Group should decidewhether juvenile perpetrators, i.e. under the age of 18according to the well-established international standards,will take a stand at an international criminal court.

18. The Republic of Slovenia does not oppose the pos-sibility that the prosecutor, too, may submit an appeal

2 London Agreement of 8 August 1945 for the Prosecution andPunishment of Major War Criminals of the European Axis (UnitedNations, Treaty Series, vol. 82, p. 279; see particularly p. 289.)


against or apply for the revision of the judgement of aninternational criminal court. However, if these rights aregranted to the prosecutor, it must be carefully foreseen bythe statute of the court, in which case the sentence may bealtered, and whether a more severe judgement may everbe promulgated, should the circumstances of a case sorequire.

19. Finally, the Republic of Slovenia suggests that theInternational Law Commission continue its work on thedraft statute of an international criminal court as a matterof urgency.

Spain

treaties) appears to be acceptable, especially when viewedagainst article 21 (Review of the Statute), which providesfor the revision of the list of crimes.

6. Of the three alternatives presented in article 23(Acceptance by States of jurisdiction over crimes listed inarticle 22), Spain is in favour of alternative B, which pro-vides for the voluntary nature of the court's jurisdictionwithout emphasizing it too strongly.

7. Article 25 (Cases referred to the Court by the Secu-rity Council) is acceptable on the understanding that itwould be directed more towards the denunciation of gen-eral situations than against individuals, and would per-haps provide a good alternative to the establishment of adhoc tribunals.

[Original: Spanish][25 January 1994]

GENERAL COMMENTS

1. The Government of Spain firmly supports the estab-lishment of an international criminal tribunal with generalcompetence to punish international crimes. The existenceof such a tribunal is an increasingly felt ethical and politi-cal need in the international community.


2. There is no doubt that a close link between the tribu-nal and the United Nations is necessary for both practicalreasons and reasons of moral authority. It would thereforebe best for the statute to be adopted by an internationalconference convened under the auspices of the UnitedNations. Moreover, in order properly to establish the rela-tionship between the tribunal and the United Nations sys-tem, appropriate references must be made to the latter sys-tem in the preambular and operative parts of the statute ofthe court. All of this should be without prejudice to thepossible adoption of a treaty of cooperation formalizingand even reinforcing the link.

3. Another question closely related to the previous oneconcerns the number of ratifications of or accessions tothe proposed treaty for the establishment of the tribunalwhich would be necessary for the statute to enter intoforce. The Government of Spain is of the view that thisnumber should be neither too low, since this woulddeprive the tribunal of its necessary representativeness,nor too high, so as not unduly to delay the start of its func-tioning.

4. Articles 22, 23 and 24 of the draft submitted by the1993 Working Group provide that the court's jurisdictionshall be voluntary and not binding. Binding jurisdictionwould no doubt be ideal; however, until such time as thisbecomes feasible, the Government of Spain considers thesystem contemplated in the draft articles to be perfectlyacceptable.

5. Given the importance of this question, the Govern-ment of Spain considers that, in the absence of an interna-tional code of crimes, article 22 (List of crimes defined by

8. On the other hand, article 27 (Charges of aggression)needs to be examined more fully, since its current word-ing not only contradicts in some measure the circumscrip-tion of the tribunal's jurisdiction ratione materiae tonatural persons, but also causes some degree of confusionwith regard to the crime of aggression.

9. The Government of Spain considers that as far as tri-als in absentia are concerned, article 44 (Rights of theaccused) adopts in paragraph 1 (A) a balanced approach tothe arguments for and against the inclusion of a provisionon such trials, by excluding in principle such a possibilitywhile allowing it, on an exceptional basis, in cases inwhich the court, after hearing the submissions and consid-ering the necessary evidence, determines that the absenceof the accused was deliberate. In such a case, and in orderto guarantee the full protection of the rights of theaccused, provision should be made for a new trial if theaccused appears before the court at a later stage.

10. The Government of Spain has certain misgivingswith regard to paragraph 2 of article 53 (Applicable pen-alties), concerning applicable penalties, since the provi-sion does not seem fully to respect the principle of thelegality of penalties (nulla poena sine proevia lege). Inorder to comply with the provisions of article 15,paragraph 1, of the International Covenant on Civil andPolitical Rights ("Nor shall a heavier penalty be imposedthan the one that was applicable at the time when thecriminal offence was committed"), provision must bemade for the court to have, when deciding upon the lengthof a term of imprisonment or the amount of a fine, theduty—and not merely the ability—to take into accountthe penalties provided for in the national law of the Statesreferred to in paragraphs 2 {a), (b) and (c) of article 53.

11. With respect to recourses, the Government of Spainholds the view that provision should be made for recourseby appeal and revision.

12. In addition to the convicted person, the prosecutorshould also be empowered to appeal against a decision orto apply for revision of a judgement. It will therefore benecessary to remove the square brackets in articles 55and 57.


Sri Lanka


GENERAL COMMENTS

1. The Government of Sri Lanka is of the view that aninternational criminal court, in order to command thewidest possible international confidence and acceptance,which it must necessarily enjoy in order to discharge theonerous responsibilities to be entrusted to it, must beestablished as an impartial judicial institution committedto upholding the rule of law and administering justice freefrom any taint of political considerations. The courtwould often be called upon to adjudicate on complex legalissues which might also involve a substantial element ofpolitical sensitivity. It is essential that, in the performanceof its functions, the court pay due regard to the principlesof sovereignty, territorial integrity and political independ-ence of States as enshrined in the Charter of the UnitedNations.

2. The Government of Sri Lanka wishes to commendthe International Law Commission and members of theWorking Group on a draft statute for an internationalcriminal court on the pragmatic and flexible approachadopted in the formulation of the draft articles. However,there are several matters of substantial political, legal andpractical difficulty which need to be addressed and satis-factorily resolved before wide acceptance of the statutecan be assured.


I. SUBSTANTIVE ISSUES


3. The Government of Sri Lanka is of the view that theestablishment of an international criminal court, as eithera principal or a subsidiary organ of the United Nations,would be impractical. It is of the view that there does notat the present stage appear to be sufficient support withinthe international community for an international criminalcourt to be established with the status of a principal orsubsidiary organ of the United Nations and requiring forsuch purpose such a major undertaking as an amendmentof the Charter of the United Nations. However, the Gov-ernment of Sri Lanka recognizes the importance of a for-mal link with the United Nations in order to ensure thatthe institution is vested with the requisite authority for theexercise of international criminal jurisdiction and to gen-erate the confidence of the international community. Thiscould be achieved through the conclusion of a multilateraltreaty under the auspices of the United Nations. Thiswould enable the court to have a close cooperativerelationship with the United Nations, while maintaining aseparate status.


4. It is noted that the term "Tribunal" is used in the draftstatute to include the court, the registry and the procuracy.While appreciating the reasoning of the Working Groupthat for conceptual, logistical and other reasons the threeorgans had to be considered in the draft statute as consti-tuting an international judicial system as a whole, theGovernment of Sri Lanka wishes to stress the importanceof ensuring the independence which must necessarilyexist between the judicial and prosecutorial branches ofan international judicial system.

5. In terms of the statute, the procuracy will be in chargeof the investigations, the institution of proceedings andthe conduct of the prosecution. In relation to these func-tions the procuracy should have independent authority.No doubt the tribunal will have the power to examine andrule on the exercise of such authority at relevant stages.However, the exercise of the functions stated should notbe under the direction of the tribunal.

Part 2 (arts. 22 to 28) (Jurisdiction and applicable law)

6. The Government of Sri Lanka is of the view that theprovisions in part 2 of the draft statute relating to jurisdic-tion and applicable law, which constitute the core provi-sions of the statute, raise a number of legal issues whichrequire further examination by the Commission.

7. The question arises whether there are adequate rea-sons for the separation presently made in the crimesreferred to in article 22 (List of crimes defined by treaty)and those referred to in article 26 (2) (b), i.e. the distinc-tion made between primary and secondary strands ofjurisdiction. The Government of Sri Lanka is of the viewthat the jurisdiction of the proposed court must, at leastinitially, be confined to crimes established under multilat-eral treaties enjoying a wide degree of internationalacceptance. It is noted in this context that the list of agree-ments in article 22 covers such international treaties, andthese define specific acts which are required to be consid-ered as serious crimes and create an "extradite or pros-ecute" regime in respect of such crimes.

8. With regard to the crimes defined under the MontrealConvention on the Suppression of Unlawful Acts againstthe Safety of Civil Aviation, (art. 22 (d)), considerationshould be given to the extension of these provisions toinclude unlawful acts against airports and civil aviationfacilities (as distinct from unlawfiil acts against aircraft)covered under the 1988 Protocol to the 1971 MontrealConvention.

9. The Government of Sri Lanka is also of the view thatthe United Nations Convention against Illicit Traffic inNarcotic Drugs and Psychotropic Substances should bedealt with in article 22. The growing link between nar-cotic trafficking, acts of terrorist groups and the illicitarms trade poses an ever-increasing threat to peace andsecurity within and among nations in many parts of theworld. This phenomenon demands that the internationalcommunity treat these activities as grave crimes underinternational law.


10. Furthermore, the provisions of the above-mentionedConvention, as in the case of those conventions listedunder article 22, create an "extradite or prosecute" regimein relation to drug-related offences and provides for theexercise of extraterritorial jurisdiction in respect of suchoffences, where extradition is not granted. These factorswould justify the Convention's being treated on a par withother multilateral treaties under article 22.

11. With regard to the category of crimes referred to as"crimes under general international law" under article 26,paragraph 2 (a), the Government of Sri Lanka is of theview that these provisions lack the standard of exactitudeand specificity which must be present before vesting thecourt with jurisdiction. The Government of Sri Lankatherefore wishes to reiterate that the jurisdiction of theproposed court must at least initially be confined tocrimes under multilateral treaties.

12. On the question of the court's jurisdiction, it isnoted that the draft statute as presently formulated is con-current and not exclusive, preserving the inherent right ofa State party either to try an accused before its nationalcourts or to refer the accused to the international criminalcourt. The Government of Sri Lanka is in agreement withthis approach which is a logical extension of the "extra-dite or prosecute" regime incorporated in the treatieslisted in article 22. Such a regime could help to fill a juris-dictional vacuum which could well arise where arequested State refuses to extradite its own nationals andthe requesting State clearly has no trust or confidence inthe judicial system of the requested State.

13. Moreover, the concurrent jurisdiction of the court ismade subject to the consent of States, i.e. the State inwhich the crime has been committed and the State ofwhich the perpetrator of the crime is presumed to be anational.

14. The draft statute provides in article 23 for specificacceptance of the "subject matter" jurisdiction of thecourt by each State party to the statute. Of the two alter-natives suggested, the Government of Sri Lanka wouldsupport the "opting-in" procedure in alternative A, whichis in consonance with the consensual basis of the court'sjurisdiction.

15. Article 25 of the draft statute, which provides thatcases pertaining to crimes referred to in article 22 or arti-cle 26, paragraph 2 (a), may be submitted to the court "onthe authority of the Security Council", requires furtherexamination.

16. It is unclear under the present provisions whetherthe "authority" purported to be vested in the SecurityCouncil would be subject to the same conditions regard-ing consent as would apply to the submission of cases tothe court by a State. The vesting of such authority in theSecurity Council alone without it's also being vested inthe General Assembly would prejudice the generalacceptability of the statute and make any agreement onthis issue elusive.

17. The Government of Sri Lanka is of the view that itwould be prudent to restrict, at least in its initial phase, theright to refer cases to court only to States parties. In anyevent, it seems reasonable to assume that if the court is to

be established as a viable institution for the exercise ofinternational criminal jurisdiction, the statute wouldrequire the widest possible adherence of States. Thus acase could be submitted to the court by one or more Statespursuant to a decision taken by the Security Council.

18. The provisions of articles 24 and 26, requiring thatbefore a case is submitted to the tribunal, a State other-wise having domestic jurisdiction over a case or over anaccused in the case present in its territory should agree tothe submission of the case to the court, seem directed tothe objective of ensuring that there is consistencybetween, on the one hand, the proposed obligations ofStates under the statute and, on the other, requirementsunder their national laws and treaties. The validity of suchan objective is unquestionable.

19. However, the present somewhat involved provi-sions of the draft statute raise several issues of substantialcomplexity, which require further examination. Particularmention must be made in this context of the provisions ofarticle 63 on the surrender of an accused person to thetribunal.

20. Article 63 requires a State party which has acceptedthe jurisdiction of the court with respect to a particularcrime to take immediate steps to arrest and surrender anaccused to the court. A State party which is also a party tothe treaty in question which defines the particular crimebut has not accepted the court's jurisdiction is requiredeither to surrender or to prosecute the accused. The articlealso requires that a State party should, as far as possible,give priority to a request from the court for the surrenderof an accused, over a request for extradition from otherStates.

21. The question of pre-existing treaty obligations toextradite devolving on a State party to the statute, vis-a-vis a State which is not a party to the statute, in a situationwhere there is a competing request from the court,requires further examination.

22. The multilateral treaties defining the crimes set outin article 22 create an "extradite or prosecute" regimebetween the States parties to these treaties. Considerabledifficulties, legal as well as political, could well arisewhere a State party to one of these multilateral treatieswhich is not a State party to the statute of the court makesa request for extradition from a State which is a party bothto the statute and to the multilateral treaty. It must also benoted that, except for the Convention on the Preventionand Punishment of the Crime of Genocide and the Inter-national Convention on the Suppression and Punishmentof the Crime of Apartheid, the multilateral treatiesreferred to in articles 22 and 26 did not provide for thesubmission of a case to an international criminal court.Article 63 attempts to extend the "extradite or prosecute"regime by analogy to cover the case of the surrender of anaccused to court.

23. This is a question which requires further examina-tion, paying due regard to the relevant provisions of theVienna Convention on the Law of Treaties (1969) onmodification of treaties. Particular care should also betaken to ensure that provisions of the statute do not preju-dice the legal regime created through bilateral extraditiontreaties.


II. PROCEDURAL ISSUES


24. This draft article refers to the receipt of the com-plaint by the prosecutor. It is recommended that the com-plaint be received by the procuracy division, where adecision will be made as to whether an investigationshould be carried out or not. This is comparable to a situa-tion when information is received in respect of the com-mission of a crime which is cognizable by the court.

25. The discretion granted to the prosecutor to decidewhether an investigation shall be launched or not is in linewith the performance of his duties. However in the matterof the review of his initial decision, the direction to theprosecutor on finding that there is sufficient basis shouldbe to commence investigations, and not to commence aprosecution.

