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A New International Criminal Law Regime?*

Published online by Cambridge University Press:  21 May 2009

Timothy L. H. McCormack  and
Gerry J. Simpson
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Extract

Institution-building in international law is an architecture of compromise. The United Nations, poised to make one of its most ambitious institutional and theoretical leaps since the creation of the human rights system in Geneva, again finds itself caught between the impulse towards universalism and the hesitancies of statism. The institution in question is the proposed International Criminal Court.

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Article
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Netherlands International Law Review , Volume 42 , Issue 2 , August 1995 , pp. 177 - 206
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Copyright © T.M.C. Asser Press 1995

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References

1. See the Report of the Working Group on a Draft Statute for an International Criminal Court, in Report of the International Law Commission on Its Forty-Fifth Session, UN Doc. A/48/10 (1993) (hereinafter ILC Report 1993) at p. 255.

2. See GA Res. 48/31, 48 UN GAOR (73rd meeting) p. 500, UN Doc. A/RES/48/31 (1993), in which the General Assembly requested the ILC to revise the Draft Statute in the light of Sixth Committee discussions.

3. See the Report of the Working Group on a Draft Statute for an International Criminal Court, in Report of the International Law Commission on Its Forty-Sixth Session, UN Doc. A/49/10 (1994) (hereinafter ILC Report 1994).

4. See Text of the Draft Articles Provisionally Adopted by the Commission, in ILC Yearbook Vol. II Part II (1991), 46 UN GAOR, UN Doc. A/CN.4/SER.A/1991/Add.1 (Part 2), at pp. 94–97.

5. The first such attempt occurred in the 1950s. See the Report of the International Law Commission on its Third Session, 6 UN GAOR (Supp. No. 9) p. 11, UN Doc. A/ 1858 (1951), reprinted in Ferencz, B., An International Criminal Court: A Step Towards World Peace (1980) Vol. 2 at pp. 32–36Google Scholar (Draft Code of Offences Against the Peace and Security of Mankind, submitted in July 1951); Report of the International Law Commission on its Sixth Session, 9 UN GAOR (Supp. No. 9) 9, UN Doc. A/2693 (1954), reprinted in 2 YB Int. Law & Comm. (1954) p. 149, UN Doc. A/CN.4/SER.A/1954 (revised Draft Code of Offences Against the Peace and Security of Mankind, submitted in July 1954); Bassiouni, M.C., ‘The Time Has Come for an International Criminal Court’, 1 la. Int. & Comp. LR (1991) p. 7;Google ScholarBaez, J., ‘An International Crimes Court: Further Tales of the King of Corinth’, 23 Ga. J Int. & Comp. LR (1993) p. 289;Google ScholarFerencz, B., ‘The Draft Code of Offences Against the Peace and Security of Mankind’, 75 AJIL (1981) p. 674.Google Scholar

6. For a more detailed analysis of various aspects of the Statute see Crawford, J., ‘The ILC's Draft Statute for an International Criminal Tribunal’, 88 AJIL (1994) p. 140;Google Scholar and, by the same author, ‘The ILC Adopts a Statute for an International Criminal Court', 89 AJIL (1995) p. 404.

7. For a number of years the Sixth Committee of the General assembly had been discussing a Draft Code of Crimes Against the Peace and Security of Mankind and the concept of a Criminal Court had been linked to that proposal. While such a Code and a Criminal Court could be mutually complementary, the establishment of the Court is not dependent upon the existence of the Code. The decision was taken to make the two issues distinct and the Draft Statute for the Court now identifies a subject matter jurisdiction of the Court based on existing international customary and treaty law. The statements of representatives of several States to the Sixth Committee reflect an understanding that the Court and the Code are still closely related issues. However, the ILC strategy of facilitating separate discussions on the Code and the Court is a sensible one. The Draft Code contains many contentious provisions vis-à-vis existing international criminal law and agreement on its final content will involve a protracted process. Agreement on the subject matter jurisdiction of the Court should be less contentious because it is based on accepted international crimes. In any case, a Code in the absence of a Court is of dubious value and it is logical to focus efforts on the creation of a Court leaving negotiations for the content of a Code until it is clear whether or not the requisite political will exists for the creation of the Court. For problems associated with the proposed content of the Draft Code see McCormack, T.L.H. and Simpson, G.J., ‘The International Law Commission's Draft Code of Crimes Against the Peace and Security of Mankind: An Appraisal of the Substantive Provisions’, 5 Crim. LF (1994) p. 1.Google Scholar

8. Art. 36, Statute of the International Court of Justice.

9. The debate about whether the Court should be a standing body or one which convenes only when there are cases or in special circumstances is described in the ILC Report 1994, supra n. 6 at p. 32.

