New York, 21 October 1998

53rd Session of the General Assembly

Sixth Committee

Agenda Item 153: "Establishment of an International Criminal Court"

Statement By the Permanent Representative of Italy

H.E. Ambassador Francesco Paolo Fulci

Mr. Chairman,

First of all, allow me to convey to you my warmest congratulations on your election as Chairman of the Sixth Committee. I am sure that under your excellent leadership the Sixth Committee will achieve its important tasks. Your legal skills and diplomatic experience are well-known, and represent a true guarantee for the success of our work.

Mr. Chairman,

The distinguished of Austria, speaking on behalf of the European Union, has just expressed the views of the Union on the item entitled: "Establishment of an International Criminal Court." Italy fully shares these views. I would simply like to add some complementary remarks, focused on the outcome of the Rome Diplomatic Conference which adopted the ICC Statute, and on the work that remains to be done to make the Court fully operational.

Needless to say, Italy is very pleased with the results of the Rome

Conference. The adoption and opening for signatures of the Statute of the International Criminal Court represents a milestone in the development of international criminal law and probably - as Italian Foreign Minister Lamberto Dini recently stated before the General Assembly - "the greatest institutional advancement since the San Francisco Charter."

The Rome Conference had two purposes: to create an institution that would deter the commission of crimes which offend the very conscience of mankind, and to end impunity too often granted to the perpetrators of such crimes. These noble and ambitious goals had been on the agenda of the UN for more than fifty years, but had become particularly urgent when the specter of unspeakable atrocities returned (in the former Yugoslavia, Cambodia, Rwanda and elsewhere): specters that everyone hoped had disappeared after the tragic experience of World War Two.

A first response to these humanitarian emergencies was the creation, by the UN Security Council, of the two ad hoc Tribunals for the former Yugoslavia and Rwanda. However, this positive development did not eliminate the need to establish a permanent International Criminal Court to adjudicate, on the basis of a universal treaty, acts of genocide, war crimes and crimes against humanity, wherever and by whomever they are committed. Accordingly, the ICC project received increasing support from the international community. The preparatory works for the Statute showed that its completion not only was possible; it was strongly demanded by a large majority of States and by world public opinion. The success of the Rome Conference crowned all these efforts. Now we can proudly say that there is a permanent body of international criminal justice to which the perpetrators of the most heinous crimes known to humanity must respond.

Mr. Chairman,

The adoption of the Statute of the ICC would not have been possible without the cooperation of all delegations participating in the Rome Conference. We would like to pay a special tribute to the President of the Conference, Professor Giovanni Conso, to the Chairman of the Drafting Committee, Professor Cherif Bassiouni of Egypt, for their tireless and highly professional work in steering the negotiations. Our thanks go also to the UN Secretariat, whose admirable job allowed the Conference to proceed speedily and efficiently.

Moreover, we would like to praise the contribution to the process by nongovernmental organizations and other representatives of civil society. The interest shown by these organizations in the preparatory meetings and in the Conference is unprecedented in the history of multilateral negotiations. More than two-hundred NGO delegations were present in Rome. This testifies not just to international society's demand for justice, but also to the people' wish to be the protagonists of a new ear of civil progress.

Mr. Chairman,

Inevitably, the text of the Statute reflects a number of compromise solutions to crucial aspects of the negotiations. Together with the other "Like-minded" countries, Italy constantly promoted legal solutions that would make the future Court a strong, independent institution based on the consensus of the largest possible number of States. Overall, and given the intrinsic difficulties of the subject-matter of the Conference, we consider the text adopted in Rome satisfactory also from a substantive point of view.

First, the Court will be competent to adjudicate the so-called "core-crimes" under general international law, including aggression, although in this latter respect it will be able to exercise jurisdiction only at a future time, when the definition of crime and the other conditions for the Court's intervention are approved by the Assembly of the States Parties. Moreover, the definition of genocide, war crimes and crimes against humanity is sufficiently wide and comprehensive, containing various advanced solutions, and reflecting in substance the most recent development of international law and practice.