26. At the conclusion of such investigation as directedby the bureau, it will be the duty of the prosecutor todecide whether an indictment should be framed againstthe suspect. A decision of the prosecutor not to prosecutemay be reviewed at the instance of the complainant party.However, it will be advisable for the bureau to have a pre-liminary inquiry without the participation of the partiesconcerned, subject to a hearing in exceptional situations.In the absence of exceptional circumstances, the decisionof the prosecutor not to indict should not be made subjectto review. This observation is made having regard to prac-tical reasons. No doubt the prosecutor should in the exer-cise of his power not to indict act with great caution. Thesystem will not be satisfactorily operative in the event ofa direction to indict when the prosecutor is not willing todo so.


27. This article provides for a review of the indictment.This provision appears to undermine the position of theprosecutor. It also appears to provide for an inquiry withinan inquiry. It also does not appear to coincide with theearlier provisions which provide for a direction issued bythe bureau to the prosecutor to indict.

28. The institution of the prosecutor must be organizedin such a way as to ensure that indictments are forwardedonly in fit and proper cases.


29. It may be provided that objection to the jurisdictionof the court be taken prior to the commencement of thetrial and not after the accused has pleaded to the indict-ment. Challenges to jurisdiction at any other stage resultin loss of time and energy for no purpose. Only those witha direct interest in the case should have the right to chal-lenge the court's jurisdiction.

30. The question of jurisdiction, since it goes to the rootof the matter, should be decided at a pre-trial stage by achamber set up to hear the case.


31. Matters of relevancy, admissibility and value of evi-dence should be left to be decided by the court. There arebasic principles applicable in respect of admissibility ofevidence. Illegal means adopted to obtain evidenceshould be taken into account in considering whether suchevidence should be admitted or not. In certain situationssome evidence may be admitted but the court may decidenot to attach value to such evidence. It should be left to thecourt's discretion to decide for good reason whether or notto admit any given item of evidence.

Article 49 (Hearings)

32. The matter of objection to jurisdiction is dealt within this article. It appears that the objection is to be takenat a stage prior to the accused's pleading to the indictment.This is in accordance with the observations made above.The court will rule on the objection prior to proceedingany further with the trial.


33. It is submitted that dissenting opinions serve a pur-pose and should not be shut out. A majority decision ofthe court will be the decision of the court. Judges musthave the freedom to differ.


34. A time limit should be provided within which anappeal should be lodged.

35. It is accepted that there should be a right of appealagainst decisions of the court. In the exercise of this right,however, it may be provided that there shall not be a rightof appeal where the accused has pleaded guilty to theindictment.

36. It may also be considered whether the right ofappeal granted to the prosecutor could be structured in thefollowing manner:

(a) On a question of law;

(b) On a question of fact alone or on a question ofmixed law and fact with the leave of the court;

(c) On the ground of inadequacy or illegality of thesentence imposed.


37. The procedure in the hearing of appeals has not beenprovided for. Perhaps the rules of the court may make nec-essary provisions. It is suggested that provision be madeto enable the court to receive additional evidence if itthinks necessary at the stage of the appeal.

38. As and when required, an appeals chamber could beconstituted from the same court to hear the appeals.Judges of eminence who are appointed to the court will becompetent to act in the dual capacity.


III. OTHER ISSUES

39. The statute may not provide for all situations relat-ing to investigations, institution of proceedings, indict-ments, trials, sentences and appeals and revisions. There-fore it is suggested that a provision be included for casesnot provided for. Such procedures as the justice of thecase may require, and not inconsistent with the statute,may be adopted in such situations.

40. Another matter for which provision may be made isfor trial in absentia of an accused person. Havingaccepted an indictment, if a person wilfully evadesappearing in court or wilfully does not appear in court toreceive indictment, or having appeared wilfully obstructsthe proceedings of the court or is unable due to ill-healthor other disability to present himself in court, and so on, aprocedure may be stated for trial in absentia.

41. Since the law of evidence will figure prominently inthe proceedings before the court, it may be advisable tohave at least a compendium of the rules of evidence appli-cable in the court.

42. Provision may also be made to enable the court todischarge an accused person at any stage of the case forthe prosecution on the ground that further proceedings inthe case will not result in the conviction of the accused.The court shall record the reasons for doing so.

43. It will also be appropriate to have a provision toenable the court to terminate proceedings at the close ofthe case for the prosecution, on the ground that the evi-dence produced fails to establish the commission of theoffence charged against the accused in the indictment. Ifthe court considers that there are grounds for proceedingwith the trial, the court shall call upon the accused for hisdefence.

IV. FINANCIAL AND OTHER RESOURCES

44. As the provisions of the statute are developed, itwould be important for consideration to be given to thefunds and other resources that would be required for theestablishment and operations of an institution such as thetribunal.

45. An early identification should, of course, be made ofpossible cost-components, e.g. such international institu-tional and other administrative requirements that wouldhave to be permanently in place; and other facilities thatwould have to be available for use whenever necessary(especially, investigatory, prosecutorial, judicial andincarceration).

46. If the tribunal were to be established as a principalor subsidiary organ of the United Nations, the manner offunding (regular budget or voluntary) would, of course,be carefully examined in the budgetary committees of theGeneral Assembly.

47. If the tribunal were to be established by treaty, theprovisions on funding would be some of the most impor-tant issues that would need to be satisfactorily resolved.However, whether such a tribunal be established as a prin-cipal or subsidiary United Nations organ or as a treaty

body, it would be essential (having in view the importanceof securing the objectivity and integrity of the tribunal,and of the public perception thereof) that it should haveindependent financial viability, and, accordingly, that itsfunding should be self-sustaining and not dependent ongovernment contribution.

Sweden


Tunisia


I. RELATIONSHIP OF THE TRIBUNAL TO THEUNITED NATIONS

1. Tunisia supports the option under which the tribunalwould be a United Nations body. This formula would givethis jurisdiction the requisite authority and permanenceand would ensure international recognition of its compe-tence.

II. APPLICABLE LAW

2. Tunisia agrees that the list of international agree-ments and conventions set out in draft article 22 shouldconstitute the basis of the law to be applied by the court.Nevertheless, it believes that the Convention against Tor-ture and Other Cruel, Inhuman or Degrading Treatment orPunishment should be added to this list.

3. Moreover, only a few of the treaties mentioned inarticle 22 define with precision the acts which they pro-hibit. Customary international law, which supplementsthese treaties, is equally powerless to define theseoffences accurately. This situation could be a source ofdifficulty in terms of specifying, at the international level,the elements constituting an international offence so as tocomply with the principle of legality, which is recognizedby all criminal justice systems in the world. Accordingly,it would be advisable to expedite the work on the draftCode of Crimes against the Peace and Security of Man-kind.

III. COMPETENCE

4. Tunisia is of the view that the competence of thecourt should be limited to individuals and, accordingly,should not be extended to States and international organi-zations, as that would be contrary to the principles of sov-ereignty and jurisdictional immunity of States, which arethe subject of a draft convention prepared by the Interna-tional Law Commission.1

1 For the text of the draft articles on jurisdictional immunities ofStates and their property, see Yearbook . . . 1991, vol. II (Part Two),pp. 12-62.


5. Furthermore, pending the completion of the draftCode of Crimes against the Peace and Security of Man-kind, the subject-matter competence (competence rationemateriae) of the court could be defined by special agree-ments between States parties to the statute or by individ-ual acceptance. In this way, the offences in respect ofwhich one or more States recognized the competence ofthe court would be determined with the greatest possibleprecision. Such agreements or individual declarationscould be made at any time.

6. Moreover, the court could be competent to try anyindividual, provided that the State of which he is anational and the State in whose territory the crime is com-mitted accept its jurisdiction (this solution is similar tothat proposed by the Special Rapporteur).

7. Lastly, the rights of the State against whose propertycriminal acts are committed, where such property is situ-ated in territory other than its own, should also be takeninto account (Montreal Convention for the Suppression ofUnlawful Acts against the Safety of Civil Aviation and theProtocol thereto).

IV. NOMINATION OF JUDGES

8. Tunisia suggests that each State party to the statuteshould nominate a judge who possesses the requisitemoral qualifications and competence. Subsequently,judges would be elected to the court by the GeneralAssembly. This formula is designed to ensure the inde-pendence and impartiality of the judges, while strengthen-ing the relationship between the United Nations and thecourt.

V. STRUCTURE OF THE COURT

9. Tunisia supports the Special Rapporteur's proposalregarding the component parts of the court, namely:

(a) The "Court" or judicial organ;

(b) The "Registry" or administrative organ; and

(c) The "Procuracy" or prosecutorial organ.

VI. REFERRAL OF CASES TO THE COURT

10. Contrary to the Special Rapporteur's proposal thatcases should be referred to the court solely in response tocomplaints by States, whether or not they are parties to thestatute, Tunisia is of the view that the right to refer casesto the court should also be extended to internationalorganizations. This solution would ensure better protec-tion of human rights.

VII. INDICTMENT

11. The indictment should be upheld by a procuracy,rather than by the complainant State, as in the second for-mula proposed by the Special Rapporteur, in order toguarantee the neutrality and impartiality of the court.

VIII. INVESTIGATION

12. The investigation should be carried out by the courtitself at a hearing. If the case is too complicated, the courtcould establish a special investigation commission. Thischoice is necessary in order to guarantee the rights of theaccused and the objectivity of the investigation.

IX. FAIR TRIAL

13. With regard to draft article 40, a general principleshould be formulated relating to the enjoyment by theaccused of the basic rights established by internationaltreaty and customary law and recognized by the generalprinciples of law.

X. PRINCIPLE OF LEGALITY

14. Two comments seem to be called for in this connec-tion:

(a) The principle of legality, as set out in article 41,does not clearly mention one of its most important corol-laries, namely, the non-retroactivity of internationalcriminal law. Yet such a reference would appear to beessential, thus implying application of the only factormitigating that principle, namely, the invoking of thoseprovisions of international criminal law which are mostfavourable to the accused, notwithstanding theseriousness of the crimes punished;

(b) With regard to the question of international andnational double jeopardy, it is quite clear that an interna-tional criminal court would be ineffectual if it couldprosecute an individual guilty of a crime against the peaceand security of mankind only if such acts were con-demned by the law of the country of which he was anational. What would happen if countries did not includecertain criminal acts in their domestic legislation? Itmight therefore be possible to omit a reference to the prin-ciple of double jeopardy provided that such crimes werecontemplated in international treaty or customary law.

XI. APPLICABLE PENALTIES

15. Tunisia supports the Special Rapporteur's proposalto leave to the court, in the absence of an internationalcriminal code prescribing penalties, the option of refer-ring to the law of the State of which the perpetrator of thecrime is a national, the law of the complainant (victim)State, or the law of the State in whose territory the crimeis committed.

16. However, the possibility of a crime in whose com-mission several persons of various nationalities partici-pate has not been envisaged. If the court insists on refer-ring to the law of the State of which each of the accusedis a national, this could result in varying judgements andpenalties, which would constitute discrimination in thetreatment of the accused. In order to remedy this situation,a single system of law should be applied, preferably thatof the victim State; this would ensure a measure of homo-geneity in judgements and would strengthen the feeling ofthe victim State that justice has been fully rendered.


XII. REMEDY OF REVIEW

17. The accused should be entitled to the remedy ofreview if a new fact comes to light which was unknown atthe time of trial or appeal and which could have had adecisive impact on the judgement of the court.

XIII. WORKING LANGUAGES

18. Draft article 18 provides that the working languagesof the court shall be English and French. This provision isrestrictive. The official languages of the court should bethose of the United Nations.

United Kingdom of Great Britain andNorthern Ireland


GENERAL COMMENTS

1. The Government of the United Kingdom of GreatBritain and Northern Ireland has made clear its supportfor the project which is being undertaken by the Interna-tional Law Commission to prepare a statute for an inter-national criminal court. While it is very conscious of theserious problems—jurisdictional, procedural, institu-tional, financial and others—which must be solved beforean international criminal court is created, it is convincedthat the attempt to resolve the difficulties is a worthwhileundertaking.

2. The draft statute which was before the Sixth Commit-tee of the General Assembly last year, and which is thesubject of the present comments, is an admirable begin-ning for this difficult task. Because of the expertise andworking methods which the Commission has at its dis-posal, the Government regards it as important that theCommission should ensure that it has addressed and fullydealt with all of the problems of a legal nature connectedwith the setting up of a criminal jurisdiction before anydraft statute is dealt with in the more political arena of anintergovernmental conference. The Government consid-ers in particular that rules of evidence are of such signifi-cance to the proper operation of the prosecution and of thecourt itself—an importance which goes beyond mere pro-cedure—that the rules should be included in the draft stat-ute and should initially be drafted by the Commission.

3. The Government of the United Kingdom of GreatBritain and Northern Ireland considers that any interna-tional criminal tribunal which is established must be ofthe highest authority and the highest legal and moral qual-ity. The Government regards it as necessary that Statesshould enter into a solemn treaty commitment in relationto it, and that it should have the widest possible accept-ance. The tribunal should be given a close institutionallink with the United Nations, to give it a universalauthority.

4. As a final point, the United Kingdom Governmentconsiders it important that the international community

learn from the experience of the other international courtwhich has recently been established: the InternationalTribunal for the Former Yugoslavia .

COMMENTS REGARDING SPECIFIC ARTICLES


5. Leaving aside the question whether it would fallwithin the competence of the General Assembly or theSecurity Council to establish the tribunal as an organ sub-sidiary to them under Article 22 or 29 of the Charter of theUnited Nations, it is clearly inappropriate that the courtshould be subordinate to either of those two bodies. Fur-ther, the statute will impose obligations upon States and itwill be necessary for this to be done in some legally validway. Since the new tribunal will not, unlike the Interna-tional Tribunal for the Former Yugoslavia, come withinthe responsibilities of the Security Council for the main-tenance of international peace and security, it will not bepossible to impose the necessary obligations upon Statesby means of a Security Council resolution, as in the caseof the International Tribunal for the Former Yugoslavia. Itwill therefore be necessary to establish these obligationsby treaty. It is suggested that the statute be adopted byinternational treaty, and it may be useful for the Commis-sion to draft the necessary treaty provisions. The treatycould be negotiated and adopted under the aegis of theUnited Nations. It is also suggested that an institutionallink of some kind with the United Nations be created, notamounting to the establishment of an organ subordinate toone of the principal organs.


6. The Government welcomes the provision that the tri-bunal should sit only when required to consider a casesubmitted to it.

7. The provision in paragraph 2 will need more thought,in relation to status, legal capacity and the personsauthorized to negotiate on behalf of the tribunal, once adecision has been taken as to the relationship between thetribunal and the United Nations.


8. Whatever the prosecutor's office is called in otherlanguages, "Procuracy" is inappropriate in English.

Article 6 (Qualifications of judges)

9. The court is a criminal tribunal. In the Government'sview, it is inappropriate that judges should be appointedwho have had no judicial experience in criminal cases. Inaddition to the qualifications set out in the first sentenceof the article, the United Kingdom suggests it should bemade a condition of appointment that a judge should havehad judicial experience in criminal trials.