10. Most delegations agreed that the Court should be tangential to, but should not displace, the national judicial function. See, for example, the Statement by the Representative of the United Kingdom, 27 October 1994 at p. 1. See further ILC Report 1994, supra n. 6, at p. 44.

11. This was emphasised by a number of delegations. See, for example, the Statements of the Representatives of: Canada, 26 October 1994 at p. 3; Germany, 27 October 1994 at p. 1; Austria, 25 October 1994 at p. 4; and China, 26 October 1994 at p. 2.

12. For scepticism about whether this is conceptually possible, see, for example, Weil, P., ‘Relative Normativity in International Law’, 77 AJIL (1983) p. 413.Google Scholar

13. Convention for the Peaceful Settlement of International Disputes, July 19, 1899; 32 Stat. 1779, 26 Martins Nouveau Recueil (2nd series) p. 720.

14. Division of International Law, Carnegie Endowment for International Peace, pamphlet No. 32 (1919), reprinted in 14 AJIL (supp. 1920) p. 95. See generally Dadrian, V.N., ‘Genocide as a Problem of National and International Law: the World War I Armenian Case and its Contemporary Legal Ramifications’, 14 Yale J Int. L (1989) p. 221,Google Scholar and Bassiouni, loc. cit. n. 5, at pp. 2–4.

15. See, Bassiouni, M.C., and Blakesley, C.L., ‘The Need for an International Criminal Court in the New World Order’, 25(2) Vanderbilt J Trans. L (1992) p. 151Google Scholar at p. 153; Matas, D., ‘Prosecuting Crimes Against Humanity: the Lessons of World War I’, 13 Fordham Int. LJ (1989) p. 86.Google Scholar

16. ILA, , Proposal for an International Criminal Court, Reportof the Thirty-Fourth Conference of the International Law Association, Vienna, 08 11, 1926, reprinted in Ferencz, op. cit. n. 5, Vol. 1 at pp. 252–268.Google Scholar

17. Reportof the Committee for International Repression of Terrorism, League of Nations Doc. C222 M.162 1937 V. app. II (1937).

18. Establishment of a Permanent International Criminal Court for the Punishment of Acts of Genocide, Appendix I to the Draft Convention on Genocide, 2 UN GAOR, UN Doc. A/362 (25 08 1947). Reproduced in Ferencz, op. cit. n. 5, Vol. 2 at pp. 131–140.Google Scholar

19. GA Res. 260, 3 UN GAOR (179th meeting), UN Doc. A/RES/260 III (1948).

20. 9 UN GAOR (Supp. No. 9) p. 9, UN Doc. A/2693 (1954).

21. Draft Statute for an International Criminal Court (Annex to the Report of the Committee on International Criminal Jurisdiction), 7 UN GAOR (Supp. No. 11) p. 23, UN Doc. A/2136 (1952).

22. Established pursuant to SC Res. 827, 48 UN SCOR (3217th meeting) 1, UN Doc. S/RES/827 (1993), Reprinted in 32 ILM (1993) p. 1203.

23. Established pursuant to SC Res. 955,49 UN SCOR (3453rd meeting), UN Doc. S/RES/955 (1994).

24. See, for example, the UNGA 48 Statements of the Representatives of the Netherlands, 27 October 1993 at p. 1; Italy, 29 October 1993 at p. 1; Ireland, 28 October 1993 at p. 2; the Czech Republic, at p. 3; Germany, 26 October 1993 at p. 2; and the UNGA 49 Statements of the Represen tatives of Germany, 27 October 1994 at pp. 2–3; the Czech Republic, 28 October 1994 at p. 2.

25. See, for example, the complaints of Serbia and Montenegro about the discriminatory nature of the creation of the War Crimes Tribunal for the Former Yugoslavia in the Letter dated 17 May 1993 from the Deputy Prime Minister and Minister for Foreign Affairs of the Federal Republic of Yugoslavia to the Secretary-General, UN Doc. S/25801 (21 May 1993).

