In Cooperation with the United Nations

A Satellite Conference to the 1993 World Human Rights Conference

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Siracusa, December 2-5, 1992

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Co-Sponsors

Association Internationale de Droit Penal (AIDP)

DePaul University International Human Rights Law Institute (DPU-IHRLI)

International Bar Association (IBA)

International Centre for the Reform of Criminal Law (ICRCL)

International Commission of Jurists (ICJ)

International Scientific and Professional Advisory Council of the United Nations Crime Prevention and Criminal Justice Program (ISPAC)

Parliamentarians for Global Action (PGA)

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Under the Auspices of the Italian Minister of Justice

CONCLUSIONS AND RECOMMENDATIONS

1. The Time is Ripe

Nearly half a century after the establishment and work of the first International Criminal Tribunal, specialists in international criminal justice, government officials, and parliamentarians, coming from all continents, assembled at ISISC, at Siracusa, Italy (December 2-5, 1992). The purpose of the meeting was to take stock of developments in international criminal justice, to assess its failures, and to note the persistent, but slow progress toward the establishment of an international criminal justice system, noting particularly the recent progress of the International Law Commission toward formulating the statute for an international criminal court and drafting an international criminal code (of crimes against the peace and security of mankind). However, it had become all too obvious that advances by the academic community had far outstripped the drafting effort of intergovernmental bodies, and the capacity of these bodies to benefit from scholarly progress.

The point had been reached at which academic advances should and could, be put to profitable use at the intergovernmental level. Once regarded as esoteric academic exercises, these advances are now at the diposition of the world community which has become keenly aware of massive and widespread crimes against the peace and security of mankind, on nearly all continents. This international criminality increasingly challenges the international community to set up an international system of criminal justice so as to prevent further commission of international crimes and to bring to justice those responsible. Not since 1945 has there been such a massive, world-wide public call for international criminal justice. Not since then has there been such an opportunity for the world community to institutionalize an effective system of international criminal justice.

2. Past Failures and Future Obstacles

Several participants emphasized the causes of past failures and, thus, the potential obstacles in the path toward achieving universal criminal justice, and all participants fully shared the concerns of these colleagues. Among these obstacles were:

(a) Continuing conflict among national interests;

(b) The changes inherent in the establishment of yet another international bureaucracy with possibly minimum benefits to the world community;

(c) The reluctance of states to yield any part of their sovereignty;

(d) Chauvinism in regarding one's own national laws as superior;

(e) The difficulty in agreeing on the subject-matter jurisdiction of an international tribunal;

(f) Concerns about the selection of an international judiciary;

(g) The conflict of an international system of criminal justice with national jurisdictions;

(h) The remoteness of an international criminal justice system from the peoples of the world;

(i) The difficulty of agreeing on a general part;

(j) The difficulty of agreeing on procedural rules;

(k) The role which individual states should play in the international criminal justice process;

(l) The problem of invoking (initiating) the international criminal justice process;

(m) The ost to the international community;

(n) The lack of enforcement power of an international criminal tribunal.

3. Current Issues

Participants recognized that, in the minds of some policy makers, the legacy of past obstacles still lingers. But they noted that some of these problems had been resolved, some were non-existent to begin with and others could be oversome if the political will to impose international criminal justice could be mustered. Thus, by way of examples, the cost issue is insignificant if the administrative apparatus of the international court of justice could be extended to service the international court of criminal justice. As to differences in legal systems, the Nuremburg tribunal had little difficulty in accomodating principles of common law and civil law. As regards the selection of a judiciary, in the case of the ICJ, such problems had long been overcome, (but the system could be improved). Many of the procedural issues had long been proposed for resolution by the Draft Statute -- International Criminal Tribunal, and other documents.

It was agreed that the current obstacles were of a rather different sort, legal and technical issues not being unsurmountable. Foremost among current problems is that of the political will.

4. The Political Will

Both parliamentarians and academicians were encouraged by the new political support which an international criminal court has attracted from many governments over the past few years, and the recent call in the United Nations for stronger action toward its establishment. Notwithstanding the legal complexities and the difficulties ahead, the question of a court was essentially political. Progress depends upon the political will of governments.

