UPDATE:

TO: INTERNATIONAL LAW SUB-NETWORK

FROM: Dip. Emma Bonino/William Powell, MP

Kennedy Graham, Secretary-General

Re: International Criminal Court: Parliamentary Action

Attached is a report of our second round of consultations with members of the International Law Commission (ILC), currently meeting on, inter alia, the draft statute for a permanent international criminal court. As yoi see, progress is good.

Now is the critical time of the year for parliamentarian action to provide political support for this issue. Between July and September, governments prepare briefs for the General Assembly, whose Sixth (Legal) Committee deals with the subject in early October. The ILC has completed its report to the Sixth Committee, containing a finished draft statute for a permanent court. That, in the opinion of the ILC, will represent the end of its task as individual experts, and it will thenceforth be for the General Assembly to commence the political work of getting a consensus on the draft. It will be a major accomplishement for the ILC to have completed a draft statute within two years of being requested by the Assembly to do so.

We therefore request that the following action be taken by the subnetwork:

* MPs in recess in the northern hemisphere form delgates of two or three colleagues across party lines and meet with the Foreign and Justice Ministers, urging them to take a positive political approach to the principle of a court and the commencement of a conference in 1995;

* MPs in the southern hemisphere raise the subject in the legislatures, with the same objective.

We hope that we can mount a coordinated campaign on this issue across 30 or more parliaments over a two-month period; mid-July to mid-September. We appeal to you to respond to this call. We shall follow up by telephone over the next few weeks, and shall send you progress reports on developments in each parliament.

PGA DISCUSSIONS WITH INTERNATIONAL LAW COMMISSION

On 11 July 1994, a PGA delegation, headed by Mr. William Powell, MP (UK), held discussions with the following members of the International Law Commission (ILC):

Mr. Gudmundur Eiriksson (Iceland)

Mr. Qizhi He (China)

Mr. Mehmet Guney (Turkey)

Mr. Patrick Lipton Robinson (Jamaica)

Progress has been quite good, much better than forecast by Secretariat officials and ILC members in May. The Commission's plenary gave a first reading to the 1993 draft statute prepared by the Working Group (International Criminal Court), and made comments which the WG has taken up. There is substantive agreement on the main issues and theWG will present a revised draft statute back to plenary this week. The ILC has completed its Final Report, which is expected to contain an agreed draft statute. The Report is expected to recommend that the General Assembly call for a plenipotentiary conference in 1996 to adopt a statute and establish a permanent international criminal court.

The proposed jurisdiction of the Court has been expanded from earlier versions. Four crimes in general international law are identified in the body of the draft statute: genocide, aggression, war crimes and crimes against humanity. In addition, a draft annex contains specific treaties that would be covered ab initio: torture, narcotics, apartheid, aircraft hijacking, hostage-taking, and protection of diplomats: The annex may be added to, as new treaties specify new international criminal law. Very few significant international crimes seem to be omitted. The Report will maintain its decision of last year to separate the establishment of a criminal court from the completion of the draft Code of Crimes, lest the latter cause delay.

There are, however, some unresolved political issues which the ILC is not competent to resolve. The principal one is the relationship between the UN Security Council, which has the power to determine whether a state has committed aggression and to take enforcement action against it, and the international criminal court which will receive charges that an individual, perhaps the head of that state or government, has violated international criminal law by leading the state into aggression. The Council would be the only entity in addition to states with the poweeeeer to bring such a charge, but it may also have the power to veto a charge being brought by a state. Given Third World sensitivity over the broad use by the Council of its current powers under the Charter in areas of legal concern (such as the Libya-Lockerbie case), this issue may prove contentious.

The procedure for its creation is also not resolved. The General Assembly could, as a few prefer, establish the court as a subsidiary organ by way of a resolution. Creating it as a principal organ of the UN would require charter amendment and it unlikely to be favoured. The report is likely therefore to call for a plenipotentiary conference in 1996 to negotiate a statute and establish the court, with two prep-coms in mid and late 1995.