26. Hereinafter referred to as the ‘Draft Statute’ or ‘the Original Draft Statute.’

27. Hereinafter referred to as the ‘Revised Draft Statute’.

28. Similar perhaps to the relationship between the International Atomic Energy Agency and the UN. The IAEA is not a specialised agency of the UN Organisation (although the Statute of the IAEA envisages close and regular interaction between the Agency and various UN organs — see Art. III in particular). Art. XVI(A) of the Agency's Statute authorised the IAEA Board of Governors to enter into an agreement establishing an appropriate relationship between the Agency and the UN Organisation.

29. In particular, see Draft Art. 4(1) on the status of the ‘International Criminal Tribunal’ as a ‘ … permanent institution open to States party to the Statute of the Tribunal’.

30. See, for example, the Statements of the Representatives of the Czech Republic, 28 October 1993 at p. 5; New Zealand, 29 October 1993 at p. 1; Hungary, 29 October 1993 at p. 4; Italy, supra n. 24 at p. 2; Japan, 28 October 1993 at p. 4; and Germany, 26 October 1993 at p. 4.

31. See, for example the Statement of the Representative of Romania, 29 October 1993 at p. 3.

32. See, for example, the Statement of the Representative of Norway on behalf of the five Nordic Countries — Denmark, Finland, Iceland, Norway and Sweden, 25 October 1993 at p. 1.

33. See, for example, the Statements of the Representatives of the United Kingdom of Great Britain and Northern Ireland, 28 October 1993 at p. 2; the Czech Republic, 28 October 1993 at p. 5; Ireland, 28 October 1993 at p. 2; the People's Republic of China, 27 October 1993 at p. 2; and Germany, 26 October 1993 at p. 4.

34. The Charter was amended in 1966 to increase the number of non-permanent members of the Security Council from 6 to 10, bringing the total Council membership from 11 to 15. The Charter was also twice amended to increase the number of members of the Economic and Social Council: first in 1965 from 18 to 27 members, and second in 1973 from 27 to 54 members. The Charter can be amended by two procedures both of which incorporate the same onerous constraints. Amendment under Art. 108 requires a two-thirds majority vote of the General Assembly followed by ratification by two-thirds of UN Member States including all permanent members of the Security Council. Art. 109(2) allows for a General Conference of UN Members to recommend any amendments to the Charter by a two-thirds vote of the Conference ratified by two-thirds of the Member States including all the permanent members of the Security Council. Thus, the permanent members of the Security Council hold a veto over any constitutional change to the Charter and it is hardly surprising that all three amendments to date have involved nothing more substantial than increases in the number of non-permanent members of different UN organs.

35. See the Statement of the Representative of Australia, 28 October 1993 at p. 2. Similar views were expressed, for example, in the Statements by the Representatives of Malaysia, 1 November 1993 at p. 2; Bahrain, 1 November 1993 at p. 2; and Slovenia, 29 October 1993 at p. 1.

36. By virtue of Art. 93 of the UN Charter.

37. Supra n. 34.

38. Statement of the Representative of the United Kingdom, 28 October 1993 at p. 2.

39. See ILC Report 1994, supra n. 3 at pp. 32–35.

40. It should be noted that the Working Group attached Appendix III to the Revised Draft Statute for the Court entitled ‘Outline of Possible Ways Whereby a Permanent International Criminal Court may Enter into Relationship with the United Nations’, ILC Report 1994, supra n. 3 at pp. 157–161.

41. See, for example, the Statements of the Representatives of Iran, UN Press Release GA/L/2380 at p. 6; Mali, UN Press Release GA/L/2381 at p. 3; and Chile, UN Press Release GA/L/2381 at p. 3.

42. See, for example, the Statements of the Representatives of Poland, 27 October 1994 at p. 2; and Canada, n. 11 at p. 2.

43. See, for example, the Statements of the Representatives of Slovenia, 27 October 1994 at p. 2; Italy, UN Press Release GA/L/2827, 25 October 1994 at 7; Israel, 27 October 1994 at 2; Germany, supra n. 11 at p. 3; and Bulgaria, UN Press Release GA/L/2830, 28 October 1994 at p. 3.