Article 7 (Election of judges) Article 21 (Review of the Statute)


10. Consideration should be given to making expressprovision for what is already implicit in article 8 thatvacancies may arise because of the death or resignation ofa judge.


11. Paragraph 3 provides that the accused may requestthe disqualification of a judge. It will be necessary tomake provision for grounds to be put forward by him tojustify disqualification for one of the reasons set out inparagraph 1.


12. In the Government's view, careful considerationshould be given to the qualifications required of the pros-ecutor and the deputy prosecutor, particularly in relationto the following points:

(a) If the prosecutor is to be disqualified from actingin relation to a complaint involving a person of the samenationality, there should be a requirement that the deputyis of a different nationality;

(b) The requirement that the prosecutor and thedeputy have the highest level of competence and experi-ence in the conduct of both investigations and prosecu-tions would give difficulty to many common-law coun-tries where those functions are in separate hands. Thequalifications should be in the alternative. It should be arequirement that either the prosecutor or the deputy be alawyer of several years' seniority.

13. The Commission might consider whether para-graph 3 is sufficiently clearly worded.

14. As regards paragraph 4 of the commentary, the Gov-ernment is of the view that consultation of the bureau onthe prosecutor's staff appointments would not compro-mise the prosecutor's independence, and such a provisionmight appropriately be included.

16. The Government shares the view that this article isbetter placed in the final clauses of a treaty adopting thestatute. The Government doubts whether it is appropriateto refer to the code of crimes against the peace and secu-rity of mankind in the way in which the draft article does.While a generally accepted code will of course have rel-evance to any international criminal jurisdiction which iscreated, it is difficult to frame a satisfactory reference toan instrument which has not yet been adopted, and it maybe preferable not to refer to it at all.

Article 22 (Lists of crimes defined by treaties)

17. As the Working Group notes, part II of the draft stat-ute is the central core of the draft. Articles 22 to 26 laydown two strands of jurisdiction, based on a distinctiondrawn between treaties which define crimes as interna-tional crimes and treaties which merely provide for thesuppression of undesirable conduct constituting crimesunder national law. As regards article 22, the Governmentof the United Kingdom understands and shares the reser-vations expressed by some delegations in the Sixth Com-mittee with regard to conferring jurisdiction upon aninternational court over crimes which were defined withinsufficient precision in the relevant treaties, in respect ofwhich the treaties were drawn up without any idea ofbringing the crimes before an international criminal court,and for which the treaties did not specify any penalties.Nevertheless, the Government of the United Kingdomconsiders that, if an international court is to be establishedunder present conditions, a list of crimes along the linesof those set out in article 22 should form the major part ofits jurisdiction. The Government does however considerthat the list of crimes in article 22 should be examinedagain to ensure that only those treaties which havereceived a very substantial acceptance by the interna-tional community should be included; the criterion ofentry into force is not, in the United Kingdom's view, suf-ficient to qualify a treaty for inclusion in the list. Subjectto this proviso, however, the Government would notoppose the inclusion of the Convention against Tortureand Other Cruel, Inhuman or Degrading Treatment orPunishment.



15. Rules of evidence include matters of considerableimportance which affect the rights of the accused. It isnoted that one or two basic provisions of the rules of evi-dence are included in article 48 and elsewhere in the stat-ute. The Government considers however that the Com-mission should give further consideration to thisimportant subject and should provide draft provisions forthe rules as a whole, to be included in the draft statute.

18. The United Kingdom Government shares the viewexpressed in paragraph 2 of the commentary that theapproach set out in alternative A (the "opting-in"approach) best reflects the consensual basis of the court'sjurisdiction. Conferring jurisdiction on an internationalcourt represents a certain ceding of jurisdiction by indi-vidual States; this ceding is best established by the two-stage process of acceptance of the statute and the separateacceptance of the jurisdiction of the court over specificcrimes in accordance with alternative A.



19. In the Government's view, the Commission shouldalso give consideration to requiring the acceptance of itsjurisdiction by the State in whose territory the offender islocated. That consent will not always be required underthe existing provisions of paragraph 1 (a).

20. The Commission is requested to consider whetherthe drafting of paragraph 1 (a) and (b) is adequate. It isunclear whether all States parties having jurisdictionunder a treaty to try the suspect before their own courtsare required to accept the court's jurisdiction, or whetherthe consent of any one of the States parties to the relevanttreaty is sufficient. The Government assumes that the lat-ter is intended but does not regard this as acceptable, atleast with regard to paragraph 1 (a). The Commission isasked to consider whether, in relation to paragraph 1 (a),the consent of all such States should be required.


21. It is not clear from this article whether the SecurityCouncil may refer cases to the court where the consentsrequired under article 24 or 26 have not been obtained, orwhether it is intended that the court will only have juris-diction in respect of a complaint referred to it by the Secu-rity Council if the relevant States have accepted thecourt's jurisdiction. If the substance of the article is toremain, the Government would prefer the latter view toprevail.

22. The Government is not, however, convinced that theunderstanding of the Working Group expressed in the sec-ond sentence of paragraph 2 of the commentary isadequately reflected in the provision. The Commission isasked to consider changes to articles 25 and 29 to ensurethat the Security Council does not have the powers torefer complaints against named individuals, but only torequest the prosecutor to investigate particular situations.

23. The Commission is asked to consider the inclusionof a provision in this part of the statute requiring thatwhere the Security Council is seized of a dispute or asituation, a case falling within that dispute or situationmay not be referred to the tribunal except with the leaveof the Council.


24. The United Kingdom has grave doubts about thedesirability of all the provisions of this article. As regardsparagraph 2 (a), it is not satisfactory that a criminal courthas jurisdiction over unspecified offences in respect ofwhich there cannot but be uncertainty and controversy. Itis not satisfactory to argue that it will be for the court itselfto determine whether there is the necessary internationalconsensus for the existence of a particular crime: anaccused is entitled, even during the prosecution process,to more certainty about what he is accused of than thisarticle provides; even if the court eventually decides that

the crime is not one "accepted and recognized by theinternational community of States as a whole", he willhave been subject to the prosecution process even thoughnot convicted.

25. The Commission is invited to consider whetherthere are indeed any crimes under general internationallaw of the kind referred to in paragraph 2 (a), and if so, toidentify them expressly in the article.

26. As regards paragraph 2 (b), the United Kingdom isnot in favour of including in the statute crimes undernational law which have not been defined with precisionin an international treaty, such as the United Nations Con-vention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances. Furthermore, the attempt torestrict jurisdiction to "exceptionally serious crimes" isunlikely to be workable: no definition of "exceptionallyserious" is attempted and it is unlikely to be possible toproduce one that would be generally agreed.


27. The Commission is requested to look again at thedescription of national law as a "subsidiary source". Evenif, as the United Kingdom would wish, a decision is takento delete article 26, paragraph 2 (b), national law willoften have to be resorted to by the court. The componentsof an offence (with the exception of genocide), the appli-cable defences and the relevant penalties (subject to theprovisions of the statute) will all be matters for nationallaw. This being so, it is important that the court bedirected to the appropriate national law: the Governmentpresumes that it will be the law of the State (or the juris-diction within that State) where the crime was committed.


28. The Commission is requested to consider whether itwould not be advisable to elaborate upon what supportingdocumentation is required as a minimum to accompany acomplaint.


29. The provision does not specify, in paragraph 1, whatconstitutes a "sufficient basis" for the prosecutor to pro-ceed with the prosecution of a case. Paragraph 5 of thecommentary, and the provisions of article 32, make itclear that the test is the existence of a prima facie case.The government doubts whether the establishment of aprima facie case is a sufficient basis for instituting a pros-ecution. The Commission is invited to consider the prac-tice of States with regard to the institution of prosecutionsin national courts: the Government doubts whether thestandard for a prosecution in an international court shouldbe lower than that required for a national court. In theUnited Kingdom, for example, a prosecution is not insti-tuted unless it is considered that there is at least a realisticprospect of conviction.

30. Paragraph 1 provides that the bureau may direct theprosecutor to commence a prosecution. The Commission


is requested to consider whether a defendant prosecuted atthe behest of the court contrary to the inclination of theprosecutor following a thorough investigation wouldbelieve that he was receiving an impartial and fairhearing.

31. Paragraph 4 (a) provides for a person under investi-gation to be informed that his silence in response to ques-tions will not be a consideration in the determination ofhis guilt or innocence. The Government fully shares theview that there ought to be no question of a person beingconvicted on the basis of silence alone, without other evi-dence. The Government does not, however, regard it as anindispensable element of a fair trial that no considerationat all should be given to whether or not an accused personhas remained silent. In the United Kingdom, the CriminalLaw Revision Committee recommended in 1972 that itshould be possible in certain carefully defined circum-stances for inferences to be drawn, in support of other evi-dence, from the refusal of a defendant to answer relevantquestions; the British Parliament is currently consideringlegislation based on its proposals.

32. The Commission is requested to reconsider thewording of paragraphs 2 and 3, which may be read as sug-gesting that the prosecutor may summon suspects, victimsand witnesses, collect evidence and conduct on-site inves-tigations directly on the territory of States parties and oth-ers, without seeking the cooperation of the State con-cerned. Such powers are, in the view of the Governmentof the United Kingdom, only necessary and appropriate insituations where a State fails in its cooperation obligationsor where its criminal justice system has broken down.Previous recommendations by the Commission clearlyenvisaged that evidence should be collected throughcooperation mechanisms based on international mutuallegal assistance arrangements (but with fewer grounds forrefusal and, of course, no mutuality). The draft statutemight be augmented so as to place legal assistance obliga-tions on States parties whose cooperation is requested bythe prosecutor or the court, and to differentiate betweendifferent degrees of acceptance, rather as article 63 doesfor surrender of suspects.

33. It is therefore suggested that article 30, paragraphs 2and 3, be modified so as to provide that the prosecutorshall have power to request: (a) the presence of suspects,victims and witnesses for questioning; (b) the disclosureand production of evidence, including any documents orexhibits relating to the complaint; and (c) on-site investi-gations.


34. The relationship between articles 31 and 62 (a) onthe one hand, and article 33 on the other, may need furtherthought. Article 31 indicates that a person may be arrestedor detained under the statute while the indictment is stillin preparation, on the basis of the issuance of a warrant orother order of arrest or detention by the court (a provi-sional arrest warrant) and article 62 (a) provides that incases of urgency the court may request provisional arrest.Article 33 implies, however, that States parties' obliga-tions to arrest and detain the subjects of such warrantsarise only after the indictment has been personally noti-

fied to the accused. There are no provisions designed tosecure cooperation in pre-indictment arrest or detention.The Commission may wish to cover this. If it does, how-ever, for human rights reasons it would not be right toallow too long a period to elapse between execution of theprovisional arrest warrant and the notification of theindictment to the accused: the European Convention onExtradition, for example, imposes a 40-day limit.


35. The Government is of the view that it is not suffi-cient to leave to rules of court matters such as details ofthe requirements for the "necessary supporting documen-tation" which must be considered by the bureau before theindictment is affirmed. It is presumed that the phrase isintended to refer either to the evidence, in written formitself, or to a summary. The provision should specify theextent of evidence required and the manner in which it isto be placed before the chamber. It is presumed that theindictment itself will not contain a summary of the evi-dence.


36. The Government of the United Kingdom considersthat five is a good number for the judicial strength of atrial chamber. The Government is of the view that the con-stitution of chambers should be dealt with by the bureauin whatever manner it thinks fit. This is preferable to leav-ing the matter to be regulated by inflexible rules.


37. The Government of the United Kingdom considersthat the view expressed in paragraph 5 of the commentary,that it would be imperative for the accused to be allowedto challenge the jurisdiction of the court before trial,should be acted upon and that the merely institutionalobstacles thought to exist should not stand in the way of asolution's being found. The chamber to deal with the caseshould rule on the question, or if the challenge is madebefore the indictment is confirmed (possibly after the per-son's arrest), a chamber should be made available for thepurpose.


38. The Commission is invited to look again at the pos-sibility of distinguishing different situations for the pur-pose of determining whether a trial should be held in theabsence of the accused; the Government is of the viewthat the question should not be left to decision by thecourt, as provided in paragraph 1 (h). In the Govern-ment's view a trial should not be held in the absence of theaccused unless (a) he has been duly notified and choosesto appear not in person but by means of a legal represen-tative, and (b) the accused has been arrested but escapesafter the trial has begun but before it has been completed.

39. Paragraph 3 deals with the information which is tobe made available to the defence. This is another case in


which the Commission is invited to consider the inclusionin the statute of further details governing the role of theprosecutor and the court. In particular, the explanationsgiven in paragraph 8 of the commentary might usefully beincluded.


40. The Commission is requested to look again at para-graph 2 (<ar), which has a reference to an "ordinary crime".The concept is a very difficult one to define and it may bethat the best course is simply to delete this.

person committing a crime should know what punishmenthe might expect.

45. As regards paragraph 4, the Commission is invitedto consider whether the court should be directed to theorder in which fines or confiscated property should bepaid out. As regards subparagraph (c), it is questionablewhether the provisions referred to in paragraph 4 of thecommentary are likely to be used in practice. It is doubtfulwhether a trust fund is needed at all, and it may be that thetribunal should itself have the power to pay sums ofmoney directly to the victims or to the State of theirnationality expressly for their benefit.


41. Paragraph 1 (a) and (b) refers to the court's havingthe power to require the attendance and testimony of wit-nesses, and to require the production of documentary andother evidentiary materials. In view of the comments onarticle 30 above, to the effect that in practice the mostacceptable and indeed most efficient way of obtainingboth persons and evidence is by requesting cooperationfrom the States parties which will have certain obligationsto assist, it is suggested that it would be preferable to referto the court's power to issue orders for the attendance andtestimony of witnesses, and for the production of docu-ments, etc. The word "orders" is in fact used in the com-mentary. The same point arises on article 48, paragraph 1.


42. The Government draws attention to its comments onarticle 19 above, relating to the desirability of the statute'sproviding further rules of evidence. One matter thatshould be addressed is whether a witness is to have aprivilege against self-incrimination before the tribunal.The question arises whether a witness is, in particular,obliged to answer questions which may place him inbreach of his national law.

43. As regards the point made in paragraph 4 of thecommentary, it is considered that in view of the eviden-tiary difficulties for national courts in prosecuting perjurybefore the tribunal, it would be preferable to address in thestatute the question of giving false testimony before thecourt.


