OF CRIMES AND PUNISHMENTS

In all matters, particularly difficult ones,

no one should expect to reap and sow at the same time,

but should see the need of preparation

so that they gradually reach maturity

F. Bacon

The need for a permanent International Criminal Court is in front of the eyes of those who believe in a fair, effective, international system of justice.

What until recent times seemed impossible to many people has now become a reality. The United Nations has finally decided to set a date for the creation of an International Criminal Court fifty years after the Nuremberg trials. The deadline is June 1998, in Italy. We are grateful to the Italian government for its renewed offer to host the conference of plenipotentiaries in Rome and for its commitment to the success of such an epochal event.

The decision to convene the Diplomatic Conference, set in the General Assembly Resolution A/51/627 adopted December 17, 1996, decisively advances the plans for negotiations. The international community's objective to bring to justice war criminals with a fair international judicial system seems to be on sight.

Although the mandate of the Preparatory Committee is to concentrate on the negotiation of proposals with a view to producing a consolidated text of a convention to be submitted to the diplomatic conference, we should always bear in mind that the whole question still remain exquisitely political.

No Peace Without Justice welcomes the increased participation in the Preparatory Committee. If we really want to reach a general agreement in order to secure the universality of the convention, we should urge the participation of an even larger number of Member States in the drafting process of a widely acceptable consolidated text. Efforts should be made in guaranteeing not only the transparency of the debate, but also in establishing a special fund for the participation of the least developed countries in the preparatory works in New York.

We have asked "When?" for many years. Now we have an answer, 1998. We have asked "Where?" for many years, now we have an answer, Rome. The time has now come to change our question, we should start asking a more precise and political "How?".

Who among the world leaders will be able to seize this moment and pass into history?

Will these decision-makers be able to liberate themselves from the political errors committed in Yugoslavia and Rwanda and end the impunity that culprits of every kind all over the world have enjoyed in this century?

No Peace Without Justice deeply believes that someone must surely trigger the mechanism and define a guiding line for the organization of the future final works of the Diplomatic Conference of plenipotentiaries.

Of Crimes...

After so many decades of discussion, the problem of the definition of "Genocide", "Crimes Against Humanity" and "War Crimes" should not be an impossible task. It does not seem impossible for us to reach a reasonable compromise between "Civil Law" and "Common Law" systems.

During the works of this session of the Preparatory Committee we have seen that there are no substantial oppositions to the definition of "Genocide". We strongly support the preference reserved to the definition stated in the Art.2 of the Geneva Convention of 1948.

We welcome the absence of reluctance on the lack of a requirement for a nexus to armed conflicts as regards "Crimes Against Humanity".

We are aware of the problems linked to the definition of "War Crimes", nevertheless we acknowledge the high and constructive level of the discussion, and we urge for a definition bearing in mind some specific suggestions recently circulated by other international and non-governmental organizations.

No Peace Without Justice is convinced that, after the definition of "Aggression" stated in the Nuremberg Charter Art. 6, it would be extremely unwise not to take into consideration the experience of the first international judicial body. We are fully aware of the problems regarding the inclusion of such a crime in the Statute of the International Criminal Court. Despite these difficulties, related to the crucial role of the Security Council and the consequent independence of the Court, we agree with the opinion of those who favor the proposal of the 1974 General Assembly resolution, which, although incomplete, can be a basis for a further definition of such a crime.

Moreover we acknowledge and support the efforts of some delegations in this direction and hope that the present debate will focus solely on the definition of the crime of "Aggression", leaving the controversial and more political issues, related to the inclusion and the relationship between the International Criminal Court and the United Nations to a more appropriate time.

Furthermore we are of the opinion that the terrible acts of violence perpetrated in recent conflicts all over the world should not be ignored. In this perspective we ask the delegations who participate in this phase of the preparatory works to take into consideration the possibility of including other types of crimes in the Statute of the ICC. Offenses such as gender related crimes, forced disappearance of the population or the use of children in armed conflicts should be subjected to the jurisdiction of the Court.

... and Punishments

The establishment of the two ad hoc International Tribunals has represented a first concrete step towards the possibility to end the perception that even the most outrageous violations of the international humanitarian law could go unpunished.

No Peace Without Justice fully supports the decision taken by the Security Council on establishing the ICTY and ICTR to not include capital punishment in their Statutes as a penalty. We radically oppose the inclusion of such a penalty. We are convinced that an institution, whose objective is to protect and strengthen human rights principles and rules, must firmly exclude capital punishment from its Statute. The purpose of a permanent International Criminal Court is to achieve justice and not pursue revenge. We remain adamant in believing that justice and the death penalty are two incompatible principles.

The lack of tangible results of both the ICTY and the ICTR is the consequence of an inadequate funding by the UNO. This experience should lead to the creation of an effective judicial body which, in order to bring to justice war criminals, should not have a temporary mandate and deserve an appropriate line within the United Nations' budget.

Once again we call on all supporting governments to concentrate their efforts on the main political questions that remain on the table and to keep the momentum and speed up the process so that the remaining sessions of the Preparatory Committee will follow the scheduled agenda and will finalize a consolidated text of a convention for the effective establishment of an International Criminal Court.

What child is this?

The increased number of atrocities committed in recent times force us to broaden the context of action of international justice. With more specific regard to the definition of war crimes, No Peace Without Justice wishes to express its gratitude to those delegations who pointed out the importance of the inclusion of a provision regarding the recruiting of children, both in the international armed conflicts and in the non international armed conflicts. The gravity of such a behavior, systematically perpetrated in the majority of the recent armed internal conflicts all over the world, has its specific provision in the Geneva Convention, Protocol I, 1977 (art.77), and in Protocol II, 1977 (art.4, 3 c), which constitute the basis of the definition of the war crimes. We strongly support the preliminary text drafted by the February session of the PrepCom which includes, such a crime, under the "Other serious violations of international laws applicable both in international and non international armed conflicts". We

are grateful to the International Committee of the Red Cross for disseminating such a useful, comprehensive and effective proposal.