44. See, for example, the Statement of the Representative of Hungary, 27 October 1994 at p. 4.

45. See, for example, the Statements of the Representatives of Tunisia, UN Press Release GA/L/2830, 28 October 1994 at p. 7; Morocco, UN Press Release GA/L/2831, 28 October 1994 at p. 7; Bahrain, UN Press Release GA/L/2827, 25 October 1994 at p. 5; and Guinea, UN Press Release GA/L/2827, 25 October 1994 at p. 14.

46. See ILC Report 1994, supra n. 3 at pp. 35 and 71.

47. 1949 Conventions for the Protection of War Victims Concerning I — Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field; II — Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; III — Treatment of Prisoners of War; IV — Protection of Civilian Persons in Time of War, 75 UNTS 31, Cmd. 550.

48. See Protocol I Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflicts, 1977 UNJYB 95, 1125 UNTS 609, reprinted in 16 ILM (1977) p. 139.

49. International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, GA Res. 3068, 28 UN GAOR (Supp. 30), UN Doc A/RES/3068 (1973); reprinted in 13 ILM (1974) p. 50.

50. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 39 UN GAOR, UN Doc. A/RES/39/46, reprinted in 23 ILM (1984) p. 1027; 24 ILM (1985) p. 535.

51. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Montreal, 23 September, 1971 UKTS (1974) p. 10, Cmnd. 5524.

52. Vienna, 19 December 1988, Misc. 14 (1989), Cm. 804, reprinted in 28 ILM (1989) p. 493. This marks a departure from the heavily criticised division adopted in the 1993 draft. In 1993, the ILC proposed a distinction between treaty crimes and crimes under general international law. Crimes under general international law were not enumerated in this draft. Instead they were simply said to be crimes defined in norms accepted as fundamental by the world community. Such phrasing did not sit well with several delegations. In the case of treaty crimes the various relevant treaties are included in an appendix in the 1994 version. In 1993, the ILC attempted to define a special genus of treaties which gave rise to international criminal jurisdiction. Also dropped is the reference to offences that are crimes under national laws that themselves give effect to international treaty obligations.

53. See ILC Report 1994, supra n. 3 at p. 33.

54. Note that aggression is the only general crime included in the revised Draft Statute which does not also appear in the Statute of the Tribunal for the Former Yugoslavia, supra n. 23.

55. See, Art. 2 of the Statute for the War Crimes Tribunal for the Former Yugoslavia, supra n. 23.

56. ILC Report 1994, supra n. 3 at p. 68.

57. Art. 6 of the Genocide Convention reads: ‘Persons charged with Genocide … shall be tried by a competent tribunal in the state in the territory of which the act was committed …’.

58. See Franck, T., The Power of Legitimacy Among Nations (1990) at pp. 72–81;Google ScholarAlvarez, J., ‘The Quest for Legitimacy: An Examination of “The Power of Legitimacy Among Nations”‘, 24 NYUJ Int. L & Pol. (1991) p. 199.Google Scholar

59. See ILC Report 1994, supra n. 3 at p. 72.

60. According to Revised Draft Art. 23(2).

61. Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, London, 8 August 1945,8 UNTS 279, reprinted in 39 AJIL (1945) p. 257, Art. 6(c); Tribunal for the Former Yugoslavia, supra n. 23, Art. 5.

62. Revised Draft Statute Art. 20.

63. See Statement of the Representative of Israel, supra n. 43 at p. 6.

64. See Protocol I Additional to the Geneva Conventions of 1949, supra n. 48, Art. 85.

65. Though even here there is some doubt, the Court would have to establish whether a grave breach under the Protocol was ‘an exceptionally serious crime’. Indeed, the threshold could be higher for treaty crimes than it is for customary law crimes. A similar concern was raised by the Slovenian delegation which expressed unease at the inclusion of the laws of war in the list of both treaty crimes and general customary crimes: Statement of the Representative of Slovenia, supra n. 43 at p. 4.