44. Paragraph 2 departs from the previous recommen-dations made by the Commission to the effect that penal-ties should be based on the applicable national law, sub-ject to residual provision for the court to lay downpenalties where none is specified or where the penaltyspecified falls outside international norms. The Govern-ment considers that the Commission should revert to theprevious recommendations. The penalties imposed by theState in whose territory the crime was committed shouldbe the first point of reference and should be followed, sub-ject to the reservations made above. Such an approachwould accord with the generally accepted principle that a




46. The Government is in favour of providing a right ofappeal for the accused. It is of the view, however, thatseven is too small a number for the Appeals Chamber,having regard to the fact that the judges in the AppealsChamber will be of the same rank as the trial judges. It issuggested that an Appeals Chamber of at least nine judgeswould be more appropriate.

47. As regards the possibility of the prosecution's beinggiven a right of appeal, it is considered that any such rightshould be limited to specified grounds of appeal, namelyon a point of law or on the sentence given by the trialcourt. The prosecutor should not have a general right ofappeal.


48. The Commission is requested to consider what"interim measures" might be required.


49. Attention is drawn to earlier comments on provi-sional arrest. In relation to any provisional measures therequest from the court would need to be a formal requestif it is to be acted upon by States. States will be able torespond only in so far as their national laws permit whichmay not, for instance, include preventing the escape of asuspect unless a provisional arrest or arrest warrant hasbeen issued. National laws may also impose special con-ditions for search and seizure of evidence; this is recog-nized in most international mutual legal assistance agree-ments.

Article 63 (Surrender of an accused person to the Tribu-nal)

50. The Government notes that, under paragraph 3 (a),a State party which has accepted the jurisdiction of thecourt with respect to the crime in question is obliged totake immediate steps to arrest and surrender the accused


person to the court. Having regard to the provisions ofarticle 9 (4) of the International Covenant on Civil andPolitical Rights, the Government's view is that theaccused person must have a right to challenge arrest anddetention in the requested State, though the grounds onwhich challenge is possible should be kept to a minimum.The view is taken, therefore, that a State which had takenimmediate steps to arrest the suspect would have fulfilledits obligations even if the suspect successfully exercisedhis right to challenge his arrest and detention.

51. Paragraph 3 (b) refers to a State party which is alsoa party to the treaty establishing the crime in question butwhich has not accepted the court's jurisdiction over thatcrime. The Government queries the obligation to arrest.Arrest may be premature if the national authorities are notready to lay a charge immediately or find, on reviewingthe case, that a charge would not be likely to succeed.

52. Paragraph 5 requires States parties, as far as pos-sible, to give priority to court requests over requests forextradition from other countries. This departs from theCommission's previous recommendation that States par-ties should be free to choose in the case of multiplerequests, but could be offered non-binding guidelines onchoosing, for example suggesting that requests from thecourt are given special consideration. The paragraph 5requirement, moreover, relates to any request under para-graph 2: the requested State might not even have acceptedthe court's jurisdiction over that crime or that category ofcrimes. The Commission is invited to consider deletingparagraph 5. Non-binding guidelines, as originally pro-posed, could however be helpful.

53. Paragraph 6 is, in the Government's view, helpful,as is the recognition of the speciality rule in article 64.

54. Attention was drawn earlier in these comments tothe desirability of an additional article on legal assistance,which would, inter alia, spell out the obligations of Statesparties to comply with requests. It is for considerationwhether obligations, or the same degree of obligation,should be imposed on States parties that have notaccepted the court's jurisdiction in relation to the crime,or the category of crime, in question. It would also seemdesirable for the statute to indicate, even if the list is non-exclusive, the types of legal assistance that may be soughtfrom States parties—as, for instance, in the UnitedNations Model Treaty on Mutual Assistance, article 1,paragraph 2.

Articles 66 (Enforcement of sentences)


55. The Commission is asked to consider whether thestatute should cover the procedures to be followed if aprisoner convicted and sentenced by the tribunal escapesfrom custody.

United States of America


GENERAL COMMENTS

1. The United States of America wishes to express itsappreciation to the 1993 Working Group of the ILC for itsimpressive efforts. As a result, Governments have beforethem a document which provides a useful focal point forexamining the complexities of this topic.

2. These comments are by necessity preliminary, andthe United States Government may wish to provide fur-ther views in the future. Failure to comment on an aspectof the draft statute, however, does not mean that theUnited States either supports or does not support theILC's specific formulation.

3. Although the Working Group's report addressesmany of the concerns shared by the United States andother nations regarding the establishment of an interna-tional criminal court, a number of significant problemsremain. We believe that unless these problems are cor-rected, the court will not make the kind of contribution toworld order the ILC envisions. It is therefore importantthat the ILC take into account the views of States as it con-tinues its effort to create a statute that builds upon, not dis-places, effective national judicial and internationalprocesses.

4. As the ILC continues its deliberations, the Govern-ment of the United States of America urges the Commis-sion to reflect on the following considerations:

(a) An international criminal court should be viewedas a supplementary facility—one that does not competewith existing functioning law enforcement relationships.In other words, it should exist expressly for those caseswhere interested States perceive a need for this type offorum, presumably because no other forum will serve;

(b) The statute must reflect a consensus among States.If there is no such consensus, the treaty will fail to gain ameaningful acceptance among States, and this importanteffort will fail;

(c) In keeping with the need for consensus, it is neces-sary to avoid any linkage between the proposal to createan international criminal court and the development of theDraft Code of Crimes Against the Peace and Security ofMankind. The Code of Crimes is, so far, a highly contro-versial and imperfect document. As long as it remains thisway, it cannot form the basis for an international court'sjurisdiction;

(d) The budgetary and administrative requirements ofthe tribunal must be handled with great care. The tribunalcould be an extraordinarily expensive undertaking, espe-cially if it is used at any one time for extensive investiga-tions or more than a limited number of cases.

5. The rules of evidence and procedure of the tribunalshould be agreed to by States parties and formulated inconjunction with the statute, and not left to the discretionof the court. In many instances, the content of the rulescan be as important as that of the statute. One reason for


this is that such rules have an important impact on therights of defendants, and thus must be in keeping with rel-evant human rights and due process norms.


PART 1: ESTABLISHMENT OF THE TRIBUNAL

Article 1 (Establishment of the Tribunal)

6. The United States supports the approach taken by the1993 Working Group in establishing the proposed tribu-nal through a multilateral treaty, binding those Stateswhich choose to become parties to the instrument.


7. The United States believes that the proposed tribunalshould not be established as an organ of the UnitedNations, which would involve the complicated task ofamending the Charter of the United Nations, but the tribu-nal should none the less have a clear relationship to theUnited Nations. An agreement between the UnitedNations and the tribunal is desirable because it wouldfacilitate cooperation. This is especially important given,as noted by the commentary, that a part of the tribunal'sjurisdiction might depend upon decisions by the SecurityCouncil. One appropriate way of establishing such a rela-tionship would be for the United Nations and the pro-posed court to enter into an agreement along the lines ofagreements between the United Nations and specializedagencies, pursuant to Articles 57 and 63 of the Charter ofthe United Nations.

8. The United States believes that the statute shouldinclude an appropriate mechanism for "ratification" byStates parties of major decisions by the tribunal that mayhave financial or operational repercussions. This might beaccomplished by including an article in the statute provid-ing for specified matters to be put before States parties.

Article 3 (Seat of the Tribunal)

9. This issue could be resolved in the convention estab-lishing the proposed court. Alternatively, the resolution ofthe issue should be subject to approval by the majority ofStates parties.


10. The United States agrees that, for budgetary rea-sons, the tribunal should sit only when it needs to conductbusiness. This result does not mean that the tribunal willlack the requisite degree of permanence or authority for itto accomplish its mission. At this point, States are not ina position to predict how active the tribunal might be.Requiring that the proposed court be in permanent sessionwould deprive the institution of necessary flexibility, andsubject States parties to unnecessary costs.

Article 6 (Qualification of judges)

11. The United States believes that the statute shouldmake a distinction between the qualifications for trial andappellate judges. Trial judges should be required to haveexperience in trying criminal cases. While it would bedesirable for appellate judges to have a background inhearing appeals of criminal cases, given the internationallaw character of this tribunal, it may not be necessary torequire such experience in cases where an individual hashad other relevant experience.


12. The United States believes strongly that the appel-late function should be independent from the trial func-tion in order to ensure full and fair appellate review. Con-sequently, judges should be elected separately for thesetwo functions. Candidates for judicial positions will belikely to have more experience in one or the other capac-ity, and thus separate voting will assure States parties thatrelative expertise will be channelled appropriately.

13. The United States reserves judgement as to whether18 judges is the proper number. Much depends on howmany cases States parties predict the tribunal will have,and the overall budgetary requirements of the tribunal.

14. The judges should be elected by States parties.


15. The rules of the tribunal will need to include spe-cific guidelines for judicial service, and will need to strikea proper balance between allowing part-time judges toearn a living and the necessity of ensuring that the integ-rity of the judges and the tribunal in appearance and factis protected. For example, judges should be permitted toteach or practise law (although they may not take casesthat relate to matters before the tribunal or that otherwiseare inconsistent with the tribunal's conflict of intereststandard). They should not participate as members ofexecutive or legislative branches of Governments.Whether they could act as judges in domestic courts is anissue which should be explored.

16. One important reason to have the rules of servicespecified in advance is that candidates for judgeships maynot put themselves forward if they cannot predict howtheir outside activities and incomes will be affected.

Article 10 (Election and functions of president and vice-presidents)

17. It would be appropriate for States parties to elect thepresident and vice-presidents, rather than leaving the mat-ter to the judges.


18. The United States does not believe that there is anyreason to limit the number of judges whose disqualifica-tion an accused can request. There should be no difficulty


in handling such challenges in the ordinary course. Theprosecutor should also have the right to request the dis-qualification of a judge. Other judges, too, should havethis right. Rather than have the chamber, or the chambersupplemented by the bureau, render a decision on thisquestion, it would be preferable for the court as a wholeto do so. The final decision should be reached on the basisof a majority vote, with a majority consisting of more thanhalf the eligible judges present and voting.

19. In certain circumstances, States parties may haveinformation bearing upon whether a judge should be dis-qualified. In such circumstances, there should be a pro-cedure to permit such States parties to file a motion withthe court requesting a review by the chamber concerned.

Article 12 (Election and functions of Registrar)

20. The statute should provide that the registrar can beremoved for cause by a vote of a majority of the court. Aseven-year term appears somewhat long for this type ofoffice, and we suggest that five years may be a moreappropriate period particularly in view of the permissibil-ity of re-election.

21. The tribunal, as a supplementary facility, shouldhave a small professional staff, which States parties couldagree to expand as needed. This basic principle shouldapply to both the registry and the procuracy.

22. The number of employees of the registry and itsbudget should be subject to approval by States parties. Asdrafted, the bureau could authorize unlimited numbers ofadditional staff, presumably to be paid for by assessmentsfrom States parties. Instead, on a yearly or shorter basis,the registry should submit to the president of the court adetailed accounting of its activities, along with a proposalfor changes in expenditures for the next period. The presi-dent would submit a proposal to States parties, based onthe registrar's proposal.


23. The United States Government agrees with theWorking Group's proposal that the prosecutor and deputyprosecutor be elected by States parties. That electionshould require a super majority vote, for example an affir-mative vote of two thirds of the States parties.

24. Without affecting its basic independence, Statesparties must none the less have oversight with respect tothe budget of the procuracy. Thus, as with the registry, theprocuracy should draw up periodic budgetary proposalsfor approval by States parties.


25. The statute should provide, here or elsewhere, thatjudges, the prosecutor or deputy prosecutor, and the reg-istrar may be removed from office, or suspended, by rea-son of inability to perform their functions because oflong-term illness or disability.

26. Given the importance placed in the independent sta-tus of the prosecutor, we question whether the courtshould have the authority to remove the prosecutor ordeputy prosecutor from office. Thus, we suggest that thestatute limit the authority of the court to barring participa-tion of any prosecutor for cause, but leave removal fromoffice of the prosecutor or the deputy prosecutor to a supermajority decision of States parties. The ILC will need todevelop mechanisms for expeditious consideration ofissues by States parties and voting procedures.


27. This provision should be revised so that it statesclearly, and without reference to the standards used byother institutions, the privileges and immunities of spe-cific persons or categories of persons. Thus, judges andthe prosecutor (and perhaps the deputy prosecutor) shouldenjoy full diplomatic immunity while present in the terri-tory of any State party where they are performing officialfunctions related to the work of the tribunal. Full privi-leges and immunities would be provided to the prosecutorbecause he or she will be likely to make the kind ofcontroversial decisions that would require such protec-tions. All other categories of persons listed should enjoythe privileges and immunities provided to administrativeand technical staff under the Vienna Convention on Dip-lomatic Relations while present in the territory of anyState party where they are performing official functionsrelated to the work of the tribunal.

28. Further consideration should be given to whoshould be able to waive immunities (we prefer the term"waive" to "revoke"). The person with authority to waiveimmunity should normally be someone with directauthority over the person whose immunity is affected.Thus, it would be appropriate for the prosecutor to be ableto waive the immunity of other prosecutors or members ofthe procuracy, the president (perhaps in consultation withthe rest of the court) for the staff of the court, the registrarand his staff, and counsel, experts and witnesses.

Article 17 (Allowances and expenses)

29. If judges reach the point where they are working fulltime, there should be a transition mechanism, so that perdiem payments do not exceed what would normally bepaid as a full-time salary for the same period.


30. As noted above (para. 5), the United States believesthat the tribunal's rules should be formulated in conjunc-tion with the statute and agreed to by States parties priorto establishment of the international criminal court. Theconduct of pre-trial investigations, rules of procedure andevidence and other matters "necessary" to the implemen-tation of the statute can have a fundamental impact on theability of the tribunal to have fair and acceptable proceed-ings. Rules that affect the operation of the tribunal to thisdegree will require painstaking effort to draft; States par-ties should not be asked to give their approval to the court


unless that effort has been made and the results have metwith general approval.


31. As a general proposition, we agree that the courtshould have leeway in determining its own internal rules.Nevertheless, care needs to be taken to ensure that theserules do not adversely affect the rights of the accused. Ifthe court's internal rules are not subject to prior approvalof States parties, then the statute should provide that therules of procedure and evidence (which would be subjectto such approval) take precedence over the rules of thecourt in case of conflict.


32. While we agree that providing for a review confer-ence is desirable, this article should not refer to the Codeof Crimes. As noted above (para. 4 (c)), the Code is a con-troversial document which at this time cannot form thebasis for the jurisdiction of an international criminalcourt, and which will not be able to form such a basis inthe near future.



33. The United States Government has reviewed thedraft articles on jurisdiction with great attention. This isundeniably the heart of the international criminal courtproposal, and must be crafted with great care. In makinga number of recommendations on structuring the jurisdic-tion of a court, we have borne in mind the need to attain avery wide degree of support for an ambitious project ofthis nature.

