Nov. 1, 1996

Statement by Chen Shiqiu Ambassador of China

Mr. Chairman,

Please allow me on behalf of the Chinese Delegation to congratulate Mr. Adriaan Bos, Chairman of the Preparatory Committee for the Establishment of an International Criminal Court, under whose able leadership the work of the Committee has achieved considerable progress. In addition, I wish to express my sincere gratitude to members of the Secretariat who, with their highly efficient work, have made important contribution to the work of the Committee.

Mr. Chairman,

The Preparatory Committee has carried out in greater depth a substantive work on the draft Statute for an International Criminal Court, as mandated by resolution 50/46 of UNGA, and made major progress in its work. However, my delegation considers it an indisputable fact that serious differences of position exist on all major issues concerning the establishment of an International Criminal Court, and, in particular, in respect of such issues as the scope of the Court's jurisdiction, definition of crime, principle of complementarity, trigger mechanism and the role of the Security Council, as clearly demonstrated by the outcome of the two successful sessions of the Preparatory Committee are very useful in helping countries to understand each other's position and to have more dispassionate and objective assessments of the realities and prospect for the establishment of an ICC, my delegation also takes note of the fact, in respect of the mandate given by the UNGA resolution 50/46, the Preparatory Committee only c

onsider major substantive as well as administrative issues arising out of the draft Statute; but as the workload of the consideration of substantive issues was simply heavy, the Preparatory Committee was obviously not capable of drafting a widely accepted consolidated text of the convention.

Mr. Chairman,

This delegation wishes to elaborate its position on the following important principles of the established of an ICC

REGARDING THE PRINCIPLE OF COMPLEMENTARITY:

Discussions for the past two years have led to the realization that this is a fundamental principle for the establishment of an ICC that must be clearly envisaged in the text of the future Convention. The Chinese Government has always maintained that, in contemporary international community, States must bear the primary responsibility for the prevention and punishment of international crimes; the judicial system of a State is the principle mechanism for the prevention and punishment of all crimes, including international crimes; and in overwhelming majority of circumstances, it effectively plays the leading role, no other mechanism or institution can supersede it. An ICC, set up to deal with certain special and exceptional circumstances, can only be a complement to national courts. I believe that this already represents a consensus in the ICC. It is my view that, in order to prevent or minimize unnecessary jurisdictional conflicts between the ICC and national courts, the future Convention should make explici

t provisions to define clearly their jurisdiction.

REGARDING THE PRINCIPLE OF CONSENT OF STATE:

This is another fundamental principle for the establishment of an ICC. The Chinese Government has consistently maintained that, according to the principle of State sovereignty, the jurisdiction of the ICC must be based on consent of State. Except in certain special and exceptional circumstances as provided for the Convention, and regardless whether the jurisdiction of the Court is confined to the most serious core crimes, the jurisdiction of the ICC shall not automatically supersede that of the national courts. Consent of State must remain, in all cases, the basis of jurisdiction of Court. The draft Statute by the International Law Commission has provided inherent jurisdiction for the Court without consent of State in respect of the crime of genocide. This goes against both the principle of State sovereignty and the principle of complementarity. This delegation does not support such an approach. And needles to say, we are against any attempt in favor of expanding the so called inherent jurisdiction to other

international crimes.

Mr. Chairman,

Since the establishment by UNGA of the ad hoc Committee and, subsequently, the Preparatory Committee, in-depth discussions of the draft Statute of the ILC has been carried out, and problems with this draft Statue have been clearly identified. In the view of the outcome of the two sessions of the Preparatory Committee, the basic conditions are already present for beginning the negotiations on the drafting of a consolidated text of a Convention. My delegation endorses a decision by UNGA at this session to mandate the Preparatory Committee to carry out this work.

Mr. Chairman,

The Preparatory Committee will find its workload very heavy in taking the next step, especially in view of the fact that there is not yet a widely acceptable draft text to serve as the basis for the negotiation. While noting that the PrepCom has already issued a compilation of proposals of member states, this is quite far from becoming a widely acceptable consolidated text. There is still need for States t make further comments and additional proposals thereon before a consensus can be finally reached.

Mr. Chairman,

As the question of the international conference of the plenipotentiaries, my delegation understands the urgent desire shared by some countries fro an early establishment of an ICC; and is not against convening the conference of plenipotentiaries as soon as possible when conditions for its success are ripe. But the convening of the conference of plenipotentiaries is itself is not the ultimate goal of the international community. Our goal is to establish an ICC universally accepted by States. Moreover, this delegation is of the view that any decision on this matter should be based on the actual progress of the next stage of the work of the PrepCom. The international community should adopt an attitude of realism toward the establishment of an ICC; we should first resolve the many complex issues in this regard, and make an objective assessment of the amount of time required for their satisfactory resolution; moreover, we should also be aware of the real risk of haste making waste: years of effort by the internat

ional community for the establishment of an ICC may go down the drain because of ill-advised rush. We believe that the convening of the conference of plenipotentiaries must have, at the minimum, the following preconditions: there is a text for a draft convention already fully developed, negotiations on complex legal and other technical issue are basically concluded, We are convinced that only when such conditions are ripe, can we be assured of a successful conference of plenipotentiaries, rather than a conference of indefinite duration, which will turn into another ad hoc Committee of Preparatory Committee, albeit in a different format.

In view of the fact that universally is the fundamental condition for the success and efficiency of an ICC, the international community should try by various means to ensure wider participation in the work of the PrepCom. REgrettably, many developing countries have not been able to participate in the work of either the ad hoc Committee or the PrepCom. A major reason for this is the lack of financial resources. My delegation is of the view that, in order to facilitate participation by developing countries, financial resources from diverse sources should be utilized, including funds from such sources as various UN funds, and voluntary contributions by governments, NGOs and private donors.

To secure widest possible acceptance by the international community of the future ICC, The PreoCom, in making arrangements of future meetings, should seek to ensure the following: interpretation and translation services to be provided to experts and delegates; no two meetings of the PrepCom held simultaneously; sufficient transparency for all kinds of consultations; decisions by consensus, etc.

Thank you, Mr.Chairman