The key to success will lie in intensifying the dialogue amongst academicians, parliamentarians, government officials and diplomats, relying heavily on the support of the mass media. Politicians will respond to public awarenew and pressure, calling upon their governments to act.

In the past, academicians had talked to academicians. This conference afforded one of the first opportunities for academicians to share their views with parliamentarians.

The interest of the public in international criminal justice has been aroused by widespread abuses in the former Yugoslavia, Somalia, Cambodia, Liberia, and elsewhere, even though in some countries media attention is limited. It is necessary, therefore, to increase public awareness of current abuses and the potential role of international criminal justice to provide remedial action. It was noted that no country is in fundamental opposition to the establishment of a system of international criminal justice. Skeptical governments will be moved to intensify their efforts only when the call for international criminal justice had been given a chance to provide its objectivity and effectiveness.

5. The Role of the International Law Commission

The participants noted with great satisfaction the progress made by the International Law Commission during the past three years, commenting favorably on the ILC's report to the 47th General Assembly. Indeed, this progress is highly encouraging, given the fact that the Commission's efforts during the preceding four decades had been persistently doomed to ineffectiveness. The participants encourage the ILC to continue their work and to, redouble their efforts, in the hope that the work on the creation of the international criminal court and the code can be completed swiftly. There remains the danger that failure to make progress on either the court or the code might affect progress on the other. The assembly therefore strongly endorses the trend to separate these issues, without detriment to progress on either.

6. The Question of Jurisdiction

There have been three traditional views on the initial jurisdiction of an international criminal court.

(a) Jurisdiction over all international crimes;

(b) Jurisdiction over the most serious international crimes (aggression, war crimes, genocide, etc.);

(c) Jurisdiction over some specified international crimes, such as terrorism and international drug trafficking.

In the case of (b) and (c), it is the general view that, gradually jurisdiction should be increased to cover additional international crimes. But there continues to be a difference of views as to whether to adopt options (b) or (c). It may be necessary and possible to negotiate a pragmatic compromise on the question of initial jurisdiction. There are advantages and disadvantages to both approaches (b) and (c), it being generally agreed that the wholesale international approach (a) might tax a fledgling international criminal court.

7. Universal Jurisdiction

It was agreed that the ICC should have universal jurisdiction, but not exclusive jurisdiction. Any country with territorial (or other internationally recognized) jurisdiction, could, under the most recent conventions, institute its own proceedings, extradite the defendants to a requesting country with jurisdiction, or to the I.C.C. Under these circumstances the question of consent does not arise. It was left open whether the I.C.C. should have original and exclusive jurisdiction with respect to the most serious international crimes (crimes punishable directly under international law).

8. Applicable Law and Procedure

The ICC should apply international law and fashion its own rules of procedure, consistent with its statute, international law, and the United Nations standards, norms and guidelines in criminal justice and human rights. There was a preference for the court's applying a truly international law in interpreting the definitions outlined in the conventions and in codifying (fashioning proportions of) the general part, until such time as these may be elaborated by convention. To that extent the court, in fashioning its law, may have to rely on propositions of relevant national laws.

9. Transnational Crimes

There are a variety of transnational crimes which could be likened to crimes under international law. It may be feasible to invest the I.C.C. with jurisdiction over such crimes on the application of countries with jurisdiction. Such crimes may include transnational economic crimes, environmental crimes, the selling of children for organ transplants, and others.

10. Invoking the Jurisdiction of the Court

It was agreed that the Jurisdiction of the court could be invoked by any state with jurisdiction, and it was furthermore suggested that international agencies, especially the Security Council, could likewise invoke this jurisdiction.

11. I.C.C. Services

It was agreed that the I.C.C. needs the personnel for the investigation, accusation and prosecution of international crimes. It also needs an appellate division, in accordance with international law.

12. Enforcement Power

The I.C.C. must be invested with enforcement power, to be exercised or supervised especially by the Security Council.

13. Execution of Sentences

There was general agreement that the I.C.C. needs a correctional system for the execution of sentences which cannot be executed in the home state of a defendant.

14. Conciliation Procedures

It was suggested that the court might be invested with a mechanism to seek conflict resolution and conciliation, or even on ombudsman-type process for the evidence of impending conflict.