(a) War crimes, crimes against humanity, genocide

34. Recent events have shown that there is an importantneed to ensure that war crimes, crimes against humanityand genocide do not go unpunished. While internationalprosecution is not an effective substitute for systems ofmilitary justice and discipline in most cases, there are cir-cumstances in which domestic efforts will not suffice. Forthat reason, such crimes are appropriate subjects for thejurisdiction of an international criminal court. Thesecrimes are of fundamental concern to all States. Beyondthe fact that such crimes may be so serious that they shockthe conscience of the civilized world, in large measure thesignificance of such cases to all States derives from thefact that the commission of such crimes may createinstabilities which threaten international peace and secu-rity, or because such crimes are committed in connectionwith international conflicts. Because of this connection toissues of peace and security, the United States concludesthat such crimes should be subject to the tribunal's juris-diction only where such cases are referred to the tribunalby the Security Council.

35. At the same time, we believe that these types ofcases should not be initiated in the tribunal by individual

States. The Council is well-placed to make judgementsabout when particular situations are of so great a concernto the international community that an international(rather than a national) prosecution is required. In addi-tion, we are concerned that there would be a temptationfor States to invoke the jurisdiction of the tribunal forpolitical purposes.

36. The United States believes that it is appropriate forthe international criminal court to have jurisdiction overoffences under the laws of war that are well-established.Because aspects of Protocol I additional to the GenevaConventions of 12 August 1949 have yet to attain a suffi-cient level of recognition and acceptance, we concludethat Protocol I should not form part of the tribunal's juris-diction. Furthermore, in armed conflicts, applicable lawsof war derive from the treaties to which all belligerentsare parties. The ILC draft would allow one of the bellig-erents to a future conflict to initiate court prosecution ofmembers of another belligerent's armed forces for viola-tions of laws of war under an instrument to which the lat-ter is not a party, and for crimes which have not been suf-ficiently well accepted as crimes. Such a result should beavoided. (In addition, as discussed below (para. 45), webelieve that the tribunal should not have jurisdiction overcases otherwise subject to an existing status-of-forcesagreement.)

37. In these circumstances, the United States Govern-ment supports establishment of an international criminalcourt which permits referral of cases for investigation andprosecution only by the Security Council for crimes setforth in the instruments listed in sections 22 (a) and (b)(i)-(iv). In addition to grave breaches under the GenevaConventions, we would also include violations of equiva-lent gravity of the 1907 Hague Conventions. With respectto crimes against humanity, in the absence of an appropri-ate instrument defining the crime, the ILC should con-sider developing a definition for inclusion in the statute,perhaps modelled along the lines of article 5 of the statuteof the International Tribunal for the Former Yugoslavia.In the context of an international criminal court, we wouldsuggest that the ILC make clear that there is no require-ment that crimes against humanity be limited to thosecases arising out of or even during an armed conflict.

(b) Crimes under the "terrorism " Conventions

38. The United States Government also recognizes thatit might, in principle, be desirable in some cases to have aforum available for prosecution of persons committingcrimes defined in the conventions listed in sections 22 (c),(d), (f), (g) and (h) where national forums are unavailableor will not suffice. At the same time, however, the pos-sibility of international criminal court jurisdiction shouldunder no circumstances impede or undermine the effec-tive prosecution of terrorists in domestic courts. Unfortu-nately, under the present proposal this latter risk is pre-sented.

39. Many difficulties may arise in bringing such casesto an international criminal court. Such difficultiesinclude whether a tribunal of this nature would be able toconduct investigations of complex terrorist cases as com-petently as national governments. Such investigationsoften take many years and considerable resources,


resources which the international criminal court prosecu-tor may not possess. In addition, a court might end upcompeting with or pre-empting legitimate national inves-tigations, or causing national authorities to leave to the tri-bunal elements of investigations which in fact could bemore efficiently performed by those authorities.

40. In addition, the United States continues to have anumber of reservations about creating jurisdiction on thebasis of treaties which in many respects do not provideprecise definitions of crimes, but instead impose obliga-tions in aid of the exercise of national jurisdiction. As ageneral rule, important elements of crimes and defencesare left to national jurisdictions. The statute, and the rulesof evidence and procedure, will need to provide anadequate guide to the court on the question of elements ofcrimes and defences if the court is to meet the require-ments of nullem crimen sine lege.

41. The ILC and Member States will need to give care-ful consideration to whether these difficulties can be over-come so as to justify inclusion of terrorism within theambit of the international criminal court. The UnitedStates Government reserves judgement on whether this ispossible, but hopes that the ILC will be able to makeprogress in presenting an analysis of issues which canassist in further discussions among United Nations Mem-ber States.

(c) Protection of peacekeepers

42. The United States notes with satisfaction thatprogress is being made at the United Nations in elaborat-ing a convention concerning responsibility for attacks onUnited Nations peacekeepers and associated personnel.Should such a convention come into force, considerationshould be given to including crimes under that conventionwithin the jurisdiction of the court. The ILC should con-sider now mechanisms for bringing these crimes withinthe jurisdiction of the court expeditiously once the treatycomes into force and States parties determine that theywish to add it to the statute.

(d) The International Convention on the Suppression andPunishment of the Crime of Apartheid

43. The United States believes that article 22 should notinclude the International Convention on the Suppressionand Punishment of the Crime of Apartheid. This conven-tion was addressed primarily to a particular situation, thatof the system of apartheid in South Africa, which has nowbeen dismantled. This convention was controversial at itsadoption and has not gained wide support, in part becauseit is not sufficiently precise in defining the crimes whichare its subject.


44. With respect to the three options provided in thedraft statute, we prefer alternative A because it bestreflects, as pointed out in the commentary, the consensualbasis of the tribunal's jurisdiction.


45. It is essential that the tribunal should not substitutefor or undermine existing and functioning law enforce-ment relationships. Thus, States should not be permittedto avoid their obligations under existing extradition trea-ties by referring a case to the international criminal court.Moreover, military personnel who would otherwise besubject to the jurisdiction of their national courts by rea-son of a status of forces or similar agreement should notbe tried by the tribunal. The most compelling reason forestablishing a court is that persons who commit the mostserious crimes will otherwise go unpunished; where per-sons would be tried and punished in a national forum butfor the intervention of the court, it becomes a competingrather than a supplementary mechanism.

46. National prosecutions are usually preferable forcriminal prosecutions. There are many reasons for this:the applicable law in a national prosecution will usuallybe clear; the prosecution will be less complicated, basedon familiar precedents and rules; the prosecution anddefence is likely to be less expensive; evidence and wit-nesses will normally be more readily available; languageproblems are minimized; the local courts will apply estab-lished means for compelling production of evidence andtestimony, including application of rules related to per-jury. International criminal proceedings will almostalways be more complicated and expensive than nationalproceedings, and will not necessarily produce a more justresult.

47. In these circumstances, it is necessary to provideappropriate mechanisms to ensure that, with respect toState-initiated cases, where States are willing and able tobring national proceedings, those proceedings will be pre-ferred over international criminal court ones. This prefer-ence was recognized in the eighth report of the SpecialRapporteur on the draft Code of Crimes against the Peaceand Security of Mankind,' which provided for broaderconsent requirements than does the 1993 WorkingGroup's draft.

48. The Government of the United States proposes thatarticle 26 (Special acceptance of jurisdiction by States incases not covered by article 22) be revised so that the verylimited consent regime currently reflected in the statute isexpanded to include States with a critical interest in theprosecution. Specifically, for each case under sections 22(c), (d), (f), (g) and (h) the statute should require the con-sent of the State where the crime occurred or the State ofnationality of the victim (or in cases where there are vic-tims of many nationalities, the State or States with themost significant interest). The State where the crimeoccurred will in almost all cases have jurisdiction over thecrime, and a very strong interest in the prosecution of anyperson who committed it. The State of nationality of thevictim will often be, in terrorist cases, the State againstwhich the attack was directed; as a result, that State has aparticular interest in trying persons accused of the crime.

1 See Yearbook... 1990, vol. II (Part One), p. 27, document A/CN.4/430 and Add.l, especially p. 36, para. 84.


49. The United States is not opposed to including arequirement that the State with custody have a right ofprior consent. However, among States with an "interest"in a prosecution, the State with custody does not neces-sarily have the strongest interest. Indeed, the presence ofthe fugitive in that State may be no more than fortuitous.Traditional extradition practice has given particularweight to the role of the State with custody, but thatemphasis may not be appropriate where the objective is toidentify those States which have such a strong reason toprosecute themselves that their preferences should pre-vent an international criminal court prosecution.

50. If a State with custody under any circumstancesexercises a right either to refuse to surrender the accusedto the international criminal court, or a right to withholdconsent for an international criminal court prosecution,that State (if it has jurisdiction over the crime) must berequired to submit the case to its appropriate authoritiesfor prosecution or surrender to another State that is readyto prosecute.

51. In addition, any State which has an applicable extra-dition agreement with the State with custody, or any Statewhich could make a request for extradition under the pro-visions of the latter State's domestic extradition law,should be given the opportunity to seek extradition priorto the international criminal court's taking a case. If theState with custody is not obliged and does not intend toextradite to the requesting State (or is not obliged to pros-ecute under the terms of an extradition treaty), or the Statehaving received the fugitive via extradition for any reasondoes not proceed with the prosecution within a reasonableperiod of time, the Court could take jurisdiction over thecase.

Article 25 (Cases referred by the Security Council)

52. As noted above (paras. 34 and 37), the United Statesbelieves that only the Security Council should haveauthority to refer war crimes, crimes against humanityand genocide cases to the court. In addition, articles 29and 30 should be revised to make clear that no investiga-tion may commence nor complaint be filed with respect tothose types of cases prior to such Security Council action.

53. The Government of the United States noted withinterest the view contained in the commentary that theSecurity Council would not normally be expected to refera "case" in the sense of a complaint against individuals,but would more usually refer to the tribunal's situation.The Council would normally refer situations, whichwould then be the subject of investigation by the procu-racy. However, we see no reason why the Council, inappropriate circumstances, should be prevented fromreferring specific cases for the consideration of the inter-national criminal court. In such instances, the Councilwould not require that a prosecution be brought, butwould refer a case that would then be taken up by theprosecutor. If the prosecutor did not find that the caseinvolved criminal conduct, he or she would be under noobligation to seek an indictment.


54. The Government of the United States does not sup-port inclusion within the jurisdiction of the internationalcriminal court of crimes under general international lawor crimes under national law which give effect to provi-sions of a multilateral treaty. The concept of "crimesunder general international law" is not sufficientlydefined, and inviting States to initiate prosecutions onsuch a basis would be potentially counterproductive andill-advised. As discussed in paragraph 37 above withrespect to article 22, we are prepared to include within thetribunal's jurisdiction crimes against humanity—a cat-egory of crimes which is sufficiently well-defined undercustomary international law. The United States wouldalso be willing to consider proposals for the inclusion ofother particularly well-defined categories of crimes, ifany, under customary international law when referred bythe Security Council.

55. The United States Government does not supportincluding drug-related crimes which give effect to theprovisions of the United Nations Convention againstIllicit Traffic in Narcotic Drugs and Psychotropic Sub-stances. It shares the concerns expressed by many Statesin the Sixth Committee debate that this Convention doesnot provide the level of specificity needed to form thebasis of criminal charges in an international criminalcourt. Moreover, even if this defect could be rectified, weare not convinced that a way could be found to ensureamong other things that the tribunal would hear only themost significant drug cases; instead, the court would belikely to be overwhelmed with cases, with all the resourceimplications this implies. The tribunal could become adrug court with little time for other cases of critical impor-tance to the world community.

Article 27 (Charges of aggression)

56. The Government of the United States would notsupport prosecutions on charges of aggression, even if theSecurity Council had first determined that the State con-cerned had committed the act of aggression which is thesubject of the charge. Although the Council is the interna-tional political body charged with determining the differ-ence between unlawful aggression and lawful self-defence, the offence of aggression is not yet sufficientlywell-defined as a matter of international criminal law toform the basis of international criminal court jurisdiction.In addition, charges of aggression are essentially chargesof State and not individual responsibility. Recent difficul-ties in determining whether particular armed conflicts areinternational armed conflicts are examples of definitionalproblems also encountered in defining aggression.


57. The United States is concerned about the referenceto "the rules and principles of general international law"as well as references to "applicable national law". Neitherthe statute nor the commentary make clear the purposesfor which the court may have reference to these sources oflaw. Application of some elements of national law to fill


out the elements of crimes specified in the treaties (or therules of procedure and evidence) is inevitable unless thereis a more developed international law to which the courtcan refer. The crimes in the listed treaties, for example,would normally be interpreted by national courts in con-junction with domestic legal principles, often pursuant todomestic legislation defining elements of the crimes,related defences, and other matters. This lack of moredetailed international law, however, poses serious ques-tions and concerns. Our preference is to develop supple-mentary legal principles for the court in conjunction withthe statute.

58. If reliance on national laws is necessary, which lawis to be applied, the law of the State where the crime wascommitted, that of the State of nationality of the defen-dant, or of where the defendant is located? Is the court tosurvey the laws of all States on the matter and come upwith general principles as recognized under article 38,paragraph (c), of the Statute of the ICJ? These are mattersthat need to be further analysed by the ILC.

59. Finally, unless addressed in the statute, an overlapwill exist between the International Court of Justice andthe international criminal court regarding jurisdiction todetermine questions relating to the interpretation andapplication of the provisions of as many of the treaties aswould be covered by the statute. Consequently, it is pos-sible that the two courts will opine on the same or similarissues. Of course, the States parties to the statute can agreeamong themselves to bring such questions only to thecourt, but this would not preclude other States from bring-ing the same or similar questions to the ICJ.



60. States should not be allowed to pick and choosewhen they will subject themselves to the general obliga-tions of the statute. It would be particularly inappropriateif a non-party could bring a case to the international crimi-nal court, but would be under no treaty obligation to co-operate with the tribunal in legal assistance matters.Moreover, the United States opposes giving a right tonon-States parties to bring cases before the tribunal. OnlyStates paying for the court's operations should be able toact as complainants.

61. As noted above (paras. 34 and 37), the United StatesGovernment concludes that only the Security Councilshould be permitted to refer cases involving war crimes,crimes against humanity and genocide to the internationalcriminal court. Thus, no complaint regarding crimesunder instruments listed in sections 22 (a) and (b) (i)-(iv)should be accepted by the court unless referred by theSecurity Council.

62. The statute should provide that there be somethreshold showing, if not determination of, jurisdictionbefore the investigation begins—rather than waiting forthe issue to be raised on the eve of trial under article 38(Disputes as to jurisdiction). As a minimum, the com-plaining State should be required to make a showing on

the issue of jurisdiction and the prosecutor or tribunalwould be able to decline or defer the case if thereappeared to be a serious jurisdictional defect. In order toavoid a waste of investigatory resources, all interestedStates which have a right under the statute to withholdconsent (and thereby curtail a prosecution) should berequired to make an election (either irrevocable or provi-sional) at a specified early point, without prejudice to theright of the defendant to challenge the jurisdiction of thetribunal. In addition, States must be given a reasonableamount of time in which to make a decision concerningconsent.