66. These include, for example, the Hague Convention for the Pacific Settlement of International Disputes (1899), 26 Martens (2nd) 920, 187 CTS 410; the 1907 Hague Convention of the same name, 54 LNTS 435, 3 Martens (3rd) 360,205 CTS 233; Convention for the Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 215, Misc. 6 (1956); and, perhaps most unusually, the crime of piracy (excluded both as a treaty crime under the United Nations Convention on the Law of the Sea 1982, UN Doc. A/CONF. 62/122 Art. 101 and in customary law.) Additional Protocol II to the Geneva Conventions, 1125 UNTS 609, relating to the Protection of Victims of Non-International Armed Conflicts has also been excluded. This led to some criticism by delegates who considered that civil disputes should come within the jurisdiction of the Court (this is anticipated by the ILC in its list of crimes under customary law). See the Statement of the Hungarian Representative, 27 October, 1994 at p. 5.

67. See supra text at 4.2.1, particularly nn. 52–55.

68. See the Statement of the Representative of the United States, 25 October 1994 at p. 3. Indeed a number of delegates at the Sixth Committee argued that only the crimes listed in revised Draft Arts. 20(a) to (d) should be included in the statute and that all treaty crimes should be excluded. See, for example, Statement of the Representative of Romania, 29 October 1994 at p. 3.

69. Statement of the Representative of the Netherlands, 26 October 1994 at p. 11.

70. Under Art. 22(2) States may elect to opt-in for all the crimes listed in Art. 20. Three choices were presented to the Sixth Committee in 1993. Under Option A a weak ‘opting-in’ procedure was preferred. Here, states who ratified the Statute to the Court could accept the jurisdiction of the Court, by declaration, for one or more of the treaty crimes listed in Art. 22 regardless of whether the State in question had ratified the treaty. Option C was a stronger version of this ‘opting-in’ procedure. Here States party to the statute opt to accept the jurisdiction of the Court for all the crimes listed in Draft Art. 22. Finally Option B suggested an opting-out process. Under Option B, States Parties to the Statute are presumed to have accepted jurisdiction for all crimes defined by treaties to which they are parties. The ILC, taking its cue from the 1993 response, appears to have favoured Option A in the Revised Draft Article.

71. The mechanics of acceptance are laid out at Revised Draft Art. 22. The declaration, itself, can be hedged with limitations relating to both ratione temporis (Art. 22(2)) and rights to withdrawal (Art. 22(3)).

72. Revised Draft Art. 22(4).

73. ILC Report 1994, supra n. 3 at p. 83, para. 5.

74. See, for example, Statement of the Representative of Bahrain, November 1993 at p. 7.

75. See generally Revised Draft Art. 23.

76. See GA Res. 897, 11 UN GAOR, UN Doc. A/RES/897 (1954), entitled Draft Code of Offences Against the Peace and Security of Mankind which in effect postponed consideration of the 1954 Draft Code on the grounds that no agreement could be reached on a definition of aggression. A Special Committee was established whose recommendations led to the adoption of GA Res. 3314 (XXIX) of 14 December 1974 entitled Definition of Aggression. This resolution purported to define aggression but has been met with considerable criticism for its excessive vagueness or downright incoherence. See Franck, op. cit. n. 58, at p. 59.

77. Revised Draft Art. 23(1). In order for a complaint to reach the Court under this provision, there is no need for any State to have accepted the Court's jurisdiction for the crime nor for any State to initiate the complaint under Art. 25. However, States may bring a case to the Court's attention under Art. 23(2) providing the Security Council has already declared that another State has committed aggression.

78. Art. 99 of the UN Charter.

79. Idem Art. 12(1).

80. Supra nn. 24 and 25.

81. This is certainly the view taken by several delegations. See, for example, Statement of the Representative of Malaysia, UN Press Release, GA/L/2831, 28 October 1994 at p. 6.

82. See, for example, the Sri Lankan Statement, UN Press Release GA/L/2831, 28 October 1994 at p. 2.

83. The possibility of the politicisation of the Court was raised by the International Commission of Jurists in its Report entitled ‘Preliminary Observations of the International Commission of Jurists on the Revised Statute of the International Criminal Court', 6 July 1994. The Delegate from Guinea, however, made the important point that the bias of the Security Council may be a problem for the Charter system generally which the Court must recognise as part of that system. See the Statement of the Representative of Guinea, 25 October 1994.