Secondly, the complementarity of the Court with respect to national jurisdiction is correctly establish on the basis of criteria that allow the Court to intervene when national systems of criminal justice are unavailable or unwilling

to genuinely prosecute and punish the persons responsible for the crimes covered by the Statute.

Thirdly, not only States are allowed to make recourse to the Court. The Prosecutor may also initiate investigations proprio motu, on the basis of information received from any source, including non-governmental organizations. This very important element of the Statute underlines the Court's character as a body acting in the interests of the entire international community. The UN Security Council is likewise authorized to utilize the Court. This will obviate to the need for the Council to establish other ad hoc Tribunals.

Fourthly, the Court is provided with "automatic jurisdiction" over the crimes covered by the Statute: namely, a jurisdiction that is not made conditional to the specific acceptance of the States Parties concerned. Such jurisdiction is linked to the circumstance that the territorial State or the State of nationality of the accused are Parties to the Statute, or have accepted the competence of the Court. We agreed with this solution in a spirit of compromise, although we would have preferred wider criteria, including at least reference, as another alternative, to the custodial State. We also recognize that Article 124 of the Statute, which allows States Parties to declare that they do not accept the Court's jurisdiction over war crimes for seven years, imposes a substantial limit on the effective functioning of the Court. However, this latter provision is clearly characterized by the Statute as "provisional". We are confident that the Review Conference will delete it, and allow the Court to exercise its juris

diction over war crimes without this restriction. in addition, the relationships with the Security Council are governed by a provision (Article 16) that take into account the different responsibilities of the two bodies.

In short, while concessions from all sides were necessary to achieve the successful conclusion of the Conference, the Court remains a solid institution, provided with the necessary effectiveness and independence essential for a judicial organ called to adjudicate the most serious crimes of concern to the international community. These characteristics must be preserved.

Mr. Chairman,

The presence of the Secretary-General of the United Nations at the solemn ceremony held in Rome, at the Campidoglio, on 18 July 1998 lent special significance to the beginning of the process of signature and ratification of the Statute. So far, 58 States have signed while it was open for signature at the Italian Ministry of Foreign Affairs. This is already - only three months after the Statute's adoption - an excellent result. We hope, however, that the number of signatures will further increase during the next few weeks. It would be another signal of the widespread support enjoyed by the Statute within the international community, and represent an excellent basis for a quick and successful ratification process. In this respect, I am pleased to inform that, on 8 October, Italy started the parliamentary procedures for the ratification of the Statute.

While we are aware of the difficulties encountered by certain States, we are convinced that a rapid entry into force the Statute will be beneficial to the entire international community. At the same time, the widest support of the members of this community is essential for the effective performance of the Court's functions.

In this same perspective, the preparatory Commission established by the Rome Conference should be convened as soon as possible in New York, to elaborate a number of instruments to integrate or accompany the Statute, which are extremely important for making the Court operational. I refer, in particular, to the rules of procedure and evidence of the Court, to the so-called "elements of crimes" and to the definition of the crime of aggression. We envisage, as a minimum, eight weeks of meetings of the Preparatory Commission in 1999, and if necessary three additional weeks before June 2000. The Preparatory Commission should be provided with the resources and services required to enable it to perform its functions efficiently and expeditiously. Non-governmental organizations should be allowed to participate in the work of the Preparatory Commission under the same conditions as their participation in the Rome Diplomatic Conference.

Mr. Chairman,

In conclusion, I would like to reiterate the fir commitment of Italy to the process of creation and prompt functioning of the International Criminal Court. My country has demonstrated this commitment with concrete actions aimed at building a lasting edifice against impunity, and guaranteeing true progress in the system of international criminal justice. The foundations were laid in Rome, the cradle of law, thanks to the efforts of a great number of member States. We must continue to work to make the Court become a living reality: the sooner, the better.

Thank you, Mr. Chairman