Item 153: Establishment of an International Criminal Court

New York, 21 October 1998

Mr. President,

[...] The remaining tasks of making the Court reality, as set out in the resolution in

the Final Act of the Conference, were mandated to the Preparatory Commission for

the International Criminal Court. Inter alia the decision of the Conference directs the Commission to take all possible measures to ensure the coming into operation of the Court without undue delay and to make the necessary arrangements for the commencement of the functions.

We believe, in this connection, that the Preparatory Commission should commence its work at the earliest possible date. Indeed an organisational session could be convened

As early as February/March of 1999. What is more important, however, in our view, is that a definitive calendar of meeting specifying the dates for 1999 be agreed upon and at least an indicative programme be provided for the remainder of the period, up to 30 June 2000, the date by which the Commission is required to finalise the draft texts of the Rules of Procedure and Evidence and of the Elements of Crimes.

Mr. President,

The elaboration of the Court' s rules of procedure and evidence, as well as the elements of crime will no doubt be the most demanding task to be undertaken by the Commission. This is not only because the outcome will have a direct bearing on the efficacy of the Court as a judicial body but also because the drafting thereof, will require the input of lawyers with a very sophisticated and broadly based experience involving such complex matters. Bearing in mind the fundamental nature of this daunting task, it is of critical importance to the future of the Court that the Rules of Procedure and Evidence and Elements of the Crimes be drafted by the Preparatory Commission in a manner which will take into account the peculiarities of the statute, including the political dimensions and complex nature of the crimes within the jurisdiction of the Court.

The experiences of the two Ad hoc Tribunal, for the former Yugoslavia and Rwanda, which have been critical to the orderly development of jurisprudence in an uncharted area of international law will be very relevant in this regard. Indeed, Judge Gabrielle Kirk McDonald, the President of the Tribunal for the former Yugoslavia shared some insights on these issues on 17 August 1997, when she addressed the Preparatory Committee on the need to ensure that the statute of the Court is sufficiently precise so as to minimise challenges to the rules on grounds of being beyond the authority given by the statute, while at the same time maintaining the flexibility necessary to address unforeseen issues or allow changes to improve the administration of justice. We PROPOSE THAT THE GENERAL ASSEMBLY IN ITS RESOLUTION SHOULD SPECIFICALLY INVITE THE TWO TRIBUNALS TO SHARE THEIR CREATIVITY AND EXPERIENCE PARTICURARLY ON THE PROCEDURAL NEEDS OF THIS UNIQUE INSTITUTION.

Equally important to the success of the Preparatory Commission is the full participation by all its members in its deliberations. We firmly believe that it is in the interest of the long term legitimacy of the Court itself that that governments not only support the work of the Preparatory Commission but that the expectations of different legal system should be recognised and accommodated from the outset of the work of the Court, particularly in evidentiary and procedural rules. Mr. Chairman, it is with this in mind that it is important to continue to facilitate the participation of those developing countries that are unable. For financial reason, to send their experts. We therefore call for the re-establishment of the Voluntary Trust Fund for travel assistance.

Mr. Chairman,

THE ROLE AND CONTRIBUTION OF NGOs IN THE PREPARATORY COMMITTEE AND DURING THE DIPLOMATIC CONFERENXE CANNOT GO UNNOTICED. THERE IS PROBABLY NO OTHER TIME IN THE HISTORY OF INTERNATIONAL TREATY MAKING GOVERNMENTS AND REPRESENTATIVES OF NGOs WORKED SO CLOSELY TPGETHER TO ACHIEVE A COMMON RESULT. THEY HAVE SHERED WITH GOVERNMENT DELEGATIONS, PARTICURARLY SMALL ONES, THEIR POSITION PAPERS AND PROVIDED INVALUABLE SUPPORT TO THE ENTIRE EFFORT. THERE IS A TREMENDOUS AMOUNT OF WORK REMAINING TO BE DONE AND IT IS OUR HOPE THAT THIS FRUITFUL AND MUTUAL COOPERATION WILL CONTINUE FOR THE ENTIRE DURATION OF THE PREPARATORY PROCESS. NEEDLESS TO SAY, WE MORE THAT WELCOME THEIR PARTICIPATION IN THE NEXT PHASE THAT WE ARE ABOUT TO EMBARK ON.

I thank you.