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The ILC Adopts a Statute for an International Criminal Court

Published online by Cambridge University Press:  27 February 2017

James Crawford
James Crawford*
Affiliation:
University of Cambridge; ILC Working Group for an International Criminal Court (1994)
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Extract

As an offshoot of its work on a Code of Crimes against the Peace and Security of Mankind, the International Law Commission has for the past several years been working on the idea of an international criminal court. At its forty-fourth session in 1992, the Commission established a working group, which laid down basic parameters for a Draft Statute. The general approach of the working group was endorsed by the Commission and by the General Assembly in 1992. At its forty-fifth session in 1993, the Commission received the report of a working group containing a Draft Statute for an International Criminal Tribunal and, without formally adopting the text, referred it to the General Assembly for comment. The 1993 Draft Statute gave effect to the general approach adopted in 1992, but with a number of modifications and refinements and with much further detail. The General Assembly “took note with appreciation” of the Draft Statute and invited the Commission to continue its work “as a matter of priority,” with a view to elaborating a final draft, if possible, at its 1994 session.

Type
Current Developments
Information
American Journal of International Law , Volume 89 , Issue 2 , April 1995 , pp. 404 - 416
Copyright
Copyright © American Society of International Law 1995

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References

1 In 1991 the Commission adopted a Draft Code of Crimes on first reading. Progress on the draft code was hampered, inter alia, by the unresolved issue of its links with a possible international criminal court. In effect, the ILC in the period 1992–1994 separated the latter issue from the question of the draft code. Work on the second reading of the draft code has recommenced. See Twelfth Report on the Draft Code of Crimes against the Peace and Security of Mankind, Submitted by Doudou Thiam, UN Doc. A/CN.4/460 (1994). For an account of the earlier work on these issues, see Report of the International Law Commission on the work of its forty-second session, UN GAOR, 45th Sess., Supp. No. 10, paras. 93–157, UN Doc. A/45/10 (1990). See also M. Cherif Bassiouni, Commentaries on the International Law Commission's 1991 Draft Code of Crimes Against the Peace and Security of Mankind (Nouvelles Etudes Pénales No. 11, 1993).

2 Report of the International Law Commission on the work of its forty-fourth session, UN GAOR, 47th Sess., Supp. No. 10, UN Doc. A/47/10 (1992); see especially Report of the Working Group on the Question of an International Criminal Jurisdiction, id. at 143–98 [hereinafter Working Group Report]. See also GA Res. 46/54, UN GAOR, 46th Sess., Supp. No. 49, at 286, UN Doc. A/46/49 (1992).

3 GA Res. 47/33, UN GAOR, 47th Sess., Supp. No. 49, at 287, paras. 4–6, UN Doc. A/47/49 (1992).

4 See Report of the Working Group on the Question of an International Criminal Jurisdiction, in Report of the International Law Commission on the work of its forty-fifth session, UN GAOR, 48th Sess., Supp. No. 10, at 255–335, UN Doc. A/48/10 (1993). The text of the 1993 Draft Statute is reprinted in 33 ILM 253 (1994). For commentary, see James Crawford, The ILC's Draft Statute for an International Criminal Tribunal, 88 AJIL 140(1994).

5 GA Res. 48/31, UN GAOR, 48th Sess., Supp. No. 49, at 328, paras. 4, 6, UN Doc. A/48/49 (1993).

6 The main reason was that ILC members had not had the opportunity for a full debate on the text as it emerged in 1993, although the principles underlying the text had been discussed at some length. A general debate on the text did not occur until the first week of the 1994 session. For a summary of that debate, see Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 29–40, UN Doc. A/49/10 (1994) [hereinafter 1994 ILC Report].

7 See Comments of Governments on the Report of the Working Group on a Draft Statute for an International Criminal Court, UN Doc. A/CN.4/458 & Adds. 1–7 (1994).

8 See especially Amnesty International, Establishing a Just, Fair and Effective International Criminal Court (1994). Although this document was not published until October 1994, an earlier draft had been made available to the Commission.

