October 21, 1997

Statement by Mr. DUAN JIELONG

Deputy Representative of the Chinese Delegation to the Sixth Committee of the Fifty-Second UNGA

Mr. Chairman,

At the outset, I would like to take this opportunity to thank Mr. Boss, Chairman of the Preparatory Committee on the establishment of an International Criminal Court, under whose excellent guidance, new progress has been made in the work of the Committee. In addition, I would also like to thank the Chairman of the working groups of the Preparatory Committee and the secretariat whose efficiency has greatly contributed to the work of the Preparatory Committee.

Mr. Chairman,

The establishment of an international criminal court is an undertaking of the United Nations with significant implications of the theory and practice of international law. It is an undertaking motivated by good intention and based on sound principles and therefore should be acknowledged. As can be expected, there still remains a-lot of work to be done by the Preparatory Committee before the good intention can be understood properly and translated into specific formulations that will reflect the common desire of all states. All delegations including mine, have actively participated in the work of the Preparatory Committee which has now entered the stage of deliberation on substantive issues and drafting. As a result of an extensive exchange of views, the opinions and major concerns of all parties have become clear now, which will greatly contribute to the work of the Preparatory Committee at the next stage.

The Chinese delegation has also taken note of the fact that the drafting exercise of the Preparatory Committee is progressing at a slow pace. In spite of the progress that has been made, major difference still exists among states on the questions that were discussed such as the definition of crimes, the general principles of criminal law, the principle of complimentarily, the trigger mechanism and the procedure. It is, therefore, difficult to produce a consolidated text that is widely acceptable. With only two sessions to go before a diplomatic conference is to be convened, should the Preparatory Committee fail its work as scheduled and submit to the diplomatic conference a text widely acceptable to all states, the deliberation that was carried out in the Preparatory Committee will have to be continued at the diplomatic conference. We can hardly imagine the possibility of completing the formulation of a convention in the limited time available to the diplomatic conference. Therefore, it is the hope of t

he Chinese delegation that in the limited time available to the Preparatory Committee from now on, the drafting exercise will be conducted with better efficiency within the mandate given to the Preparatory Committee by the GA, in accordance with the purposes and principles of the UN Charter and on the basis of the principles of complimentarily and universality. It is also our hope that all states will, in the spirit of cooperation, realism, make the greatest-efforts possible so as to conclude the work of the Preparatory Committee.

Mr. Chairman,

Some important issues concerning the Statute of the court were discussed and drafts were tabled in this regard during the two sessions of the Preparatory Committee held last March and August. The Chinese delegation would like to make the following comments on the issues discussed during those sessions.

The definition of crimes is the most important issue in determining whether a court enjoys criminal jurisdiction. It is the opinion of this delegation that the definition of crimes should be defined on the basis and within the scope of concepts that have been accepted by the majority of states and thereby integrated into customary international law. Concepts that have not yet become a part of customary international law should have no place in the Statute. With regard to core crimes, we are in favor of placing genocide, war crime and crime against humanity under the jurisdiction of the court. We have taken note of the fact that as of now the international community has not been able to define crime of aggression in a legal term. If a proper term as such can be established, we will- have no difficulty to having it covered by the Statute. As to whether other treaty crimes should be covered by the Statute, difference still exists among states. The Chinese delegation believes that in order to ensure the e

ffectiveness and authority of the international criminal court, the range of crimes that fall under its jurisdiction should not be too wide. Still less should it replace the responsibility that sovereign states undertake under relevant international treaties and the functioning of the judicial procedures thereunder. Therefore, an advisable approach to this issue would be to place under the jurisdiction of the international criminal court- only those crimes that- constitute a common concern of the international community and are universally considered to be the most serious.

The principle of complimentarily and the trigger mechanism are among the fundamental core issues in the Statute that involve inherent jurisdiction and the role of the Security Council. It has to be pointed out in particular that the inherent jurisdiction of the court, when extended to cover all core crimes. will accord precedence to the international criminal court over national courts in the handling of those cases, thereby enabling the former to supersede the latter. This is clearly at variance with the principle of complimentarily and will adversely affect the cooperation between states and the international criminal court as well as the effective functioning of the court. As to the role of the Security Council, it is our opinion that the draft provisions prepared by the International Law Commission is quite balanced. Meanwhile, we are of the view that the importance of maintaining the independence of the court should be taken into full account. Therefore, we shall give positive consideration to any

proposal that would ensure the independence of the court on the one hand and reasonably reflect the special role of the Security Council in the maintenance of international peace and security on the other. With regard to accepting cases under Article 35 of the draft, we believe that significant results were achieved during the last session of the Preparatory Committee and the current text reflects, in the rather satisfactory manner, the principle of complimentary.

The general principles of criminal law and the procedures touch upon the fair administration of justice and the protection of the rights of the defendant. We have taken note of the fact that they involve a large number of specific legal questions of a technical nature. As legal tradition and judicial practice vary from country to country, it is only natural and understandable that there are commonalities and differences in their procedures for criminal proceedings. However, if the deliberation on the matter is often bogged down in the theory of criminal law and some minute details as result, the progress of our work will inevitably be slowed down. It is the view of the Chinese delegation that when dealing with those- issues states should- seek common ground s and put away minor differences by refraining from overemphasizing relevant provisions of national laws concerning certain specific issues of a technical nature and trying to find solutions acceptable to all countries in the spirit of cooperation and

compromise without prejudice to principles.

Thank you, Mr. Chairman.