84. See, for example, recent Security Council action in relation to Rwanda, Bosnia and Herzegovina, Somalia, and Haiti.

85. This can be viewed as a once-only veto power. See ILC Report 1994, supra n. 3 at p. 87.

86. See, forexample, the Statement of the Representative of Israel, supran. 43atp. 9, in which the Israeli delegate called for the wholesale deletion of Art. 23. A number of States remain satisfied with the extent of the Security Council involvement in the Court envisaged by the present draft. See the Statement of the Representative of Austria, supra n. 11.

87. See the Statement of the Representative of the United States, supra n. 68 at p. 3.

88. See, generally, ILC Report 1994, supra n. 3 at p. 38.

89. Exceptions are also made for the crime of aggression where mere referral of the matter by the Security Council is sufficient to initiate proceedings (see supra the text following n. 77).

90. There is no explicit provision in the draft Statute on personal jurisdiction. See the Statute of the Tribunal for the Former Yugoslavia, supra n. 23. See also the Statement of the Representative of Slovenia, supra n. 43 at p. 5.

91. The 1994 Revised Draft Statute omits from consideration States with a nationality link and States with a victim link. This has brought some criticism from various delegations. See, for example, the Statement of the Representative of Israel, supra n. 43 at p. 8. The 1994 Revised Draft Statute also makes reference to States having jurisdiction under a treaty. Under Revised Draft Art. 22(2) States requesting extradition under an international agreement must also accept the Court's jurisdiction if trial is to proceed (providing the request, itself, has been accepted by the custodial State). Custodial States which refuse to accept the Court's jurisdiction are under certain obligations to the Court under Revised Draft Arts. 53(b) and 54.

92. Note that the 1993 Draft Statute stated under the terms of Draft Art. 26 that the Court can acquire jurisdiction over offences not included in Draft Art. 22 providing that the States empowered to concede jurisdiction under Draft Art. 26(3) specially consent. The offences referred to here fall into two categories. The second category includes those offences which are crimes under national laws that themselves give effect to international treaty obligations. The rider here is that the offences must be exceptionally serious under the terms of the treaty. In these cases again the State on whose territory the suspect is present can agree to cede jurisdiction to the Court providing that that State possesses jurisdiction under the terms of the treaty.

93. As well as any State qualifying under Art. 21(2).

94. ILC Report 1994 at p. 80. See also revised Draft Art. 83(5).

95. See the Statement of the Representative of Slovenia, supra n. 43 at p. 5.

96. See the Statement of the Representative of Japan, 26 October 1994 at p. 2. Surprisingly, the Chinese, too, expressed grave doubts about the role of the Council in the judicial arena. See also the Statements of the Representatives of China, 27 October 1994 at p. 3, and the Netherlands, supra n. 69 at p. 5.

97. See, for example, the Statement of the Representative of Spain, 27 October 1994 (arguing that jurisdiction in relation to genocide must be consensual). See also the Chinese Statement, supra n. 11.

98. See, for example, the Statements of the Representatives of Greece, 25 October 1994 (arguing that limitations on jurisdiction in cases involving peremptory norms or norms of jus cogens is impermissible); Italy, 25 October 1994 at p. 3 (arguing that an opting out system be adopted); Bulgaria, 27 October 1994 at p. 6 (arguing that all States Parties to the Statute should be automatically assumed to have accepted jurisdiction). See also the Statements of the Representatives of the Netherlands, supra n. 69 at p. 3; Ireland, UN Press Release GA/L/2827, 25 October 1994.

99. See the Statement of the Representative of the United States, supra n. 68.

100. See the Statement of the Representative of Bahrain, 25 October 1994 at p. 6.

101. Draft Art. 19.

102. See the Statement of the Representative of Australia, 28 October 1993 at p. 2.

103. Art. 15 of the Statute for the War Crimes Tribunal for the former Yugoslavia also provided that judges draft their own rules of procedure and evidence: supra n. 22.

104. See the Statements of the Representatives of New Zealand, 29 October 1993 at p. 3; and Nigeria, 1 November 1993 at p. 7. Art. 14(1) of the ICCPR (999 UNTS 171, UKTS (1977) p. 6) states that:

‘All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing of a competent, independent and impartial tribunal established by law.’