15. Regional International Criminal Court

It was recommended that international criminal justice could be achieved by the establishment of

(a) Regional chambers of the I.C.C., or

(b) Separate regional international criminal courts to be established by regional intergovernmental organizations.

In the case of (a), decisions could then be referred on appeal to the I.C.C., particularly so as to achieve uniformity of law. It was also suggested that the regional tribunals should exercise jurisdiction over all but the most severe international crimes (crimes punishable directly under international law), as to which the I.C.C. should have jurisdiction. It was also suggested that the judges of the I.C.C. could sit on assignment at the various regional chambers, as the need arises. Under no circumstances should support for regional criminal courts or chamber detract from the primary emphasis of achieving the establishment of the international criminal court.

16. No Selective Jurisdiction as to Crimes

The proposal was made that states should be able to accede to the jurisdiction of the I.C.C. as to only some crimes, but not as to others. There was considerable concern about this proposed approach which could lead to an uncontrollable disregard of recognized crimes which, to begin with, are universal. The idea was rejected.

17. No Discriminating Jurisdiction as to Defendants

To avoid any semblance of discriminatorily selective enforcement, all countries, rich and poor, strong and weak, shall be subject to the jurisdiction of the I.C.C., even though, in some cases, it may only be possible to indict (and thereby stigmatize) a defendant without the possibility of trying him or her. Any notion of "victor's justice" should be avoided.

18. Standing Committee of States Party

It was agreed that States Party may wish to constitute a Standing Committee, to deal with purely financial and administrative aspects.

19. The Instant Need for Ad Hoc International Criminal Tribunals

Regret was expressed about the failure of Member States of the United Nations to constitute, through the Security Council, an international ad hoc criminal tribunal to deal with the question of the Iraqui aggressiona against Kuwait. The hope was expressed that this mistake not be repeated in the case of the alleged war crimes in Croatia and Bosnia-Herzegovina. Unless criminals under international law can foresee that they will be held accountable under international criminal law, they are not likely to desist from offending, nor would other potential offender. Consequently, it is deemed necessary that an international ad hoc criminal tribunal should be constituted as soon as possible, under either of two auspices, as hereinafter described.

20. A United Nations Ad Hoc International Criminal Tribunal for the Former Yugoslavia

The Security Council has already requested the establishment of a Commission of Inquiry into violations of the Geneva Convention and other international crimes reported to have been committeed in the former Yugoslavia. The Security Council has appointed five experts to constitute the Commission, which has assumed its task. However, note was taken of the fact that the Commission is understaffed and underfunded. Concern was expressed that under these circumstances the Commission might not be able to accomplish its task within a reasonable time. Even if the Commission will be able to complete its assignment and produce evidence of the commission of war crimes, the Security Council would have to establish an ad hoc tribunal for the trial of persons charged. The assembly wishes to urge that the Security Council take all necessary steps in order to accomplish international justice in the case of war crimes and crimes against humanity committed in the former Yugoslavia.

21. A European Ad Hoc International Criminal Tribunal

Fearful that the United Nations may be unable to urgently take the steps suggested above, the assembly urges the C.S.C.E. to follow up on the appointment of its own commission of inquiry by establishing, in the shortest possible time, an ad hoc system for the judicial determination and disposition of alleged international crimes in the former Yugoslavia, by

(a) creating an expert body for investigating all relevant facts,

(b) providing for electronic access to all evidence (assembled facts) for the purpose of

(c) submitting them to a prosecuting organ, to be established, and an

(d) accusation chamber, which would ready the case before

(e) an ad hoc tribunal for trial, with

(f) an appeal to an appellate tribunal.

22. Converting Ad Hoc Tribunals into Standing International Criminal Courts

As to either of the above two possible ad hoc tribunals, if their efforts turn out to be successful, the constituting body may wish to consider keeping them in place for possible conversion into permanent international criminal courts.

23. From Vision to Necessity

The assembly wishes to emphasize that what once was vision has now become a necessity. These recommendations are made with the sober realization that just a few hundred kilometers from here international criminal law, and the human rights of millions, are being violated constantly, systematically, and without fear of consequences on the part of the offenders. The time to act is now. We appeal to the conscience of all those whose political will is necessary for achieving international criminal justice now and for all future.