SIXTH COMMITTEE

REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK

OF ITS FORTY-SISXTH SESSION

(DRAFT STATUTE FOR AN INTERNATIONAL CRIMINAL COURT)

STATEMENT BY ITALIAN DELEGATE

THE HONORABLE EMMA BONINO

NEW YORK, OCTOBER 25, 1994

Mr. Chairman,

At the outset, I would like to join other speakers in congratulating the distinguished Chairman of the International Law Commission, Mr Vladen Vereshchetin, for his clear, insightful, and comprehensive introduction of the Commission's Report on its forty-sixth session. If one considers the size of the report, the number of issues examined, and the results achieved on various fronts, this year the difficulty in summarinzing the outcome of the session was unprecedented.

We are sure that on the solid grounds of Mr. Vereschetin's statement, this year's debate will be particularly rich and substantial, as demanded by the importance of the issues addressed by the Commission.

Mr. Chairman,

As in previous years, this first statement by the Italian delegation is devoted to the issue of the International Criminal Court, on which the Commission has adopted a draft statute, in accordance with the request contained in paragraph 6 of General Assembly Resolution 48/31. We are also pleased with the ILC's progress in the second reading of the draft Code of Crimes against the Peace and Security of Mankind. We still believe that once the Draft Code of Crimes has been approved and entered into force, it should be placed under the Court's jurisdiction.

I would like to express my Delegation's deep gratitude for the Commission's remarkable work to Mr. Doudou Thiam, the Special Rapporteur on the topic "Draft Code of Crimes against the Peace and Security of Mankind," and to Professor James Crawford, Chairman of the Working Group on a Draft Statute for an International Criminal Court. Under ther guidance, the ILC has fulfilled its mandate from the General Assembly with exemplary speed and competence.

In addressing the Draft Statute for an International Criminal Court, I would also like to recall that the distinguished representative of Germany, as Chairman-in-Office, has expressed the views of the European Union, in which we fully concur. We want to add some complementary remarks, in order to address a number of point of issues tha the document raises.

Mr. Chairman,

The new draft prepared by the International Law Commission is definitely an improvement over last year's draft. It completes and integrates the previous draft on issues that were still unsettled or insufficiently addressed. Moreover, it appears flexible and balanced in reconciling the need for an effective Court and respect for prerogatives of state sovereignty. In our view, this point is of the utmost significance for deciding the General Assembly's course of action. We have before us a document that future discussions may certainly improve but that lays a solid foundation for negotiations toward achieving international consensus. Thus we feel that there are no reasons for the UN to delay its response to the spread of tragedies of entire populations and to the most blatant violations of fundamental humanitarian principles. In the statute, the ILC has provided us with an appropriate legal instrument for such a response.

Mr. Chairman,

Let me turn to more specific comments on the following crucial point in the draft Statute: 1) the establishment and composition of the Court; 2) the jurisdiction of the Court; 3) certain aspects of prosecution and trial; and 4) international cooperation and judicial

assistance.

As regards the establishment of the Court and its relationship to the U.N., we support the solution envisaged in the Draft Statute, based on a treaty commitment and on the conclusion of a relationship agreement between the United Nations and the Presidency of the Court. While the idea of amending the Charter to establish the Court as a principal organ of the United Nations is appealing, we realize that it would involve potential problems and the risk of delays. We also agree with the ILC's proposal, already contained in the 1993 draft, to establish the Court as a permanent insitution that will meet only when required to consider a case submitted to it.

On the structure and composition of the Court, we are glad to note that the terminology has been simplified by eliminating reference to the "Tribunal." In the previous draft, the Court would have been one of the bodies of the Tribunal. The method of selecting judges seems to respond to the need for impartiality and competence.

However, I wonder wheter the rigid distinction between recruiting judges on the basis of their criminal trial experience or of their competence in international law would not ultimately prevent the appointment of persons with both qualifications. I also welcome the separation of trial and appellate functions provided for in Art.9 on the constitution of the Chambers of the Court and the reiteration of the fundamental principles of independence of the judges and of the members of the Procuracy.

Some of the most delicate questions faced by the ILC were the Court's competence ratione materiae and the States' acceptance of its juridiction. These points are the core of the entire Statute. The new draft indicates a feasible way to balance different interest and needs. For example, it abandons the distinction between treaties which define crimes as international crimes and treaties on the suppression of conduct constituting crimes under national law, thereby eliminating an additional layer of complexity from the system. At the same time, one of the most important "suppression conventions," the 1988 Convention against illicit traffic in narcotics drugs, has been included in the Annex referred to by Art. 20 (e). We also agree with the Annex's inclusion in its list of the 1984 Convention against torture, which was not mentioned in last year's draft. Moreover, while the new Statute does not confer on the Court generic jurisdiction over violations of customary international law, it grants the Court juris

diction over four types of crimes falling under that category: namely genocide, aggression, serious violations of the laws and customs applicable in armed conflicts, and crimes against humanity.