105. See the Statement of the Representative of Italy, supra n. 24 at p. 4. The Representative of Norway, on behalf of the five Nordic Countries—Denmark, Finland, Iceland, Norway and Sweden, stated their opposition without a reason other than that trials in absentia would give rise ‘to political as well as legal difficulties that ought to be avoided’. See the Statement of the Representative of Norway, 25 October 1993 at p. 3.

106. See the Statements of the Representatives of the Netherlands, supra n. 24 at p. 7; and Slovenia, supra n. 35 at p. 5.

107. See the Statement of the Representative of Malaysia, supra n. 35 at p. 5.

108. See, for example, the Statements of the Representatives of Bahrain, supra n. 35 at p. 11; and Singapore, 29 October 1993 at p. 4.

109. Art. 12 of the Statute of the Tribunal for the Former Yugoslavia, supra n. 22. See also Art. 11 of the Statute for the Tribunal for Rwanda, supra n. 23.

110. See, for example, the Statements of the Representatives of Mali, UN Press Release GA/L/2831, 28 October 1994 at p. 3; Morocco, UN Press Release, GA/L/2831, 28 October 1994 at 7; and Brazil, UN Press Release, GA/L/2827, 28 October 1994 at p. 3.

111. But see the Statement of the Representative of the United Kingdom, supra n. 10 at p. 5.

112. For a more detailed analysis of the substantive provisions of the Code see McCormack and Simpson, loc. cit. n. 7.

113. The US Delegation is particularly lukewarm towards the code stating ‘ … a host of additional concerns would be raised if the Draft Code … were added to the jurisdiction of the court. We trust that States will not insist on pushing forward with the Code in the absence of consensus’ (Statement of the Representative of the United States, supra n. 68 at p. 3). See also the Statement of the Representative of Guatemala, UN Press Release GA/L/2828, 26 October 1994 at p. 4.

114. See, for example, the Statement of the Representative of China, 1994 at p. 4: ‘ … the Chinese delegation finds this year's draft Statute a considerable improvement over the last one; on the whole, it is more balanced and more realistic and could serve as the basic document for consideration by the Sixth Committee’.

115. Statement of the United States Representative, supra n. 68 at p. 3.

116. The 1994 ILC Report recommends ‘to the General Assembly that it convene an international conference of plenipotentiaries to study the draft statute and to conclude a convention on the establishment of an international criminal court’. Supra n. 3 at para. 90.

117. Another alternative proposed by the European Union was that the General Assembly itself convene a conference.

118. See the Statements of the Representatives of Slovenia, supra n. 43 at p. 6, and Norway, 26 October 1994 at p. 4.

119. See, for example, Statement of the Representative of the United Kingdom, supra n. 10 at p. 5. The Japanese preferred that the Statute continue to move through the Sixth Committee describing the conference of plenipotentiaries as ‘premature’—Statement of the Representative of Japan, supra n. 96 at p. 6—while the Netherlands delegate argued for the convening of a conference ‘ … as soon as sufficient common ground exists … ’: Statement of the Representative of the Netherlands, supra n. 69 at p. 8.

120. See GA Res. 49/53, 49 UN GAOR (84 meeting), UN Doc. A/RES/49/53,1994. See also the Statements of the Representatives of Canada, supra n. 11 at p. 5; Austria, supra n. 11 at p. 4. See also the Statements of the Representatives of Australia, 25 October 1994 at p. 5 (arguing for a preparatory conference in 1995 leading to a diplomatic conference in 1996); Russia, UN Press Release GA/L/2830, 28 October 1994 at p. 9.

121. GA Res. 49/739, 49 UN GAOR (84th meeting), UN Doc. A/RES/49/739 (9 December 1994).

122. ‘Recommendations of the bureau concerning the work of the ad hoc committee during the period 14–25 August 1995’, ad hoc committee on the establishment of an International Criminal Court, informal paper No. 5/Rev. 2, April 1995. The key issues identified by the bureau very much mirror those issues discussed in this paper.

123. In Res. 49/739, the Assembly, inter alia:

‘Decides to include in the provisional agenda of its fiftieth session an item entitled “Establishment of an international criminal court”, in order to study the report of the ad hoc committee and the written comments submitted by States and to decide on the convening of an international conference of plenipotentiaries to conclude a convention on the establishment of an international criminal court, including on the timing and duration of the conference.’

124. See UN Doc. A/CN. 4/458 and Add. 1–8.