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The First Two Sessions of the Un Preparatory Committee on the Establishment of an International Criminal Court

Published online by Cambridge University Press:  27 February 2017

Christopher Keith Hall
Christopher Keith Hall*
Affiliation:
Amnesty International
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Type
Current Developments
Information
American Journal of International Law , Volume 91 , Issue 1 , January 1997 , pp. 177 - 187
Copyright
Copyright © American Society of International Law 1997

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References

1 GA Res. 50/46, UN GAOR, 50th Sess., Supp. No. 49, Vol. 1, at 307, UN Doc. A/50/49 (1995). See also Virginia Morris & M.-Christiane Bourloyannis-Vrailas, The Work of the Sixth Committee at the Fiftieth Session of the UN General Assembly, 90 AJIL 491, 496–97 (1996). The ILC draft statute and commentary are found in Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 44, UN Doc. A/49/10 (1994). For an excellent analysis, see James Crawford, The ILC Adopts a Statute for an International Criminal Court, 89 AJIL 404 (1995).

2 GA Res. 50/46, supra note 1, para. 2.

3 Id., para. 5.

4 No summary records of the Preparatory Committee’s work exist. This account is based on the author’s notes, as well as the working papers, government proposals, the committee’s report (Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Supp. No. 22, Vols. 1 & 2, UN Doc. A/51/22 (1996) [hereinafter Report]), press releases and excellent daily summaries prepared by the NGO Coalition for an International Criminal Court. Many of these documents are available on the Internet through the World Wide Web page on the international criminal court at. They are also available to anyone with an E-mail address by sending a message “subscribe ice-info”to. Users of an APC-affiliated network (IGC/Peacenet/Econet, GreenNet, Web) can obtain these documents on the un.icc computer conference.

5 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3.

6 The appellate chamber concluded that the term “laws or customs of war,” in Article 3 of the Yugoslavia Tribunal’s Statute, infranote 15, included common Article 3 and that violations of this article entailed international criminal responsibility. Prosecutor v. Tadic, UN Doc. IT-94-1-AR72, paras. 134, 137 (ICTY App. 1995), reprinted in 35 ILM 32, 71 (1996).

7 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 609.

8 SC Res. 955, annex (Nov. 8, 1994), reprinted in 33 ILM 1602 (1994).

9 Adopted in GA Res. 49/59, opened for signature Dec. 15, 1995, UN GAOR, 49th Sess., Supp. No. 49, Vol. 1, at 299, UN Doc. A/49/49 (1994), reprinted in 34 ILM 482 (1995). The United States indicated that it was interested in exploring the possibility of including attacks on personnel protected by this Convention within the jurisdiction of the ICC.

10 The Preparatory Committee did not have the benefit at its first session of the final version of the draft code, which was adopted by the ILC on July 8, 1996, at its 48th session, UN Doc. A/CN.4/L.532, and it was not discussed at the second session. See Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 14, para. 50, UN Doc. A/51/10 (1996).

11 Dec. 9, 1948, 78 UNTS 277, reprinted in 45 AJIL Supp. 7 (1951).

12 Article 6(c) of the Charter of the International Military Tribunal (Nuremberg Charter) contains the following definition:

Crimes against humanity, namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 58 Stat. 1544, 82 UNTS 280.

13 For example, Denmark stated that it preferred the list of crimes in the ILC Draft Code of Crimes against the Peace and Security of Mankind, supra note 10, Article 18 of which includes these crimes and also murder, extermination, enslavement, arbitrary deportation, persecution, institutionalized discrimination and other inhumane acts.

14 Control Council for Germany, Official Gazette, Jan. 31, 1946, at 50.

15 UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter Yugoslavia Statute].

16 The French delegation announced during the second session that it was no longer insisting on prior Security Council review of all state complaints.

17 These working papers did not represent the views of the governments concerned, as they were largely compilations or partial consolidations of government proposals at the first session or were based on existing international instruments, such as the Rules of Procedure and Evidence of the Yugoslavia and Rwanda Tribunals. They had been prepared for an informal meeting of government experts in their personal capacity, organized by the International Institute of Higher Studies in Criminal Sciences in Siracusa, Italy, and held July 10–14, 1996. This meeting was attended by observers from two NGOs, Amnesty International and Human Rights Watch, and the papers were revised in the light of that meeting.

18 The effectiveness of working groups could be improved. More effective coordination of scheduling and speedier translations of documents would help ensure the full participation of smaller delegations. The closed nature of four of the working groups meant that NGOs had difficulties in making helpful and timely contributions to the compilation and consolidation of proposals.