Last year my delegation noted that the system of acceptance places limits on the Court's jurisdiction. We stressed the need to prevent an excessive reduction of jurisdiction by the sum of individual States' declarations. in principle, we still favor an "opting out" system that would give States Parties the right to exclude some crimes from the Court's jurisdiction. However, we recognize that the Commission's "opting in" approach has its merits, and may facilitate wider acceptance of the Statute. Moreover, in the provisions of Art.21 of the draft, the preconditions to the execise of jurisdiction have been streamlined and simplified. In fact, genocide is still treated separately, and the Court's jurisdiction is subject only to the filing of a complaint by a State Party which is also a Contratcting Party to the 1948 Convention. Furthermore, the requirement in any other case that tthe Court's jurisdiction be accepted by the accused's so-called "custodial State," as distinct from any State having jurisdictio

n under the revelant treaty, is likely to reduce the obstacles to establishing the Court's competence.

We also consider appropriate the solutions contained in Art.23 on the Court's jurisdiction resulting from an action by the Security Council. We welcome that the Security Council will be entitled to refer matters to the Court, as an alternative to establishing ad hoc Tribunals, an approach that we have considered positive in the absence of a Permanent Court, but which cannot be the answer in every case to crimes that affront the conscience of humankind.

Mr. Chairman,

Parts 4 and 5 of the Draft Statute are respectively devoted to investigation and prosecution, and the trial. We consider this system to be satisfactory and consistent with the principles of justice and protection of the fundamental rights of the accused. For the sake of brevity, I will refrain from making detailed comments on the various articles. We are pleased to note tha certain changes in the previous draft reflect the remarks my delegation made last year. For example,

the possibilty of the pre-trial challenges to the jurisdiction of the court is now admitted. Trials in absetia are allowed only in well-defined circumstances. More importantly, we commend the fact that by excluding capital punishment from the sentences that the Court is authorized to impose, the system of applicable penalties remains consistent with every human being's fundamental right to life.

Finally, as far as international cooperation and judicial assistance are concerned, I wish to commend the results achieved by the new draft in specifying and reinforcing States' duties, especially in the areas of transfer of the accused to the Court and the obligation to extradite or prosecute. Here again the ILC has succeeded in providing us with an incisive and well-balanced text.

Mr. Chairman,

Crimes against humanity are being committed-yesterday in Somalia, today in Rwanda and Bosnia and tomorrow in other parts of the world. Genocide, massacres and vengeful acts against the defeated by the vistors are inflicted arbitrarily in the name of violence. the perpetrators of these brutal acts are often rewarded with impunity because, at the international level, there is no authority with the power and instruments to track down and punish offenders.

One could discuss the ideal strsture of an International Criminal Court forever. But the worsening of international crises has greatly reduced the time we have to reflect.

Public opinion demands action, and the Court is the most advanced and far-sighted instrument for counteracting the risk of the law losing its effectiveness, with a consequent rise in more serious aggressive and harmful acts.

Now is the time to take action, and quickly, to create a judiciary mechanism with the necessary authority, operational structures and instruments to punish international crimes, or at least the most serious and dangerous of them.

The Draft Statute for the Court is ready to be discussed by Governments with the view to finalizing the instrument that will establish this new jurisdictional body. therefore, in our view, this 49th General Assembly should start the procedure for establishing the International Criminal Court by convening a diplomatic conference for

1995 to conclude a convention to that effect. In so doing, the international community would show full respect for human dignity, and avoid any complicity with those responsible for heinous crimes, wherever they are committed. I am pleased to announce that Italy would be honored to host such a diplomatic conference.

Mr. Chairman,

There still may be legal problems to be solved, but pubblic opinion will not tolerate further delays. the moment has arrived for the international community to give the world a clear sign of its will for peace with justice, according to clearly-defined rules that

are the same for everyone.

Every postponement, for wathever reason, any ambiguos or hesitant message, will be unacceptable to individuals and to humankind, and create a dangerous gap between public opinion and the

United Nations system. This would not be the right signal, as we prepare to celebrate the 50th anniversary of the founding of the UN.

Instead, what is needed is an appropriate response to states and peoples who believe that law and justice are the foundations of international society.

Thank you, Mr. Chairman.