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Establishment of an international criminal court

28-10-1996 Statement

United Nations General Assembly, 51st Session, Sixth Committee, Agenda items 147, 28 October 1996. Statement by the International Committee of the Red Cross (ICRC).

Mr. Chairman,

On behalf of the International Committee of the Red Cross (ICRC), I should first of all like to thank you for this opportunity to address the Sixth Committee. At earlier sessions of the General Assembly and also in other fora, the ICRC has already advocated the establishment of an international criminal court and expressed its views on the development of the law for the repression of serious violations of international humanitarian law.

The ICRC acts as a neutral intermediary between warring parties in order to assist and protect the victims of armed conflict; it is neither an investigating body nor a judicial body competent to deal with violations of international humanitarian law. By working for the faithful application of that law, in close cooperation with the parties in conflict, the ICRC seeks to prevent violations and to put an end to them.

The ICRC also has the mandate to promote respect for humanitarian law and to enhance its implementation. The means for implementation include repression mechanisms, which are important not only because sanctions form an integral part of any properly constituted legal system, but also because they serve as a deterrent. International humanitarian law already provides for a repression mechanism that imposes on States the obligation to initiate legal proceedings and to seek out persons alleged to have committed grave breaches, wherever they may be. Thus, if this system were implemented, it would ensure efficient and impartial repression of breaches in all circumstances. It must be acknowledged, however, that the reality is quite different.

In this context, the establishment by the Security Cou ncil of ad hoc international tribunals to prosecute violations of international humanitarian law committed in the former Yugoslavia and in Rwanda is a clear breakthrough. The creation of these tribunals gives some hope of putting an end to the reign of impunity in both internal and international conflicts; the ICRC interprets this as a sign of the international community's refusal to tolerate barbarity. Yet, this can only be regarded as a step forward if the setting-up of these ad hoc tribunals paves the way towards the establishment of a permanent international criminal court. Accordingly, the ICRC cannot but give its full support to the work of the Preparatory Committee on the establishment of an international criminal court.

The ICRC is convinced that an independent and impartial international criminal court will be able to strengthen respect for international humanitarian law and to enhance its implementation. In particular, the court should ensure that those perpetrating violations of the most fundamental principles of humanity are held accountable for their actions.

In drawing up a statute for the court, States must reach agreement on resolving such complex legal problems as the definition of crimes falling within the competence of the court; the trigger mechanism; the court's own, or inherent, jurisdiction; and the complementarity between the international criminal court and national courts.

Mr. Chairman,

In this regard, I should like, with your permission, to contribute to the Committee's deliberations by making a few more specific remarks on the future statute of the court which relate directly to international humanitarian law.

1. In carrying out its mandate, the ICRC is often confronted with the most serious crimes, before which the international community as a whole cannot remain indifferent and passive: in particular, war crimes, crimes against humanity and the crime of genocide.

The ICRC considers that the notion of " war crimes " - a designation which it prefers to that of " serious violations of the laws and customs applicable in armed conflict " - should also include grave breaches set out in Protocol I additional to the Geneva Conventions and serious violations committed in non-international armed conflicts, namely violations of Article 3 common to the said Conventions and of Additional Protocol II. Since the majority of armed conflicts today are internal in nature, it is imperative to see that the court's jurisdiction extends to this type of conflict. It will be noted that the ad hoc international tribunals for Rwanda and the former Yugoslavia cover, in full or in part, situations of internal conflict.

The ICRC supports a definition of crimes against humanity which would not include the requirement that such acts be committed in connection with an armed conflict, as this nexus no longer reflects positive law. Crimes against humanity are equally aberrant and unacceptable whether they are perpetrated during an armed conflict or not: in either case, the international community is bound to take action for the repression of such crimes.

Lastly, Mr Chairman, the ICRC is in agreement with a definition of the crime of genocide such as that provided for in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, a treaty which already envisages the competence of an international criminal court.

2. The inherent jurisdiction of the court should, in the ICRC's view, cover the above-mentioned three types of crime. The court should be established in order to provide an adequate judicial response to the gravity of such crimes. In addition, it should be competent as soon as one of those crimes is committed. It should be noted that imposing additional conditions , such as obtaining the consent of the State on whose territory the act was committed, that of the State of which the victims are nationals, that of the State of which the presumed perpetrator is a national, and that of other States concerned, would make it difficult for the court to function or might even give it a de facto optional character. Such an accumulation of conditions would run counter to the purpose of establishing the court and might render it ineffective. The universal jurisdiction that already empowers any State to prosecute those responsible for such acts, without requiring the agreement of any other State, would be implicitly weakened . As soon as a State becomes a Party to the statute of the court, it should thereby accept the court's competence and no longer have to give its consent for a case to be submitted to the court.

3. Another point which the ICRC regards as important is the trigger mechanism and, in particular, the assurance that the court does offer all the necessary guarantees of independence and impartiality. The draft as it now stands provides that while the Security Council is dealing with a situation covered by Chapter VII of the Charter, no prosecution arising from that situation may be commenced - unless the Council otherwise decides. It seems difficult, however, to reconcile the principle of an independent and impartial court with the fact that, in certain cases, the court would be dependent on the Security Council or subordinated to its action, and might thus be prevente d from performing its duties freely. The repression of war crimes, crimes against humanity and the crime of genocide, just like the application of humanitarian law in general, must be effected without taking into account either the nature or origin of the conflict or the causes upheld by the parties.

The ICRC is also of the opinion that the prosecutor must be empowered to initiate investigations and institute proceedings on his own initiative. Granting the prosecutor such powers would give the court greater impartiality and independence.

4. The final point which the ICRC would like to make concerns the principle of complementarity. This principle, set out in the draft statute, confirms the obligation for States to punish persons responsible for war crimes, crimes against humanity and the crime of genocide. Indeed, the international criminal court should not act as a substitute for national courts and thus detract from the existing duty of States to repress such crimes at the national level. In this connection, it should be pointed out that the ICRC intends to contribute to the efforts being made to strengthen implementation of humanitarian law at the national level through its Advisory Service recently set up for that purpose.

As was mentioned earlier, the obligation of States to prosecute violations of humanitarian law is often either ignored or very inadequately fulfilled in practice. It is therefore highly desirable to establish a permanent international jurisdiction which will make certain that the perpetrators of war crimes, crimes against humanity and the crime of genocide are brought to justice.

Mr. Chairman,

In conclusion, the ICRC wishes to reiterate its support for the creation of an international criminal court designed to ensure that the perpetrators of violations of international humanitarian law are punished. It welcomes the progress alrea dy made, while remaining fully aware that there are still many obstacles on the way leading to the adoption of the statute. The ICRC and the International Red Cross and Red Crescent Movement as a whole express the hope that future deliberations will be marked by firm political resolve on the part of the international community to bring about the establishment of an independent, efficient and impartial international criminal court.

Thank you, Mr. Chairman.

Ref. UN(1996)29,b