Permanent Mission of Israel

to the United Nations

Statement

By Ms. Esther Efrat-Smilg

Representative

Sixth Committee

54th Session United Nations General Assembly

Agenda Item: 158

Establishment of an International Criminal Court

22 October 1999

Mr. Chairman,

Given the history of the Jewish people in the last century, prominent Jewish

and Israeli jurists and statesmen were among the first to advocate the establishment of an International Criminal Court. Representatives of the State of Israel have actively participated in all the United Nations deliberations on the Criminal Court since the early 1950's.

We cannot overestimate the determination of the international community today not to stand by silently when crimes of genocide, war crimes and crimes against humanity are committed. Fully one third of the Jewish people was exterminated in the Holocaust during the Second World War, only because such international determination did not exist at that time.

We firmly believe that the heinous crimes referred to in the Rome Statute are

a menace to the international community as a whole, and thus should be dealt with by the international community as a whole.

Mr. Chairman,

It is only because of the utmost importance that we attach to the establishment

of the Court that we have expressed some concerns, and were among those States that were unable to sign it until now. One item of concern appears in Article 8(2)(b)(viii). One may ask, Does the crime of transfer, as set forth in this article, really rank among the most heinous and serious war crimes, especially as compared to other, genuinely heinous ones listed in Article 8? We have serious doubts.

Clearly the Statute must not be given to abuse for political ends. It must

strictly serve the purposes for which the Court is being set up. This Court is

too precious. The international community should not allow it to be blemished

by any political agendas.

Several delegations have referred to the elements of the war crime of transfer in Article 8(2)(b)(viii). In this respect, my delegation wishes to reiterate our

view that some of the key elements of this war crime should be based on the

following:

First, the particular crime we are dealing with here is described in the chapeau

of Article 8(2)b as one among "serious violations of the laws and customs

applicable in international armed conflict within the established framework of

international law". The basis is therefore the established framework of

international law, and not the political wishes of specific states.

Second, the established framework of international law, upon which this

crime of transfer is based, which reflects the customary international law on

this subject, is Article 49 of the Fourth Geneva Convention. Hence, our view

that a basic element of the crime be that the transfer must be in violation of

that provision.

Third, the addition at Rome of the phrase "directly or indirectly" has no basis

in the established framework of international law. It can, in the view of my

delegation, only be explained as being politically motivated, and therefore

extraneous to the alms of the Rome Statute.

Fourth, the words "directly or indirectly" cannot alter the nature of the

offence in the context of the chapeau's requirement that it be "within the

established framework of international law". This addition can also not

change the meaning of the word "transfer", which, in the context,

involves the element of involuntariness. It cannot render the term "transfer" as

anything other than its plain sense. The notion of a voluntary transfer in such

a context is a contradiction in terms.

Mr. Chairman,

Having signed the Final Act of the Rome Conference, Israel joined the other

signatory states of the Final Act in the important deliberations of the

Preparatory Commission. We will continue to actively participate in them and

work constructively with other delegations to try to reach results, that could

reflect agreement by all.

At this point, Mr. Chairman, my delegation would like to commend Ambassador Phillipe Kirsch, along with the members of the Bureau, the coordinators and the Secretariat, for their dedicated work.

Thank you Mr. Chairman.