CIVIL AND POLITICAL RIGHTS, INCLUDING QUESTIONS OF: DISAPPEARANCES AND SUMMARY EXECUTIONS

Extrajudicial, summary or arbitrary executions

Report of the Special Rapporteur, Ms. Asma Jahangir

(Pakistan), submitted pursuant to Commission on Human

Rights resolution 1998/68 [Ref.: E/CN.4/1999/39]

1.

29. The Special Rapporteur is aware of the frequent and at times casual use of the term "genocide" in everyday political discourse, which risks eroding some of its weight as a legal term. This underscores the importance of using the term "genocide" with precision and in accordance with the criteria set out in article II of the Convention on the Prevention and Punishment of the Crime of Genocide. However, she notes with concern the reluctance on the part of the international community to use the term "genocide", even when the situations referred to constitute grave and systematic violations of the right to life which seem to match these criteria. The Special Rapporteur welcomes the decision to include the crime of genocide in the jurisdiction of the International Criminal Court, the Statute of which was adopted in Rome on 17 July 1998.

69. The Special Rapporteur welcomes the fact that after several years of preparation, the Statute for a Permanent Internationnal Criminal Court was finally adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome on 17 July 1998. The Court, which is to be established once the Statute is ratified by 60 States, will have jurisdiction over serious crimes of international concern, including genocide, war crimes, terrorism and crimes against humanity. Under the principle of complementarity, the Court is to exercise its jurisdiction only in cases when national justice systems are unable or unwilling to do so. The Special Rapporteur is hopeful that the International Criminal Court, once it is established, will assume a key role in curbing the current trend of impunity by bringing perpetrators of gross human rights violations to justice.

70. In this context, the Special Rapporteur notes the

discussion in the United Kingdom in late 1998 to allow

extradition proceedings against former Chilean President Augusto Pinochet. It must be recognized that no one is above the law insofar as human lives are concerned. Strict concepts of impunity are now under challenge. However, the Special Rapporteur wishes to point out that measures taken to combat impunity by bringing perpetrators to justice cannot be selective, in order to have a meaningful impact on the responsibility of the State and its rulers to respect human life. Impunity for rulers suspected of killings is an offence to society as a whole. However, the objective of bringing officials and rulers within the ambit of ordinary law in this regard is not simply to give satisfaction to the family of the victims or to seek revenge for past atrocities, but to promote peace and respect for the law. It will be a major contribution towards ensuring a more responsible leadership.

92. The Special Rapporteur encourages the States parties to the Convention on the Prevention and Punishment of the Crime of Genocide to consider ways of establishing a monitoring mechanism to supervise the implementation of the Convention. She urges the international community and all concerned States to cooperate fully with the International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, particularly by arresting and handing over suspects, so as to bring to justice as soon as possible those accused of the crime of genocide. She also welcomes the adoption of the Statute of the International Criminal Court, and notes with appreciation that the Court will have jurisdiction over the crime of genocide. She is hopeful that the Court will be active in combating impunity for persons responsible for acts of genocide, and thereby contribute to the eradication of this horrendous crime.

(2)

CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTION OF: INDEPENDENCE OF THE JUDICIARY, ADMINISTRATION OF JUSTICE, IMPUNITY

Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy (Malaysia) [Ref.: E/CN.4/1999/60]

IV. THEORETICAL ISSUES

A. Establishment of an International Criminal Court

38. The Special Rapporteur is pleased to note the important strides the international community has taken towards the establishment of the International Criminal Court. The Rome Statute of the International Criminal Court, adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries, contains a number of provisions that safeguard the independence of the Prosecutor, but in a manner that promises judicial oversight of prosecutorial discretion. In particular, the Court may exercise its jurisdiction if, pursuant to article 13 of the Statute, either the United Nations Security Council or a State Party to the Statute refers a situation to the Prosecutor. Alternatively, pursuant to article 15.1, "the Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court". Paragraphs 2 to 6 of article 15 set out the powers and responsibilities of the Prosecutor in this connection, including the obligation of the Prosecutor to submit

the grounds upon which he or she believes "there is a reasonable basis to proceed with an investigation" to the Pre-Trial Chamber of the Court. Article 15.6 provides "If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence." The Special Rapporteur believes these, along with certain other provisions, sketch out an adequate measure of independence for the Prosecutor.

39. However, article 16, entitled "Deferral of investigation or prosecution", gives considerable cause for concern. Article 16 stipulates: "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions." Article 16 leaves the Security Council a large role by authorizing it to delay investigations or prosecutions for a year or more. The political role of the Security Council in triggering the Court's investigation and prosecution powers, may, depending on how this role is played, substantially undermine the judicial independence of the Court by precluding judicial review of situations politically sensitive to one or other of the permanent members of the Council, who, of course, wield the power of veto.

40. Thus, the Special Rapporteur is pleased that the Rome Statute has been adopted, but retains serious misgivings about the potential for political interference from Security Council members in the functions of the Prosecutor. It can only be hoped that the Security Council will exercise its authority wisely and in the interests of the international community as a whole.