63. Further consideration needs to be given to the roleand function of the bureau, especially to the extent towhich it will perform judicial functions that would other-wise be referred to a chamber of the court. One memberof the Working Group suggested the possibility of estab-lishing an "Indictment Chamber". (See article 29, com-ment 6.) Article 30 (Investigation and preparation of theindictment), paragraph 1, stipulates that the bureau candirect the prosecutor to commence a prosecution which heor she has declined, and article 32 (The indictment), para-graph 2, states that the bureau determines the sufficiencyof an indictment. Giving authority to the court under arti-cle 30, paragraph 1, to direct that a prosecution be broughtmight constitute an infringement on the independence ofthe prosecutor and thus we should prefer to limit theauthority of the court in this respect to requiring reconsid-eration of the matter.


64. To avoid potential abuse of the tribunal's investiga-tive powers and waste of financial and personnelresources, the standard for declining an investigation(para. 1 stipulates that "unless the Prosecutor determinesthat no possible basis exists for action by the Court")should be made less demanding. In addition, provisionshould be made for retention of information or evidence,for possible future use, in the event the prosecutordeclines prosecution.

65. Paragraph 2 provides that the prosecutor shall havethe power to request the presence of certain persons andthe production of information. The obligations of States tocooperate with the tribunal, e.g. with respect to subpoenasseeking disclosure and production of documentation orexhibits, should be spelled out more clearly with respectto both this article and article 58.

66. Although this may be presumed in paragraph 4, itwould be preferable for the right of a person to beinformed, at the time of the questioning, that he or she isa suspect, to be included explicitly in the list of thesuspect's rights.

67. Because war crimes, crimes against humanity andgenocide cases should be referred only by the SecurityCouncil (see discussion above with respect to article 22),this article should be redrafted to take the distinctionbetween State-initiated and Council-referred cases intoaccount.


Article 31 (Commencement of a prosecution)

68. We propose that the prosecutor be authorized to pro-ceed with preparation of an indictment if he determinesthere is a prima facie case, not, as provided in the statute,if he determines "there is a sufficient basis to proceed".This is in line with article 32 which requires there to be aprima facie case for affirmation of the indictment. Theprosecutor should proceed to indictment only if he or shebelieves in good faith that the indictment will be upheldby the court.

69. In addition to information specified in paragraph 1,the indictment should specify the alleged facts establish-ing the elements of the offence. It could also include astatement of the basis of jurisdiction. The standard forpre-indictment arrest ("sufficient grounds to believe")should be clarified. This sounds like the equivalent ofprobable cause (the standard used in the United States),but it is hard to determine whether this is the case.

70. The statute leaves the period of pre-indictmentdetention to the discretion of the court. Many judicial sys-tems, provisional arrest articles in extradition treaties, andinternational human rights standards (for example, art. 9,para. 3 of the International Covenant on Civil and Politi-cal Rights) allow detention for a stated period of time, orfor a "reasonable" period. If the prosecutor cannot seek atimely indictment, e.g. cannot establish a prima faciecase, the appropriateness of a lengthy detention is open toquestion. Thus, article 31 might be revised to permitpre-indictment detention for a "reasonable" period.


71. We question whether the judges who affirm anindictment should hear the resulting case or appeal. Thestatute or rules should provide for the amendment of anindictment after it has been affirmed and for the sealing ofindictments. Presumably determination of whether thereis a prima facie case would be based on a review of theevidence submitted as part of the "supporting documenta-tion". It is unclear from the language of the statute whatfacts must be established preliminarily, and how "primafacie" would be defined.

72. So that the court will have control over the tribunal'sdocket, we believe that the court should have discretion todecline to hear State-initiated cases which otherwise meetthe requirements of the statute, based on appropriate cri-teria to be developed by the ILC. Such criteria mightinclude the fact that a case would be better handled at thenational level, or is not of sufficient gravity to warrant theattention of the international criminal court.


73. This article should be read together with article 58(International cooperation and judicial assistance) andarticle 63 (Surrender of an accused person). The statutemade a distinction between States parties which haveaccepted jurisdiction of the tribunal with respect to thecrime(s) in question, which are ordered to make thenecessary notification and/or arrest, and those which have

not accepted jurisdiction of the tribunal for those crimes,which are merely "requested" to cooperate in this regard.We agree that, with respect to a State which does notaccept the jurisdiction of the tribunal for the crime inquestion, the tribunal should be able to do no more thanmake a request for cooperation with respect to service ofthe indictment and detaining the accused. Similar limita-tions on States' obligations should be reflected inarticle 58.

Article 34 (Designation of persons to assist in prosecu-tion)

74. In particular because the tribunal will function on anad hoc basis, the prosecutor will have limited staff, andthus will need the ability to designate persons to assist inprosecutions. This is also desirable because the prosecu-tor will be likely to need assistance with issues related tolocal law. It is not clear from the text whether this articleapplies to pre-indictment investigations (which it should).


75. The statute or rules need to address issues related tothe standards for determination of whether a personshould be detained or released on bail prior to trial, dura-tion of detention and right to review. Given the nature ofthe offences the court may hear, consideration of both therisk of flight and of danger would seem appropriate andwould frequently result in a decision not to grant release.The statute or rules should also specify that these provi-sions will apply to pre-indictment proceedings. It is notclear that the place of detention should be limited to thehost State; if the tribunal were to handle many cases at thesame time, this limitation could create difficulties.

PART 4: THE TRIAL


76. As noted with respect to article 7, the statute shouldbe revised so that there is a clear distinction between trialand appellate judges. As for the question of compositionof the chambers, we prefer the option of rotation on anannual or other periodic basis among the spe-cially-selected trial judges (consistent with the need topreserve the composition of the panel of judges hearing aparticular case). There should be no rotation between thetrial and appellate benches.

77. Regarding paragraph 4, we recognize that disquali-fication of judges who are nationals of the complainantState or who are from a State of which an accused is anational is a difficult question. Although the removal ofany taint of partiality is a valid objective, this prohibitioncan remove from the proceedings an expert on what ispotentially relevant local law. Thus, we would deleteparagraph 4.



78. An allegation of jurisdiction and the basis thereofshould be included in the indictment. Pre-trial challengesto jurisdiction upon arrest or indictment should also beauthorized.

79. Allowing any State party to challenge jurisdiction isnot necessary and would only complicate the proceed-ings. However, we believe that any interested State shouldbe able to make such a challenge at the beginning of theproceedings. Such States could be any State that asserts aright to consent under the statute, the State of nationalityof the accused, the State of nationality of the victims, theState (or States) where the crime occurred and the Statewhere the accused is present.

Article 39 (Duty of the Chamber)

80. The statute appropriately authorizes disclosure ofevidence to the accused and exchange of informationbetween the defence and prosecution before trial. Thisfosters a more efficient trial and improves the accused'sability to prepare a defence. However, the court shouldalso be given the authority to issue protective orders andto take other measures to address legitimate concerns thatmay arise about the scope or nature of discovery. In addi-tion, there will need to be procedures to protect disclosureof sensitive information provided by governments (seecomments below with respect to articles 47 and 48).

81. The details concerning handling of exculpatory evi-dence, prior convictions, witness lists, defences, andrelated matters should be provided for in the rules of pro-cedure and evidence.

82. Paragraph 2 should be read in conjunction witharticle 44 (Rights of the accused). This paragraph statesthat the chamber "may" order disclosure of evidence tothe defence "having regard" to article 44, paragraph 3.This presumably means the court will in fact (i.e. isauthorized to) ensure that exculpatory information is dis-closed, not that it might do so.


83. The reference to an "expeditious" trial is an impor-tant one, and might be emphasized in the statute or rulesby including not only an explicit "speedy trial" require-ment (which we find in article 44's provision for trial"without undue delay", based on article 14, paragraph 3(c) of the International Covenant on Civil and PoliticalRights), but standards for the amount of time in which atrial should normally take place after the accused has beenplaced in custody.

84. This article permits closed sessions only in order toprotect a witness, but broader issues are involved, such asthe need to protect sensitive information provided by gov-ernments (see discussion below with respect to articles 47and 48).

Article 41 (Principle of legality (Nullum crimen sinelege);

85. The principle of nullum crimen sine lege is a criticalone. The problem posed is in the difficulty of its applica-tion. Meeting this standard produces particular problemsfor crimes under "general international law" which inmany cases will lack precise definitions, and will thuspose a risk to fair and effective prosecutions. We shouldnot want the tribunal to make ad hoc determinations ofcriminality based on controversial notions of what consti-tutes general or customary international law.


86. The statute fails to establish a standard of proof fora finding of guilt. The commentary suggests that beyonda reasonable doubt will not necessarily be the standard.Rather than leave the matter uncertain, the statute shouldprovide a standard. The United States suggests that thatstandard be a stringent one such as "beyond a reasonabledoubt" (however expressed).


87. The United States delegation listened with interestto the debate within the Sixth Committee on the questionof whether in absentia trials should be permitted under thestatute. By "in absentia" we mean that the accused neverappears before the Court. Although such in absentia trialsare not permitted under the United States system, trialsare permitted in some circumstances where the defendantappears initially but later absents himself voluntarily.

88. We appreciate that a number of legal systems permitin absentia trials of some sort, and that such trials mayserve in some circumstances to vindicate the rights ofvictims. Nevertheless, on balance we conclude that inabsentia trials are too controversial and should not be partof the proceedings. The most effective and fair prosecu-tions will usually be those where an effective defence ispresented, and this will not normally be the case in an inabsentia trial. It is important that the court be not temptedto seek the easier route of hearing cases in absentia whenthe custody of accused persons becomes difficult toobtain. Rather, every effort should be made to ensure thatStates comply with obligations to surrender fugitives.

89. Paragraph 1 (h) is problematic given that theabsence of the accused will often be wilful, and thusdeliberate. Thus, trials in absentia would be permitted inany case where the accused does not voluntarily offerhimself to the tribunal. Given our reasons for opposing inabsentia trials, we cannot support this provision.

90. The United States notes that the statute of the Inter-national Tribunal for the Former Yugoslavia incorporatesthe right of the accused to be tried in his or her presence,based on article 14, paragraph 3 (d) of the InternationalCovenant on Civil and Political Rights. The statute or therules of procedure should cover post-indictment "volun-tary" absence, and waiver of the defendant's right to bepresent after a warning by the Court that his or her disrup-tive behaviour justifies exclusion from the proceedings.


91. Other than the question of in absentia trials, we sup-port this article, which reflects the International Covenanton Civil and Political Rights. Article 44, paragraph (g),requires that an accused should not be compelled to testifyor to confess guilt. Consideration should be given also toensuring that the defendant's silence cannot be consideredevidence of guilt.

92. The United States notes that the commentary toarticle 39, paragraph 2, speaks of a "right" to simulta-neous interpretation. While simultaneous interpretation isalways preferable, this should not be viewed as a right ofabsolute dimension, as there may be times when this is notpossible.

Article 45 (Double jeopardy (Non bis in idem),)

93. A number of questions need to be addressed withrespect to this article, including whether lesser/greateroffences implicate double jeopardy. What if the conductin question has subjected the person to prior prosecution,but not for the particular crimes that are now charged?Should there be a requirement that the prior trial hasresulted in a determination on the merits?

94. The United States Government agrees that a "sham"prior prosecution should not deprive the tribunal of juris-diction. We note that the ILC 1993 Working Groupemployed in this context the formulation used in the stat-ute of the International Tribunal for the Former Yugosla-via. The experience of the Yugoslavia Tribunal will be rel-evant to determining whether this formulation is a goodone in practice.

Article 46 (Protection of the accused, victims and wit-nesses)

95. We believe that the rules will need to provide detailsof the "measures" that might be taken by the court. In par-ticular, while it is important to protect victims, a counter-vailing consideration is that the accused must have ameaningful opportunity to have witnesses against himexamined.



96. The relationship of articles 47 and 48 to article 58(International cooperation and judicial assistance) needsto be clarified. While States parties will be obligated tocooperate in carrying out the court's orders to provide wit-nesses and evidence, it is not clear to what degree nationallegal systems will be able to comply. A series of questionsconcerning the relationship of the international criminalcourt to States parties and their domestic courts will oftenarise because the tribunal, lacking personal jurisdiction ofpersons having requisite evidence, must rely on Statesparties to enforce the tribunal's orders. The tribunal inevery case will be operating in the realm of internationaljudicial assistance. Its statute and rules must reflect theflexibility essential for effective prosecutions in this area.

97. The reference to "complete record of the trial"(art. 47. para. 2) should be construed to mean either a ver-batim transcript or a video/audiotape record, togetherwith copies of documents, and not merely the judge's orclerk's notes of the proceedings.

98. In order to make the oath requirement (art. 48,para. 2) meaningful, the tribunal must have the authorityto prosecute witnesses for perjury. Asking States to pun-ish persons who commit perjury before the internationalcriminal court appears to us likely to be an impracticalsolution.

99. Article 48, paragraph 5 establishes a rather lowthreshold for exclusion of evidence ("obtained directly orindirectly by illegal means which constitute a serious vio-lation of human rights"). Paragraph 6 of the commentary,proposed by some ILC members, suggests rejecting evi-dence obtained through violations of international law aswell. We believe that the focus must be on whether theevidence to be placed before the court is reliable. Personsmay differ on what constitutes serious violations ofhuman rights or international law; we believe the ILCshould indicate in detail what situations will be likely toresult in exclusion of evidence under these standards.Using that information, States will be able to determinewhether they can support either reference.

100. The ILC should give further consideration to thequestion of how national security information will be han-dled or disclosed. In particular, it will be necessary to per-mit a State to decline at its discretion to produce informa-tion related to its security despite a request from thetribunal. Furthermore, procedures should be developed toensure that a State may disclose sensitive information tothe prosecutor without fear that such information will bedisclosed to defendants and defence counsel without thatState's consent. If such rules are sound, it will greatlyassist in widening the scope for cooperation betweenStates parties and the tribunal. If there is uncertainty abouthow sensitive information may be used or disclosed, gov-ernments may be reluctant to provide certain types ofvaluable information to the tribunal.

101. The ILC will no doubt wish to consider nationalsecurity implications as they affect a number of other arti-cles related to rights of and measures to protect theaccused (e.g. arts. 44 and 46), court orders on disclosureof evidence (art. 39), and the requirement of a fair trial(art. 40), as well as the rights and protection of theaccused (e.g. arts. 44 and 46).