9 For the text of the 1994 Draft Statute and commentaries, see 1994 ILC Report, supra note 6, at 43–161. The report of the working group is UN Doc. A/CN.4/L.491/Rev.2/Adds. 1 & 2 (1994).

10 See SC Res. 827, UN SCOR, 48th Sess., Res. & Dec, at 29, UN Doc. S/INF/49 (1993); Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808, UN Doc. S/25704 (1993), reprinted in 32 ILM 1159(1993).

11 See International Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, UN Doc. IT/32 (1994), reprinted in 33 ILM 484 (1994). On the Tribunal, see also A.B.A., Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia (1993); M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 AJIL 784 (1994); Alain Pellet, Le Tribunal criminel international pour l'ex-Yougoslavie, 98 Revue Générale de Droit International Public 7 (1994); Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AJIL 78 (1994); Jordan Paust, Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 Am. U.J. Int'l L. & Pol'y 499 (1994); Ruth Wedgwood, War Crimes in the Former Yugoslavia: Comments on the International War Crimes Tribunal, 34 Va. J. Int'l L. 267 (1994); Ralph Zacklin, Bosnia and Beyond, id. at 277; Carsten Hollweg, Le Nouveau Tribunal international de l'ONU et le conflit en ex-Yougoslavie: un defi pour le droit humanitaire dans le nouveau ordre mondial, 110 Revue de Droit Public et de la Science Politique en France et à l'Etranger 1359 (1994); Karine Lescure, Le Tribunalpénal International pour l'ex-Yougoslavie (1994).

12 See Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK), Provisional Measures, 1992 ICJ Rep. 3 (Order of Apr. 14). See also Libya: Decision of General People's Congress, 1992 Keesing's Record of World Events 39,030; Arab League Mediation Efforts, id. at 38,883; Arab League Says Lockerbie Proposal Correct, Reuters, Jan. 7, 1995, available in LEXIS, News Library, Allnews File; Kadhafi to Visit Egypt, Agence France Presse, Dec. 31, 1994, available in LEXIS, News Library, Allnews File.

13 See 1994 Keesing's Record of World Events 40,126, 40,166–67, 40,214, 40,264.

14 See Serb Accused of 10 Murders Faces Trial by War Tribunal, Daily Telegraph (London), Nov. 9, 1994, at 17. For the Tribunal's rules on assignment of defense counsel and detention pending trial, see 33 ILM 1576, 1591 (1994). The Tribunal's first annual report usefully summarizes its work so far, UN Doc. A/49/342 (1994).

15 SC Res. 955 (Nov. 8, 1994) (establishing the Rwandan International Tribunal; adopted by 13 in favor, 1 against (Rwanda) and 1 abstention (China)), reprinted in 33 ILM 1600 (1994).

16 GA Res. 49/53, paras. 1,2, 6 (Dec. 9, 1994) (adopted without a vote).

17 Among the considerable recent literature on international criminal jurisdiction, see Joel Cavicchia, Prospects for an International Criminal Court in the 1990's, 10 Dick. J. Int'l L. 223 (1992); M. Cherif Bassiouni & Christopher L. Blakesley, The Need for an International Criminal Court in the New International World Order, 25 Vand. J. Transnat'l L. 151 (1992); Timothy C. Evered, An International Criminal Court: Recent Proposals and American Concerns, 6 Pace Int'l L. Rev. 121 (1994); M. Cherif Bassiouni, Draft Statute International Criminal Tribunal (Nouvelles Etudes Pénales No. 9, 1992); Christian Tomuschat, A System of International Criminal Prosecution is Taking Shape, Int'l Comm'n of Jurists, Rev., June 1993, at 56; Michael P. Scharf, Getting Serious about an International Criminal Court, 6 Pace Int'l L. Rev. 103 (1994); Paul Tavernier, Vers une juridiction pénale internationale? in C.-H. Thuan & Alain Fenet, Mutations internationales et évolution des normes 137 (1994); Christopher L. Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 Fletcher F. on World Aff. 77 (1994).

