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Establishment of an International Criminal Court

01-11-1995 Statement

Report of the International Law Commission, United Nations, General Assembly 50th session, 1 November 1995. Statement by the International Committee of the Red Cross (ICRC)

Mr Chairman,

On behalf of the International Committee of the Red Cross (ICRC) I would like to thank you for this opportunity to speak to the Sixth Committee. As the ICRC has stated at previous sessions of the General Assembly and elsewhere, it is interested in developments regarding the repression of war crimes because these are matters relating directly to the implementation of international humanitarian law. This body of law lays down the obligation to punish the grave breaches it defines, and if the mechanism formally established by it were actually put into effect, it would ensure that breaches were dealt with impartially and in all circumstances. The Security Council's creation of ad hoc tribunals is a response to that mechanism's ineffectiveness on the ground in armed conflicts. The ICRC has welcomed, as a key contribution to the implementation of international humanitarian law, the setting up of such tribunals for the former Yugoslavia and for Rwanda. However, they are but one stage in a process that must eventually culminate in the establishment of a permanent court whose jurisdiction covers, among other things, all war crimes. And that is why today's deliberations are so important.

I would like to make a few remarks about Article 20 of the Draft Statute for an International Criminal Court , and about Article 22 of the Draft Code of Crimes against the Peace and Security of Mankind .

The ICRC representative has addressed the Ad Hoc Committee on the Establishment of an International Criminal Court with regard to Artic le 20 of the Draft Statute, entitled " Crimes within the jurisdiction of the Court " (in doc. A/49/10, p. 70). It noted with satisfaction that subparagraph (e), by its Annex, includes by reference the grave breaches laid down in the 1949 Geneva Conventions and Protocol I additional thereto of 1977. That reference is important in that the Conventions are universally recognized. Though Protocol I has not yet achieved the same universal acceptance, attention must be firmly drawn to the essential provisions it contains, many of which have the force of customary law.

Though the value of the instruments referred to in subparagraph (e) of Article 20 is beyond question, we feel it is nevertheless correct to consider that the Statute would not impose any obligations upon States on the basis of treaties to which they are not party. Reference to those instruments would, however, lay down guidelines for the Court, enabling it to decide on its own jurisdiction in cases involving " exceptionally serious crimes of international concern " , though this concept still requires clarification.

Moreover, as the provisions of the Geneva Conventions and Protocol I on the repression of war crimes are only applicable to international armed conflicts, the future Statute should include in the Court's jurisdiction the serious violations of the law of non-international armed conflict. It should be noted that subparagraph  (c) of Article 20 on " serious violations of the laws and customs applicable in armed conflict " assigns to the Court a jurisdiction going beyond the grave breaches defined by the Geneva Conventions and Protocol I. This provision can, in particular, cover crimes committed in non-international armed conflicts. The Trial Chamber and Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia have adopted this approach in their decisions on jurisdiction.

Mr Chairman,

As you know, the ICRC has also studied very closely the Draft Code of Crimes against the Peace and Security of Mankind . Two years ago, Article 22 of the draft, entitled " Exceptionally serious war crimes " at the time, was the subject of several observations made by the ICRC to the Sixth Committee. In the new draft text, the Special Rapporteur has chosen to return, in both the title and text, to the widely accepted term " war crimes " , thus abandoning the wording " exceptionally serious war crimes " . The ICRC welcomes this change as " exceptionally serious war crimes " was equivocal in meaning and implication.

The new draft article opts for a restrictive approach in its first paragraph and refers to the violations defined as " grave breaches " by the Geneva Conventions. To those should be added unlawful confinement , a grave breach under Article 147 of the Fourth Geneva Convention. In this connection, there is an error in the French version of subparagraph (f) of Article 22: the words "une personne" should be replaced by "un prisonnier" , to correspond to the English version. In addition, in international humanitarian law the concept of grave breaches covers not only the acts defined as such in the Geneva Conventions of 1949, but also those specified in Article 85 of Additional Protocol I of 1977. In order to ensure that the list of grave breaches is comprehensive as regards international humanitarian law, it would therefore be appropriate to add to draft Article 22 the breaches listed in Protocol I.

In any case, it would be difficult to imagine war crimes such as " making the civilian population or individual civilians the object of attack " , which is a grave breach under Article 85, paragr aph 3, subparagraph (a) of Protocol I, not being covered by the Code. Its inclusion would be in line with the Statute for an International Criminal Court, Article 20, subparagraph (e) of which, as I have pointed out, includes the relevant provisions of the four Geneva Conventions and Protocol I by referring to the texts listed in the Annex (in document A/49/10, pages 141 and 147-150).

Finally, as the ICRC has already pointed out, the new draft article proposed by the Special Rapporteur refers in its second paragraph to " the laws and customs of war " , giving examples of breaches of the law governing the conduct of hostilities but also specifying that those examples are not exhaustive. Despite the commendably broad interpretation of " the laws and customs of war " that has been made by the International Criminal Tribunal for the Former Yugoslavia, the ICRC would prefer a more explicit reference to the treaty-based and customary rules which also govern non-international armed conflicts.

Mr Chairman,

The grave and repeated violations of international humanitarian law now being committed in all too many armed conflicts demand a vigorous response from the international community. The International Committee of the Red Cross is convinced that your work reflects the firm resolve to ensure effective repression of all war crimes, with all the dissuasive impact required.

Thank you Mr. Chairman.

Ref. Un(1995)28b