19 Almost all of the nongovernmental organizations present were members of the NGO Coalition for an International Criminal Court. The NGO Coalition publishes rapid and comprehensive documentation of UN work on drafting texts on an international criminal court, see note 4 supra, and helps to coordinate the work on the ICC of nearly 80 NGOs.

20 These papers included Amnesty International, Challenges Ahead for the United Nations Preparatory Committee Drafting a Statute for a permanent international criminal court (AI Index No. IOR 40/03/96, 1996), and Establishing a just, fair and effective international criminal court (AI Index No. IOR 40/05/94, 1994); Association Internationale de Droit Penal et al., 1994 ILC Draft Statute for an International Criminal Court with Suggested Modifications (Updated Siracusa-Draft) (1996); Human Rights Watch, Commentary for the Preparatory Committee on the Establishment of an International Criminal Court (1996); International Commission of Jurists, The International Criminal Court: Third ICJ Position Paper (1995); Justice for Humanity: Towards the Creation of a Permanent International Criminal Court, La Lettre Hebdomadaire de la FIDH (Special Issue, Int’l Fed. Hum. Rts. Leagues, Paris), Nov. 1995; Lawyers Committee for Human Rights, Establishing an International Criminal Court (1996), and Fairness to Defendants at the International Criminal Court (1996). Many useful papers were submitted by other NGOs.

21 GA Res. 50/46, supra note 1, para. 2.

22 This position is consistent with that of the majority of countries that have abolished this penalty in law or practice. Amnesty International, The Death Penalty: List of Abolitionist and Retentionist Countries (AI Index No. ACT 50/09/96, 1996).

23 Dec. 16, 1966, Art. 49(1), 999 UNTS 171.

24 GA Res. 39/46, annex, Art. 27(1), UN GAOR, 39th Sess., Supp. No. 51, at 197, UN Doc. A/39/51 (1984).

25 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 308, UN Doc. A/CONF.62/122 (1982), reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Jan. 13, 1993, Art. XXI, S. Treaty Doc. No. 21, 103d Cong., 1st Sess. (1993), reprinted in 32 ILM 800 (1993).

26 It was widely reported that Canada, on behalf of over 30 countries, supported by Trinidad and Tobago on behalf of the 13 members of the Caribbean Community (CARICOM), proposed that the Preparatory Committee recommend that the General Assembly convene the conference in 1997. It was also reported that the United States, supported by France and the United Kingdom, initially said that 1997 was “wildly unrealistic,” given the work that needed to be accomplished prior to a diplomatic conference, and that some of these countries argued that, because up to nine weeks of further preparatory work was needed, such a conference could not take place until at least 1998. The Russian Federation, China and Singapore reportedly made proposals that were closer to the U.S. position than to that of Canada.

27 Paragraphs were added to indicate that some delegations had expressed their concern that no date had been fixed for a diplomatic conference, Report, supra note 4, Vol. 1, at 75, para. 363, and that some believed that, to ensure an effective outcome, a date should have been fixed in 1997, id., para. 365.

28 Id. at 75–76, paras. 368, 370. Before the adoption of the conclusions, the Chinese representative expressed serious reservations about them, stating that the setting of a date for the diplomatic conference was a political issue that should be resolved by the Sixth Committee, but she said that, in a spirit of cooperation, she would not block adoption of the conclusions. On December 17, 1996, by its Resolution 51/207, the General Assembly decided that the Preparatory Committee should hold four sessions in 1997 and 1998 to complete the drafting of a convention and that a diplomatic conference would be held in 1998 to finalize and adopt a convention to establish the ICC.

29 The International Military Tribunal read its judgment on October 1,1946. On May 13,1947, M. Donnedieu de Vabres, the French judge who had served on the International Military Tribunal, as France’s representative on the General Assembly’s Committee on the Progressive Development of International Law and its Codification, proposed the establishment of an international criminal court, and submitted a memorandum on the subject two days later. Memorandum submitted by the delegate for France, Draft Proposal for the Establishment of an International Court of Criminal Jurisdiction, UN Doc. A/AC.10/21 (1947). Thirteen years before, France had proposed to the League of Nations the establishment of a permanent international criminal court to try cases of terrorism, but the two treaties defining the crimes and establishing the court adopted at a diplomatic conference in 1937 never entered into force. United Nations Secretary-General, Historical Survey of the Question of International Criminal Jurisdiction, UN Doc. A/CN.4/7/Rev.1, at 16–18 (1949).