18 On state crimes, see especially Fifth Report on State Responsibility, Submitted by Gaetano Arangio-Ruiz, UN Doc. A/CN.4/453 & Adds. 1–3 (1993); International Crimes of State: A Critical Analysis ok the Ilc's Draft Article 19 on State Responsibility (Joseph H. Weiler, Antonio Cassese & Marina Spinedieds., 1989).

19 The importance of the media may be shown by the fact that in the case of rather similar, but internationally less visible, violations (e.g., in Burundi and Sudan) nothing was done. On Burundi, see Human Rights Group Worries over Latest UN Inaction, Inter Press Service, Aug. 26, 1994, available in LEXIS, News Library, Allnews File; Burundi Toll May Top that of '72 Massacre, L.A. Times, Nov. 27, 1993, at 16; Burundi Soldiers Accused of Daily Killings, Agence France Presse, Nov. 26, 1993, available in LEXIS, News Library, Allnews File; Tribal Massacres Ravage Burundi, Wash. Post, Oct. 29, 1993, at A1. For reports of possible massacres in the Sudan, see Sudan: Reported Human Rights Violations, 1993 Keesincs Record of World Events 39,307; The Silent Killing Fields, Christian Sci. Monitor, Aug. 4, 1993, at 19; Clerics Accuse Army of Genocide, The Independent (London), Sept. 3, 1992, at 10; Amnesty Report on November 1991 Killings, 1992 Keesing's Record of World Events 38,855.

20 For an analysis of these standards, see Stephanos Stavros, The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights (1993) (especially ch. 2). See also Dominic McGoldrick, the Human Rights Committee (1991) (especially ch. 10); M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections in National Constitutions, 3 Duke J. Comp. & Int'l L. 235 (1993).

21 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition of the Death Penalty, adopted by GA Res. 44/128, UN GAOR, 44th Sess., Supp. No. 49, at 206, UN Doc. A/44/49 (1989).

22 International Tribunal for the Former Yugoslavia, Report on the Assignment of Counsel, UN Doc. IT/59 (1994), reprinted in 33 ILM 1578 (1994), notes the limited budget available for legal aid, and states that all counsel acting for indigent defendants are “deemed to be acting on an idealistic basis.” The fees are set at $200 per day, decreasing to $80 per day over time. Directive on Assignment of Defence Counsel, UN Doc. IT/73/Rev.1 (1994), reprinted in 33 ILM at 1581.

23 See, e.g., Commonwealth Secretariat, Basic Documents on International Efforts to Combat Money Laundering (1991); Principles and Procedures for a New Transnational Law (Albin Eser & Otto Lagodny eds., 1991); Geoff Gilbert, Aspects of Extradition Law (1991); David McClean, Mutual Assistance in Criminal Matters: The Commonwealth Initiative, 37 Int'l & Comp. L.Q. 177 (1988).

24 See references cited in note 12 supra.

25 So far no woman has been elected to the ILC.

26 To be under such an obligation, states parties must have expressly accepted the Court's jurisdiction with respect to the crime in question. 1994 Draft Statute, supra note 9, at 131, Art. 53(2)(a)(ii).

27 Id., Arts. 26, 27.

28 Id., Art. 45(2), (5). In this respect the ILC proposal differs from the Statute of the Yugoslav Tribunal. See Art. 23(2) of the latter, Annex to Report of the Secretary-General, supra note 10, 32 ILM at 1192.

29 Working Group Report, supra note 2, para. 395.

30 1994 Draft Statute, supra note 9, Art. 21(1)(a).

