Ever since the use of force was prohibited in international relations, war can no longer be used as an alibi for individuals or bodies of the State to justify cruel and inhuman behaviour (war crimes).

Even at the time of the elaboration of the Convention on genocide, it had been understood that the only effective way to repress a crime (often closely linked to the action of the government of a State) was by instituting an International Criminal Court (provided for in Article VI of the 1948 Convention). However, not one of the international projects developed from 1947 onwards was followed up.

And the decision taken in 1991 by this General Assembly, which showed great wisdom when, after many years of discussion concerning the drawing up of a Code of Crimes against the Peace and Security of Mankind (the draft of an important International Penal Code), it gave priority to the institution of a permanent international tribunal with Resolution 46/54 of December 5, 1991, calling upon the International Law Commission, within the framework of the draft Code of Crimes against the Peace and Security of Mankind, to further consider and analyze the issues raised in its report on the work of its 42nd Session concerning the question of an international criminal jurisdiction, including proposals for the establishment of an international criminal court or other international criminal trial mechanism, in order to enable the General Assembly to provide guidance on the matter.

With regard to procedures for instituting the Court, the solution that has been chosen is the conclusion of an international Convention that would bind only those States which agree to be bound by it. This method allows for the Court's jurisdiction to be enforced according to the wishes of a State, and, for this reason, involves the risk of a more limited membership. But it also makes it possible to overcome the difficulties presented by the alternative method of a General Assembly resolution instituting the Court as one of its subsidiary bodies (what would be the condition for enforcing jurisdiction in States that voted against the Court's institution?)

Neverthless, we must bear in mind that in its consultative opinion of July 13, 1954 the International Court of Justice accorded this power to the General Assembly. If it renounces such a power, the General Assembly will clearly have every right to at least recommend that Member States of the United Nations conclude the Convention instituting the International Criminal Court. The International Criminal Court and the United Nations would subsequently be able to conclude an accord that would suitably define their own relations on the matter (Article 2).

Regarding substantial law, according to the I.C.C. Project the Court would have jurisdiction over the crime of genocide (in this way enforcing the provision made in the Convention on genocide of 1948); over the crime of aggression; over war crimes, and crimes against humanity. This obviously refers to those categories of crimes governed by international customary law, which the international community fully agrees should be punished. Concerning other offences provided for in international agreements, Article 21 and the annex to the I.C.C. Project provide for the Court having jurisdiction only in the case of extremely grave crimes. Reference is made to the violations of the Geneva Conventions of 1949 and relative Protocol, to the Conventions of The Hague and of Montreal on skyjacking, the Antiapartheid Convention, the Convention for the protection of diplomatic agents, the Convention on the taking of hostages, the Convention on torture, the Convention on piracy, and the Convention on drug-trafficking.

According to the I.C.C. Project, States can acknowledge their acceptance of the Court's jurisdiction in a general declaration issued upon conclusion of the institutional Convention (or afterwards), and this can even be done with regard to a single case by a State that has not acceeded to the Statute. Said declaration can also concern just one of the crimes over which the Court generally has jurisdiction (Article 22). With regard to the acceptance of, and the action that can be taken by, the interested States, in the case of genocide provision is made permitting a request to be put forward by a State that is party to the Convention of 1948 (Article 25.1); in other cases, the request can be put forward by any one of the other States that have acceded to the institutional Convention of the Court (Article 25.2). The action can only be carried out if the State detaining the suspect or the State in which the crime was commited have issued a declaration accepting the Court's jurisdiction over the crime in ques

tion (Article 21.1(b)). This refers to what is defined by the I.C.C. Project as the "Prerequisite for the acceptance by States of the Court's jurisdiction" (Article 21 that also refers to Articles 20, 22, 25); which means the series of further opportunities accorded States to give their consensus, rendering the jurisdiction of the Court flexible and thus increasing the possibility of States acceding to the institutional Convention of the Court.

Concerning the relationship with the Security Council, the I.C.C. Project renders useless the creation of a series of Tribunals for single issues and States (Rwanda, etc.). According to Article 23 of the I.C.C. Project, the Security Council can always submit to the Court any case provided for in Chapter VII, even if the Court is created by a Convention. The Security Council will most likely want to utilize a judiciary structure that already exists rather than create a new one; but when the Court acts under the authority of the Security Council it will obviously not need to seek the agreement of interested States. In substance, no State will be able to escape the jurisdiction of the Court when the action is promoted by the Security Council, as already provided for in the Tribunal for crimes commited in the Ex-Yugoslavia. Moreover, in full respect of the obligatory nature of the decisions made exclusively by the Security Council for all members of the United Nations, the I.C.C. Project reserves for the la

tter the right to determine the existence of an aggression and/or a threat to peace, prior to any action being brought before the Court.

Lastly, the I.C.C. project establishes reasonable criteria for determining the punishments to be inflicted. With the exclusion of the death penalty (Article 47.1(a) that speaks only of imprisonment), the sentence will be established in accordance with the punishment provided for by the laws of the State of the accused; the laws of the State where the crime was committed; or the laws of the State that had the accused in custody (Article 47.2 (a) (b) (c). It will also be possible to appeal against first-degree sentences at the appropriate level.