Article 49 (Hearings)

102. A host of issues, such as an opportunity for thecourt to rule on the sufficiency of the evidence presentedby the prosecution at the close of its case, and handling ofcross-examination and re-direct, are not dealt with here.Paragraph 2 of the commentary states that the rules willcontain additional procedures. Consideration will need tobe given by the ILC as to whether some of these issuesshould be reflected in the statute; if not they wouldunquestionably have to be reflected in the rules.


Article 50 (Quorum and majority for decisions)

103. Although making decisions by majority vote issensible, in principle we would want the full bench of fivejudges to be present during the entire trial, particularlyconsidering that the judges are finders of fact as well as oflaw. We propose that this provision be revised accord-ingly.


104. The statute should permit the judges of the court(both the trial and appellate benches) to issue dissentingand concurring opinions. The ability of the dissenters tochallenge the majority's reasoning will help ensure thatmajority decisions are well grounded and publicly justi-fied.

Article 52 (Sentencing)

Articles 52 (Penalties)

105. The United Sates of America believes that the rulesof procedure will need to provide further details on issuesrelated to sentencing. We also urge consideration of theadoption of uniform penalty provisions, so that the courtwill not need to search for and justify references tonational law. Such provisions will assist the court inensuring that persons committing similar crimes receivesimilar sentences.

106. Article 53, as drafted, appears to permit the tribu-nal to exercise jurisdiction over and attach individual andeven government property located within States. This islikely to require subsequent enforcement actions innational courts. Such litigation can be complex. While westrongly support remedies of forfeiture and restoration ofproperty to victims, this has proved one of the more diffi-cult areas in international assistance. Thus, the statutemay need to be revised to reflect the fact that court ordersinvolving execution in States with respect to propertymay be subject to review by national courts under nationallaw.

PART 5: APPEAL AND REVIEW


107. While the possibility for a prosecutor's appealingan acquittal is limited under United States law, we recog-nize that it is permitted in other countries. At the veryleast, we do not believe it is appropriate for the prosecu-tion to be able to seek a reversal based solely on new evi-dence at the appellate stage.


108. As noted above (para. 76), we propose that thecourt include separate trial and appellate chambers. (Seealso comments above on dissenting and concurring opin-ions with respect to article 51.)

109. There needs to be more specificity concerning theappeal process: can the court hear newly discovered evi-dence? Will the appeal be done primarily on the briefingor will there be oral argument? Can the court solicit viewsof States parties? Under what circumstances might theappellate chamber remand the case for further proceed-ings?


110. The statute leaves open whether the prosecutor canseek revision. The United States has serious reservationsabout allowing the prosecutor open-ended authority toseek reversal of an acquittal particularly when the appel-late phase has concluded. The ILC should clarify underwhat circumstances it would be appropriate for the pros-ecutor to seek revision.

111. It is assumed that the reference to "judgement ofthe Court" pertains to the finding of guilt or innocence. Itwould be generally inappropriate to utilize this remedy toseek additional review of a sentence. It is unclear whetherdiscovery of a new fact clearly indicating that the courtlacked jurisdiction would be encompassed in this provi-sion—the United States thinks it should be.



112. Paragraph 2 requires "States parties which haveaccepted the jurisdiction of the Court with respect to aparticular crime to respond to international criminal court'orders' or 'requests' for assistance". This obligation tocooperate extends to producing evidence and to arrest,detention and surrender of accused persons. However,there is no limitation on that obligation reflecting issuessuch as ongoing criminal proceedings, domestic constitu-tional requirements, jeopardy to the safety of victims orwitnesses, and adequate articulation of the need for evi-dence. As a practical as well as a legal matter, it is not pos-sible for States to cooperate with the tribunal smoothly(and in some respects at all) unless these types of mattersare clarified. If they are not, States will take it upon them-selves to determine the extent of their obligation tocooperate, leading to what will be likely to be inconsistentresults.

113. As a general matter, States must not be required tocooperate in legal assistance matters if they do not acceptthe court's jurisdiction over the offence giving rise to theneed for cooperation. Although States parties wouldexpect to cooperate in most cases, establishing a legalobligation is inconsistent with the consensual nature ofthe court proposal.

Article 60 (Consultation)

114. The obligation to consult under this article isambiguous. It is not clear who is to consult and for whatpurposes. It is not clear why formal consultations


generally among States parties would be necessary oruseful prior to the review conference.


115. This article should provide that States parties willdetermine whom the competent national authority wouldbe for purposes of communications, and would notify theregistry.

tence, it might also include a clause permitting temporarysurrender. It is sometimes useful, because of availabilityand freshness of evidence and recollections of witnesses,and where the accused is serving a long sentence, to sur-render the accused temporarily to the tribunal for trial.The United States often includes such a clause in its bilat-eral extradition treaties.

121. Overall, the statute's approach to surrender obliga-tions and their interplay with existing extradition treatiesrequires further review and analysis.


116. Given the considerable legal complications ofarresting individuals and seizing property, this provisionmust be expanded to cover at the very least issuesaddressed in standard extradition treaties. For example,the provision needs to spell out the form and content ofrequests. It should provide that the provisional arrest is forthe purpose of awaiting the submission to the State withcustody of a complete request for surrender (with accom-panying documentation), and that if such completerequest is not received in either a set period of time or a"reasonable" time, the individual will be released.

117. One difficulty with the statute is that the variousarticles dealing with arrest do not clearly interrelate.Article 31 provides for "pre-indictment" arrest, althoughthis provision discusses the arrest as part of the proceduralrequirements necessary for commencing a case, ratherthan as a stand-alone element of an "extradition" process;article 62 is ambiguous in its relation to article 31 andrequires further detail, and article 63 concerns the obliga-tion to surrender rather than the functional steps needed tobring this about.

Article 63 (Surrender of an accused person to theTribunal)

118. The precise interplay between article 63 and arti-cle 33 on notification of the indictment needs to be clari-fied. Moreover, this article should specify the documentsthat would be provided with the request for surrender. Thelack of a provision for transmission of evidence or a sum-mary statement of the evidence, combined with the needfor the custodial State to take "immediate steps" suggeststhat the 1993 Working Group did not contemplate theneed for judicial proceedings in the requested State. TheUnited States and, we suspect, other countries as well,cannot surrender persons to another government or entitywithout judicial proceedings. Such proceedings have aconstitutional dimension under United States law, andthus we could only participate in a criminal court structurethat took this need into account.

119. As noted above with respect to article 22, defer-ence should be given to national prosecutions, includingadherence to existing extradition obligations in aid ofnational prosecutions. Thus, the obligation to surrender asset forth in article 63 should be revised to reflect that basicapproach.

120. Although the statute permits delayed surrenderwhile an accused is being prosecuted or serving a sen-

Article 64 (Rule of speciality)

122. Paragraph 2 provides that evidence tendered shallnot be used as evidence for any purpose other than that forwhich it was tendered. Rather than make this an absoluterequirement, with the burden on the court to request awaiver from the affected State, it is preferable for the Stateproviding the information to request this treatment withrespect to evidence it believes warrants special proce-dures.

123. Also, this paragraph could be interpreted to meanthat the Prosecutor could not reveal even exculpatory evi-dence relevant to the defence in one case, if the relevantinformation had been received in connection with anothercase. Such a limitation on use of evidence could seriouslyaffect the rights of an accused.

PART 7: ENFORCEMENT OF SENTENCES

Article 65 (Recognition of judgements)

124. The United States assumes that the purpose of thisprovision is primarily to provide for giving effect tojudgements imposing fines or ordering return or forfeitureof property. Given the jurisdictional scheme envisionedfor the court, the United States believes that obligatoryrecognition of court judgements should be limited toStates which accept jurisdiction over the offence in ques-tion. This is because it would not be appropriate for aState to be forced to execute under its domestic law anorder based on an offence which is not recognized by thatState.


125. The rules should set guidelines for the "supervi-sion" envisioned under paragraph 4. As a general matter,once the court is satisfied that a particular State's correc-tional system is satisfactory, the details of the incarcera-tion should normally be left to that State. The court wouldbe expected to monitor whether basic norms forincarceration under relevant standards of internationallaw are met.


126. There appears to be some confusion in this articleas to whether the court should rely on national law todecide issues related to pardon, parole and commutation.


There is a potential inequity in allowing the national lawof the State of incarceration to be decisive on these ques-tions, as persons who have committed the same gravecrime may be subject to very different terms of actualimprisonment regardless of the fact that each received thesame sentence. At the same time, it is convenient to usethe national law of the State of imprisonment as a guide.

127. The rules of procedure provide basic guidelines onthese issues, and such rules along with the law of the Stateof imprisonment should be considered by the court.Paragraph 4, which allows too much discretion to theState of imprisonment, should be deleted.

Yugoslavia


GENERAL OBSERVATIONS

1. The Government of the Federal Republic of Yugosla-via (Serbia and Montenegro) wishes to make some gen-eral observations on the very question of the need forestablishing such a court and to draw the attention of theSecretary-General to the position it has already taken onthis matter.

2. In his letter of 19 May 1993 (A/48/170-S/25801), theMinister of Foreign Affairs for the Federal Republic ofYugoslavia recognized the need for establishing a perma-nent international criminal court, while, at the same time,he expressed his disagreement with the establishment ofan hoc international tribunal to prosecute only personsresponsible for serious violations of international hu-manitarian law in the territory of the former Yugoslavia.The Federal Republic of Yugoslavia considers that it is inthe interest of all members of the international communityto enlarge the existing system of international legislationby such a court, which would, on the one hand, contributeto the settlement of disputes and, on the other, enable theinternational community to use successfully all measuresof prevention and suppression of any threatening act.

OBSERVATIONS REGARDING SPECIFIC ARTICLES

Articles 1 to 4

3. Out of three possible ways to establish the court—bythe revision of the Charter of the United Nations in thesense of establishing a new organ, by a General Assemblyresolution or by a multilateral convention—the best solu-tion seems to be that the court be established as an organof the United Nations by an amendment to the Charter. Indoing so, use should be made of the possible revision ofthe Charter to allow the expected extension of the Secu-rity Council by the admission of new permanent mem-bers; an international criminal court could also be estab-lished by an amendment.

4. The principal disadvantage of having the court estab-lished by a General Assembly resolution is in that,

according to Article 22 of the Charter, it would be only asubsidiary organ of the United Nations and subordinatedto the General Assembly, contrary to the principle of theindependence of the judiciary which it would be highlyinappropriate to violate in the case of such an importantcourt.

5. Apparently, the only possible solution at this momentseems to be to establish the court by a multilateral con-vention whereby all countries would be enabled to accedeto its statute and recognize its competence for certaincriminal acts, regardless of whether they were UnitedNations Member States or not. However, even in the caseof the court's being established in this way, it should belinked with the United Nations as much as possible eitherthrough a cooperation agreement or a provision that theGeneral Assembly should nominate its judges and theprosecutor.

6. As to the proposal in article 4 that the court "shall sitwhen required to consider a case submitted to it", theYugoslav Government would like to point out that thiscourt should be a permanent organ whose permanenceshould not necessarily be reflected in holding permanentsessions. It would suffice to establish the court, withelected judges, strictly determined competence andorganized judicial administration.

Articles 5 to 11

7. As to the structure of the court, there is no doubt thatit has to have the proposed structure; however, the judicialand prosecutorial organs have to be strictly separated. Asto the procuracy, the position of the Yugoslav Govern-ment will be presented in its comments on article 13.

8. The election of judges should be left to the States par-ties to the convention on the establishment of the courtand, in the case where the court is established by the Char-ter of the United Nations, the General Assembly of theUnited Nations should elect the judges. Either solutionwould heighten the independence and impartiality ofjudges and provide a firm link between the court and theStates which have established it, i.e. the United Nations.

9. The court should also have well organized adminis-trative organs since it will not be in permanent session butonly when a case is submitted to it. The status and organi-zation of the administrative organs should be regulated bythe rules of procedure of the court.

10. The principle of the disqualification of judges is ofgreat importance. Therefore, the reason for disqualifica-tion should be presented both by the disqualified judgeand the accused. The number of judges whose disqualifi-cation is requested should not be limited, and, under para-graphs 1 and 2 of Article 11, decisions should be made inthe same manner and by the same quorum.

Article 13

11. The functions of the procuracy should be separatedfrom those of the court. Since the prosecutor has to bearthe principal burden in the conduct of investigations andprosecutions, his status must be clearly determined and


separated from the status of other parties which mightappear before the court and the court itself. Accordingly,the election and the functions of the procuracy should beregulated in greater detail.

12. The prosecutor could also be elected by the GeneralAssembly from among candidates from various countrieswho would apply under the same conditions as judges.

13. Furthermore, in addition to the request of a Stateconcerned, the prosecutor could institute proceedingshimself or at the initiative of the Security Council if thereis a well-founded suspicion that a war crime has beencommitted.

Articles 15 to 18

14. The loss of office should be regulated in the samemanner as the Statute of the International Court of Justice.The Yugoslav Government considers it unacceptable thatthe loss of office is decided by the court, i.e. two thirds ofthe judges. It is of the opinion that this brings into ques-tion the independence the procuracy must have.

Article 19

15. The Yugoslav Government considers that this arti-cle (or a number of articles) of the draft statute should pro-vide for the fundamental rules and general principlesrelating to the procedure and evidence.

20. As to the cases under article 26 of the draft, theYugoslav Government is of the opinion that in that casethe court could have a subsidiary jurisdiction, i.e. that itsjurisdiction should depend on the consent of the Statesconcerned.

21. As to the possibility that the Security Council may,on the basis of its authority, submit a case to the court, theYugoslav Government considers that the Security Councilcould not, in such cases, act as a prosecutor, i.e. identifycertain persons as the accused. Within its competences tomaintain international peace and security, the SecurityCouncil should be enabled to draw the attention of thecourt/the prosecutor to the cases of aggression, while theprosecutor will conduct an investigation and prosecution.

Article 29

22. Since the role of the Security Council in the com-mencement of prosecution before the court must differfrom the role of the prosecutor, a difference should bemade between the requests submitted by States and theinitial act of the Security Council. While States' requestsshould contain evident facts necessary for conductingcriminal proceedings (i.e. identification of the accused,valid evidence, description of crimes, etc.), the initial actof the Security Council should not be corroborated in sucha manner but should point to an aggression, i.e. provide anindication for the prosecutor to conduct investigationswhen crimes under article 22 of the draft are in questionfor which, in the opinion of the Yugoslav Government, thecourt should have the obligatory jurisdiction.

Articles 22 to 26

16. The Yugoslav Government is in favour of the court'shaving ratione personae jurisdiction to prosecute onlyindividuals.

17. The jurisdiction of the court ratione materiae in thecases under article 22 of the draft statute should be ob-ligatory for all States parties to the statute, without pro-viding for the possibility that the matter of the court'sjurisdiction be left to the will of States and possible reser-vations.