31 Id., preambular paras. 2 & 3, and Arts. 26(4), 27(2)(b), 35.

32 Id., Arts. 53,54.

33 See, e.g., id., Arts. 26(6), 27(5)(b), 28, 29, 37, 39, 40, 41, 42, 44(5).

34 Under this system, 10 of the 18 judges must be persons with criminal trial experience; 8 must have recognized competence in international law. See id., Arts. 6, 7. A majority of any trial chamber must consist of judges with criminal trial experience. Id., Art. 9(5). Article 10 seeks to guarantee judicial independence; it provides, inter alia, that judges may not during their term of office be members of the legislative or executive branches of a national government or of a body responsible for the investigation or prosecution of crime.

35 Under id., Art. 19, the Rules are subject to the control of states parties to the Statute, although there is a simplified procedure for minor amendments.

36 But the “part-time” character of the judges may be transitional. States parties may decide, on the recommendation of the Presidency, that the workload of the Court is such that the judges should thereafter serve on a full-time basis. Id., Art. 10(4).

37 Id., preambular paras. 2, 3.

38 Defined as crimes “under a norm of international law accepted and recognized by the international community of States as a whole as being of such a fundamental character that its violation attracts the criminal responsibility of individuals.” See 1993 Draft Statute, supra note 4.

39 See 1994 Draft Statute, supra note 9, Art. 33.

40 1994 ILC Report, supra note 6, at 67–68.

41 1994 Draft Statute, supra note 9, Art. 20(e) & annex.

42 See id., Arts. 24, 26(1) & (4), 27(2)(a), 34.

43 The working group had treated the Torture Convention as a “suppression convention” under the 1993 Draft Statute. Under the 1994 Draft Statute, the issue of its proper classification does not arise.

44 For the general requirement of trial in the presence of the accused, see 1994 Draft Statute, supra note 9, Art. 37 (which in civil law terms adopts a limited system of trial par contumace rather than trial in absentia). This draws on the system developed by the Tribunal for Former Yugoslavia. See 1994 ILC Report, supra note 6, at 108–09.

45 1994 Draft Statute, supra note 9, Art. 23(3).

46 By comparison with the identification of the states whose consent is required (Art. 21), the issue of the ways in which consent should be given is subsidiary, although it also attracted much attention in the ILC's debates. The 1994 Draft Statute, supra note 9, Art. 22, provides for states parties to “opt in,” rather than the “opting out” system that had been included as an alternative in 1993. This allows consent to be given after the event, in the context of a supplemental system of jurisdiction. In many cases the states whose consent is required will not be identified before a complaint is brought under the Statute, and they may possibly be identified even later.

47 Id., Arts. 26(4), 27(1).

48 id., Art. 27(2)(b).

49 See 1994 ILC Report, supra note 6, at 113–14, for commentary. Certain individual guarantees under the Draft Statute go further than is required by international human rights standards, e.g., the non bis in idem principles formulated by Article 42. See id. at 117–19.

50 Italy offered to host the conference. Ghana (from the chair) was vociferous in support.

51 See GA Res. 49/53, supra note 16.

52 To judge from the literature referred to in notes 11 and 17 above.

53 E.g., Eva Steiner, Prosecuting War Criminals in England and in France, Crim. L. Rev., Mar. 1991, at 180; A. T. Richardson, The War Crimes Act 1991, 55 Mod. L. Rev. 73 (1992). In Australia, see Polyukovich v. R., 172 C.L.R. 501 (1992).

54 For a summary of the legal history of postwar war crimes trials in the Federal Republic of Germany, see Robert A. Monson, The West German Statute of Limitations on Murder: A Political, Legal, and Historical Exposition, 30 Am. J. Comp. L. 605 (1982).

55 During the ILC's debates, the working group considered a clause allowing amnesties to be taken into consideration on certain conditions. The proposal was rejected as raising too many difficult questions. However, an amnesty could be considered relevant under Article 35(a) of the Draft Statute, quoted at p. 413 supra. On the problem of amnesty at the national level, see Diane F. Orentlicher, Settling Accounts, The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991); and for a sample of South American experience, see Robert J. Quinn, Note, Will the Rule of Law End? Challenging Grants of Amnesty for Human Rights Violations of a Prior Regime: Chile's New Model, 62 Fordham L. Rev. 905 (1994).