STATEMENT BY TREVOR CHIMIMBA

MEMBER OF THE MALAWI DELEGATION

ON THE SIXTH COMMITTEE

(New York, November 28, 1994)

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Mr. Chairman

... The establishment of an international criminal court, whether rightly or wrongly, has always brought into focus the often unsaid tensions in the co-existence between the old Westphalian model and the new UN Charter model in contemporary international legal order. The principle of sovereignty in contemporary international law becomes severely tested, and the issue is whether a proper balance has been reached. In the past, tribunals of this nature have invariably been temporal in nature and have exercised international jurisdiction by reason of the law applied. They have also been established after the occurrence of a horrendous event or series of events. Would the reason for this have been more fundamental than the mere choice between a permanent and temporary institution? What impact will a permanent court, although we realize the present draft does not make such an institution wholly permanent, have on international relations? We believe these are valid questions that have to be debated, if not ans

wered.

Mr. Chairman,

It is noteworhthy that the draft Statute will be concerned with serious crimes. This will have an obvious impact on the balancing act. One eminent author has drawn a distinction between "individual" and "system" criminality. While the former are crimes committed at one's own initiative and for selfish reasons the latter represent crimes committed on a large scale and with the encouragement or acquiescence of government authorities. Would this distinction not help us to come up with the crimes for which the court will have jurisdiction? Some of the Treaties that have been listed in the Annex seem to us "only regulate conduct or prohibit conduct but only on an inter-state basis." They are therefore likely to raise some threshold issues, arising from the different perceptions that states have on the relationship between municipal and international law.

Mr. Chairman,

While inavailability and ineffectiveness of national criminal justice systems has been given emphasis in the preamble, it pleases us that the draft Statute contains guarantees for the accused. We are not sure, however, that the question of fairness of the whole system has been fully addressed. Would the transfer from the national jurisdiction to an international jurisdiction be fair on the accused, particularly where such an institution is permanent? Would an accused person who manages to contest an y on the ground that such y would amount to torture as between two competing national jurisdictions also be in a position to do so when the national jurisdiction competes with the international jurisdiction? These questions may be hypothetical but they do raise human rights considerations and whether a proper balance has been arrived at.

Mr. Chairman,

The commission has informed us that it will endeavour to complete by 1996 the second reading of the draft articles on the Code. Although the Sixth Committee has avoided to make a rigid link between the adoption of the draft Statute and the draft code, such a possibility offers chances for a more comprehensive and certain regime.

Mr. Chairman,

The relationship between the court and the UN is another issue that requires deliberation. Although an amendment to the Charter could be preferred, that approach does not appear realistic at the moment. On the other hand, a number of developments are taking place within the UN, including the current debate about reform of the Charter soon. The proposal for the Court to be one of the principal organs of the Charter does not therefore appear far-fetched. Such a proposal could form part of the package on UN reforms.

Mr. Chairman,

It will have become apparent that my delegation is not in favor of convening an international conference as immediately. We believe that the issues raised here and by other delegations, and in actual fact the Working Group has raised them in paragraphs 42 - 76 of the commission's Report, can best be dealt with is some form of preparatory process which could also be linked to the activities concerning the U.N. Decade of International Law. The envisaged Peace Conference would suit us fine, as the deadline for concluding this important process. This will be the conclusion of a process that will usher us in the 21st Century. We therefore advocate a holistic approach to the important initiative before us.

Mr. Chairman,

I thank you.