18. If the proposal contained in article 23 is accepted,the purpose and functions of the international criminalcourt will be challenged. The Yugoslav Government con-siders that, in order to function effectively, the interna-tional criminal court should be vested with the authorityto establish criminal responsibility and enforce sanctionsin a generally accepted minimum of cases, always bearingin mind the sovereignty of States. The list of crimes inarticle 22 and possible supplements (e.g. as proposed inthe case of mercenaries) is the optimum, in view of thestructure and gravity of crimes and their consequences forwhich consensus of States should be obtained withrespect to the obligatory jurisdiction of this court.

19. In this context, the court's jurisdiction for the crimesunder Article 22 should not be made contingent on theconsent of the State of the accused or the State in whichthe crime was committed, if these States are signatory tothe statute.

Articles 30 to 32

23. The Yugoslav Government considers that revisionof a case should be provided for if the prosecutor decidesnot to proceed, i.e. that this rule should not be transferredto the bureau of the court.

24. Arrest and the issuance of a warrant prior to anindictment should be ordered only by court chambers, notby the bureau. It would also be justified to determine thelength of detention.

25. The indictment prepared by the prosecutor could besubmitted for discussion only to a court chamber whichshould determine whether or not aprimafacie case exists.

26. All this indicates that, prior to an indictment by thecourt, there should exist a court chamber with the jurisdic-tion for all these acts.

Articles 3 7 and 38

27. Chambers of the court should be established on thebasis of the rules of procedure to be adopted by the court,not only on the basis of the members of the bureau.

28. Challenges to the jurisdiction in every concrete casecan be made only by the States concerned in a dispute, notby any State party to the statute, proceeding from the prin-ciple of efficient proceedings. The accused should also beenabled to challenge the court's jurisdiction prior to theindictment by the court or the trial itself which should be


the subject of the decision made by the court or a courtchamber.

Article 44

29. The Yugoslav Government considers that para-graph 1, article 44, is contrary to paragraph 3 (d),article 14, of the International Covenant on Civil andPolitical Rights providing for the right of the accused tobe present at the trial, which is one of the guarantees of theright to a fair trial. The possibility for the internationalcriminal court to try in absentia, contrary to one of thebasic international law conventions, would question theauthority of the court, while the impossibility of enforcingthe penalty would question its efficiency. The GeneralAssembly and the Security Council are already in theposition to establish a kind of moral sanction on the basisof their powers, so that there is no need for a court to dothis.

Article 45

30. The Yugoslav Government considers unacceptablethe possibility that the court may review a decision of thenational court under article 45, paragraph 2 (b). If thereare grounds for suspicion regarding the impartiality of thenational court, the second-instance proceedings could beconducted before the international criminal court whichwould then act as an appellate court.

Article 47

31. Evidence collected in contravention of the relevantprovisions of international law should not be taken intoaccount nor should the court assess their validity.

Articles 55 to 57

32. The right to appeal against a decision of the courtchamber should be provided both to the convicted and tothe prosecutor. This right should be time-limited for bothparties. However, this right of the prosecutor could belimited (but not completely excluded) in the case ofacquittal.

33. The Yugoslav Government considers that thebureau, when discussing articles 30 to 32 of the draft,should not constitute the Appeals Chamber. This mattershould be regulated in advance.

34. The most acceptable solution would be that theappeal is decided on by all the judges in the plenary,except those who made the first-instance decision.

35. In view of the provision of article 14, paragraph 7,of the International Covenant on Civil and PoliticalRights, the prosecutor should not be allowed to requestthe revision of judgement to the detriment of the con-victed, i.e. in the case of acquittal (as provided inarticle 57).

Article 63

36. An order for the arrest and surrender of the accusedcan be issued only by the court chamber.

37. Extradition of persons accused of the crimes underarticle 22 of the draft, provided the jurisdiction of thecourt is compulsory in this case also, should be obligatoryas well.

38. In other cases, extradition should depend onwhether a State concerned accepted the jurisdiction of thecourt. In that case, the solution in article 63, para-graph 3 (b) is acceptable.

II. Observations received from a non-member State

Switzerland


GENERAL COMMENTS

1. The International Law Commission, its Special Rap-porteur, Mr. Doudou Thiam, and the Working Group areto be congratulated for having adapted so rapidly to theconstantly changing requirements of the internationalsituation and preparing, in such a short period of time, thedraft statute for an international criminal court, on whichwe wish to offer the following comments. It is true that thetask of the Working Group and of the Commission hasbeen facilitated to some extent by the excellent report of

the Secretary-General of the United Nations concerningthe establishment of an ad hoc international tribunal forthe prosecution of persons alleged to be responsible forserious violations of human rights in the territory of theFormer Yugoslavia since 1991, (referred to below as theInternational Tribunal for the Former Yugoslavia).

2. It is clear, none the less, that the establishment of apermanent international criminal jurisdiction poses prob-lems that are even more difficult than the creation of a tri-bunal whose jurisdiction is limited to crimes committed inthe former Yugoslavia. In the latter case, the statute of thetribunal became immediately applicable to all StatesMembers of the United Nations on the basis of Article 25

1 Report drawn up pursuant to paragraph 2 of Security Council reso-lution 808 (1993) and submitted on 3 May 1993 (S/25704 and Corr.land Add. 1).


of the Charter of the United Nations, since it was incorpo-rated into resolution 827 (1993) adopted by the SecurityCouncil under Chapter VII of the Charter.

3. It must be remembered that this exceptional approachcannot be followed in the establishment of a permanentinternational court, and we shall therefore be obliged touse the treaty approach. Only those States which so desirewill become parties to the proposed convention. The fearis, however, that those countries whose nationals have lit-tle or nothing to be reproached for will be the ones toaccede to the treaty while other States will refrain fromdoing so, thereby depriving the new instrument of someof its usefulness. This is merely an observation and not acriticism of the International Law Commission. Indeed, itis difficult to see what approach other than the treatyapproach could be adopted.

4. The future international criminal court will thereforebe a jurisdiction in the service of the States parties to theconvention establishing it (art. 4) rather than in the serviceof all States Members of the United Nations. This situa-tion may be distinguished from that of the InternationalCourt of Justice, the "principal judicial organ of theUnited Nations" (Art. 92 of the Charter), which is gov-erned by a Statute to which all States automaticallybecome parties upon their admission to membership ofthe United Nations (Art. 93, para. 1, of the Charter). Thisautomatic quality is lacking in the proposed new criminalcourt, which cannot therefore become another of the"judicial organs" of the United Nations, as contemplatedin the text bracketed in article 2 of the draft and as sug-gested by a number of representatives who spoke on thematter in the Sixth Committee of the General Assembly.2

The Swiss Government is of the view that efforts shouldbe aimed at another approach—that of the independenceof the court, which should, nevertheless, be linked to theUnited Nations through a cooperation agreement.


Part 1 (arts. 2 to 21)

5. Part 1 of the Commission's draft deals with theorganization of the proposed international jurisdiction.The new tribunal would comprise the court, consisting of18 members of different nationalities elected for a singleterm of 12 years, the procuracy, and the registry with itsappropriate staff.

6. These three organs, including the procuracy, wouldappear to be quite essential. Indeed, it is difficult to seehow States that file complaints could themselves under-take the prosecution. The general approval thus given bythe Swiss Government to part 1 of the draft articles in noway implies that it agrees with all the institutional provi-sions of the draft. It finds the number of judges, 18, exces-sive (art. 5)—even the International Court of Justice mustmake do with 15 members—and would prefer the exam-ple of article 12 of the statute of the International Tribunalfor the Former Yugoslavia, which provides for 11 judges(divided into two Trial Chambers with three members

2 Official Records of the General Assembly, Forty-eighth Session,Sixth Committee, 17th to 28th meetings.

each, and an Appeals Chamber consisting of five judges).The review clause contained in draft article 21 would fur-ther permit the number of members of the court to beincreased in accordance with the workload. The SwissGovernment also finds excessive the length of thenon-renewable terms of the judges, which is set at 12years (art. 7, para. 6), and proposes that it should bereduced to nine years.


7. Part 2 of the draft statute, entitled "Jurisdiction andapplicable law", lists those crimes over which the courtmay have jurisdiction and the limits of such jurisdiction.It draws a distinction between what are defined as inter-national crimes by the treaties that provide for the sup-pression of such crimes (art. 22) and the "undesirable con-duct" that is punishable under customary internationallaw or treaty law. Even for those crimes falling into thefirst category, the court does not have absolute jurisdic-tion; the State in question, which is identified with the aidof the criteria set out in article 24, must have accepted itsjurisdiction.

8. Article 23 offers three alternative modalities of suchacceptance. The Swiss Government prefers alternative B:the presumption of acceptance of the court's jurisdictionfor the international crimes listed in article 22; and theneed for a unilateral declaration of acceptance for the"conduct" referred to in article 26.


9. Part 3 of the draft concerns mainly the indictment andcommencement of prosecution. Possible complainantswho may refer a case to the prosecutor include a State(whether or not it is a party to the proposed convention)which has jurisdiction with respect to the crime in ques-tion and which has accepted the court's jurisdiction overthis type of crime, and the Security Council of the UnitedNations (art. 25) in respect of those crimes referred to inarticle 22 and the "conduct" that is punishable undergeneral international law (art. 26, para. 2 (a)).

10. The precise scope of draft article 25 is unclear: thisprovision should either give rise to the automatic jurisdic-tion of the court in respect of cases brought before it bythe Security Council, or retain the requirement, laid downin articles 23 and 26, for acceptance of the court's juris-diction by the State concerned. It is essential for the draftstatute or the commentaries thereto to dispel all doubts inthat regard. The Swiss Government would have seriousreservations about subscribing to the former interpreta-tion if the Commission decided to retain it. In otherwords, it believes that the requirement of the consent ofthe State in question should also exist for cases that aresubmitted to the court by the Security Council.

11. Again with respect to the commencement of pros-ecution, it is difficult to understand why the Commissionshould refuse to authorize the procuracy of the tribunal toinitiate an investigation on the basis of informationreceived, even if there is the possibility that the investiga-tion might conclude that the court has no jurisdiction to


hear the case. The solution proposed in the draft articlesdiffers from that adopted in article 18 of the statute of theInternational Tribunal for the Former Yugoslavia, whichis preferred by the Swiss Government.

12. Still in part 3 of the draft articles, we also considerthat the commentary to draft article 31 confers virtuallyunlimited discretion on the court in the matter of pre-trialdetention. If it is impossible to limit the duration of deten-tion, the Government of Switzerland believes that, at thevery least, a mechanism should be established to permitthe detainee to request his release on bail.


13. Part 4 of the draft statute deals with the trial. One ofthe first questions to be raised in this regard is the invita-tion addressed by the Commission to States in para-graph 6 (b) of the commentary to article 38 to reply to thequestion of whether, as in the case of States (art. 38,para. 3), accused individuals should have the option tochallenge the court's jurisdiction. Given that the objectiveof the draft statute is precisely to establish the interna-tional criminal responsibility of individuals, in the SwissGovernment's view there can be no reason whatsoever todeny them this option.

14. Article 53 deals with applicable penalties. We notethat the scale of penalties provided in this article isextremely flexible, ranging from imprisonment for a non-specified minimum term to life imprisonment, and that itauthorizes fines of "any amount". It is true that in deter-mining penalties, the court "may have regard to" (art. 53,para. 2) the criminal law of various States and aggravatingor mitigating factors (article 54). Nevertheless, these rulesseem to be too vague to do justice to the principle oinullapoena sine lege. Their clarity would be enhanced if arti-cle 53 provided that the trial chamber must (rather than"may") have regard to the penalties provided for in thenational laws of the States in question.

15. Article 44, paragraph 1 (/?), of the draft excludes thepossibility of trials in absentia. According to the com-mentary to this provision, this possibility was excludedlargely because of article 14 of the International Covenanton Civil and Political Rights, which requires the presenceof the accused at the trial. The Commission has thus fol-lowed the precedent established for the International Tri-bunal for the Former Yugoslavia,3 which has been deniedthe option of conducting trials in absentia for the samereason. This reason, however, does not appear to be deci-sive, at least in so far as a procedure would permit the con-victed person to appeal on the grounds that he was tried inabsentia. The key question is whether the power to try andto convict in absentia does not carry the risk of transform-ing the court into a totally ineffectual body. The Govern-ment of Switzerland believes that this is a very real dangerand that article 44, paragraph 1 (h) should therefore bereplaced by a provision which unconditionally prohibitstrials in absentia.

S/25704 (footnote 1 above), para. 101.


16. Part 5 of the draft, entitled "Appeal and review",provides a recourse procedure for convicted individualswhose appeals are based on material errors of fact or oflaw, or on a manifest disproportion between the crime andthe sentence (art. 55). While this provision should bemaintained, it nevertheless raises a further problem.

17. International human rights instruments (Interna-tional Covenant on Civil and Political Rights, art. 9,para. 4; European Convention for the Protection ofHuman Rights and Fundamental Freedoms, art. 5, para. 4;American Convention on Human Rights, art. 7, para. 6)require national legislations to provide for recourseagainst arbitrary arrests. The draft articles should there-fore authorize the introduction of an internal recourse pro-cedure against arbitrary arrest when the aim is to bring asuspect before the court. The grounds on which suchrecourse may be based should, however, be strictly lim-ited and largely procedural. Moreover, the time limits forthe institution of recourse proceedings should be as shortas possible.


18. Lastly, part 6 of the draft lists important obligationsin criminal matters for States parties to the statute of thefuture court, particularly in the following five areas: thelocation of persons; the taking of testimony; the produc-tion of evidence; the arrest and surrender of the accused;and the application of interim measures (arts. 58 to 63).Indeed, the cooperation thus contemplated between thenational administrative and judicial authorities on the onehand and the court on the other seems to be essential inorder to ensure the effective functioning of the court. Inthis connection, however, the draft fails to pronounce onthe surrender of nationals (see article 63); this silence nodoubt means that such surrender may be demanded by thecourt. However, certain countries refuse to extradite theirnationals. Would it therefore not be preferable to deter-mine the fate of the nationals of the State concerned byapplying to it the principle of aut dedere autjudicarel

CONCLUSIONS

19. The preceding comments, which are based partly onthe experience gained from the establishment of the Inter-national Tribunal for the Former Yugoslavia and partly onthe problems that are currently being encountered inimplementing its statute through national legal systems,are far from being exhaustive. They should not cause usto lose sight, however, of the fact that this thoughtful andvaluable draft is also very timely. It therefore has the sup-port of the Swiss Government. It is now important not tolose momentum and to take advantage of the keen interestwhich both States and the general public have shown inestablishing an international criminal jurisdiction of apermanent nature.

20. We must act quickly and with determination. TheGovernment of Switzerland sincerely hopes that theCommission will conclude its work on this topic duringthe course of its forty-sixth session (1994).

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