Statement delivered to the Sixth Committee

by H.E. Edward A. Laing

28 October 1994

/...

Mr. Chairman, the draft statute for the proposed International Criminal Court is, in general, satisfactory to this delegation and in a high state of readiness for an international conference called to draw up a treaty after the completion, next year, of the requisite preparatory work. This delegation notes its general approval of part 1, dealing with the establishment of the court. Of course, Article 2, dealing with relationship to the United Nations, will have to be closely studied and discussed in the light of the Commission's extensive commentary and Appendix III. We are also generally satisfied with Part 2, on the composition and administration of the court. We envisage the day when Article 6 will have to be amended to provide for a larger number of judges than 18. We are generally comfortable with Parts 3 and 4, respectively dealing with jurisdiction and with investigation and prosecution. These can now proceed to deeper analysis and extensive discussion.

Mr. Chairman, turning to Part 5, dealing with the trail, this delegation must, however, register its interpretation of Article 33, dealing with applicable law. It is this delegation's view that paragraph (b), stating as a source "applicable treaties and the principles and rules of general international law," is a reference to exclusively international law norms. These might well include norms induced from general principles of law, including international law, even if they might have had their origins in national laws. However, we cannot agree with Commentary (2), which suggests that the principles and rules there cited include the whole corpus of national law. In fact, this delegation harbours the view that even if paragraph (b) had referred to "general principles of law," as opposed to "general principles of international law," the reference would have incorporated only the broadest or most general principles and not the whole corpus of national law. To obtain the latter result, Mr. Chairman, the para

graph would have to be significantly rewritten.

We notice the important contents of the brief Article 40, on the presumption of innocence, and express our agreement with the placement of the onus on the prosecution to establish proof beyond a reasonable doubt. Nevertheless, in this era of instant global broadcasting, we would expect that courts would vigorously and liberally apply paragraph 4 of Article 44, that there need be no proof of facts of common knowledge. As far as concerns Article 47, on applicable penalties, this delegation accepts the Commission's determination not to recommend the imposition of the death penalty. Nevertheless, one would expect vigorous use of such penalties as fines for the purposes mentioned in paragraph 3. In addition, there should be authorized the transfer of portions of fines to any State in which a convicted person is serving a sentence of imprisonment.

We are generally comfortable with Parts 6 and 7, dealing respectively with appeal and review and with international cooperation and judicial assistance. Finally, on Part 8, dealing with enforcement, we would suggest that Article 59, concerning the enforcement of sentences, should include provision for fines to be enforced through levies against assets in state parties to the Convention.