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The ILC’s Draft Statute for an International Criminal Tribunal

Published online by Cambridge University Press:  27 February 2017

James Crawford
James Crawford*
Affiliation:
University of Cambridge International Law Commission
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Extract

At its forty-fifth session in 1993, the International Law Commission took note of the report of a working group containing a Draft Statute for an International Criminal Tribunal, and transmitted that report to the General Assembly for comment. This is the second stage in a process that began in 1992, when the Commission established a Working Group on an International Criminal Court, which laid down the basic parameters for a draft statute. Its general approach was endorsed by the Commission and subsequently by the General Assembly. The Draft Statute adopted by the working group in 1993 gives effect to that approach, although with a number of refinements and much added detail. The third stage of the process is intended to occur in 1994, when the Commission hopes to adopt a final version of the Draft Statute, taking into account comments made on it at the General Assembly and elsewhere. The purpose of this Note is to outline the provisions of the Draft Statute, in the hope of furthering understanding and discussion of its provisions.

Type
Current Developments
Information
American Journal of International Law , Volume 88 , Issue 1 , January 1994 , pp. 140 - 152
Copyright
Copyright © American Society of International Law 1994

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References

1 Report of the Working Group on the draft statute for an international criminal court [hereinafter 1993 Working Group Report or Draft Statute], Annex to Report of the International Law Commission on the work of its forty-fifth session, UN GAOR, 48th Sess., Supp. No. 10, at 255, UN Doc. A/48/10 (1993) [hereinafter 1993 ILC Report].

2 Report of the International Law Commission on the work of its forty-fourth session, UN GAOR, 47th Sess., Supp. No. 10, UN Doc. A/47/10 (1992). See especially Report of the Working Group on the question of an international criminal jurisdiction, Annex to id., at 143 [hereinafter 1992 Working Group Report]. This report was made in response to General Assembly Resolution 46/54 (1991), paragraph 3, which asked the Commission to

consider further and analyse the issues raised in its report on the work of its forty-second session concerning the question of an international criminal jurisdiction, including proposals for the establishment of an international criminal court or other international criminal trial mechanism in order to enable the General Assembly to provide guidance on the matter.

UN GAOR, 46th Sess., Supp. No. 49, at 286, UN Doc. A/46/49 (1991).

3 GA Res. 47/33, paras. 4–6, UN GAOR, 47th Sess., Supp. No. 49, at 287, UN Doc. A/47/49 (1992).

4 However, the issue was kept alive, to a degree, by work in bodies such as the International Law Association [ILA], see ILA, Report of the Sixtieth Conference, Held at Montreal 12, 377 (1982); ILA, Report of the Sixty-second Conference, Held at Seoul 28, 357 (1986), and by scholars such as Bassiouni, see, e.g., M. Cherif Bassiouni & Christopher L. Blakesley, The Need for an International Criminal Court in the New International World Order, 25 Vand. J. Transnat’l L. 151 (1992); M. Cherif Bassiouni, Draft Statute International Tribunal (Association Internationale de Droit Pénal, Nouvelles Etudes Pénales No. 10, 1993).

5 See SC Res. 827 (May 25, 1993), reprinted in 32 ILM 1203 (1993); Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808, UN Doc. S/25704 (1993), reprinted in id. at 1159. For discussion, see James C. O’Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL 639 (1993); Theodor Meron, The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122.

6 By General Assembly Resolution 47/33, supra note 3.

7 See especially Report of the International Law Commission on the work of its forty-second session, UN GAOR, 45th Sess., Supp. No. 10, at 36–54, paras. 93–157, UN Doc. A/45/10 (1990), for an account of the issues and the history of the ILC’s consideration of them. This was in response to an earlier request from the General Assembly that the Commission consider, in the context of the Draft Code of Crimes, “the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over … crimes which may be covered under such a code, including … illicit trafficking in narcotic drugs across national frontiers.” GA Res. 44/39, para. 1, UN GAOR, 44th Sess., Supp. No. 49, at 311, UN Doc. A/44/49 (1989).

8 See the Commission’s Report on its forty-fourth session and the 1992 Working Group Report, supra note 2.

9 1992 Working Group Report, supra note 2, at 144, para. 395.

10 See Annex to Report of the Secretary-General, supra note 5, reprinted in 32 ILM at 1192.

11 Eleventh Report on the Draft Code of Crimes against the Peace and Security of Mankind, in 1993 ILC Report, supra note 1, at 26 (Doudou Thiam, special rapporteur).

12 ILC Draft Statute, supra note 1, at 265, draft Art. [hereinafter Art.] 13.

13 1992 Working Group Report, supra note 2, at 449–51, para. 395(iii).

14 UN Doc. E/CONF.82/15 & Corrs. 1–2 (1988), reprinted in 28 ILM 497 (1989).

15 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, GA Res. 44/34, Annex, UN GAOR, 44th Sess., Supp. No. 49, at 306, UN Doc. A/44/49 (1989), reprinted in 29 ILM 89 (1990).

16 Article 21 provides for review of the statute after a minimum of five years’ operation, for the purpose, inter alia, of considering whether the Code of Crimes against the Peace and Security of Mankind should be added to the list of crimes in Article 22, in the event that the code is then in force. See 1993 Working Group Report, supra note 1, at 271.

17 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, Annex, UN GAOR, 39th Sess., Supp. No. 51, at 197, UN Doc. A/39/51 (1984).

18 The travaux preparatories of Article VI support that interpretation. See Report of the Ad Hoc Committee on Genocide, 5 April-10 May 1948, UN ESCOR, 7th Sess., Supp. No. 6, at 11–12, UN Doc. E/794 (1948).

19 E.g., under Articles 58(1), 62, 63(3)(c), and 65, 1993 Working Group Report, supra note 1, at 324, 328, 329, and 332, respectively, and also in relation to financing of the court, under provisions not yet drafted.

20 See the discussion of the alternatives in id. at 275–76.

21 Note 14 supra.

22 Such a provision is included in the Draft Code of Crimes, as adopted at its first reading. See draft Art. 25, in Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 250, UN Doc. A/46/10 (1991).

23 ILC Draft Statute, supra note 1, Art. 26(2)(b). See 1993 Working Group Report, supra note 1, at 279, for commentary on this aspect of Article 26.

24 See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK), Provisional Measures, 1992 ICJ Rep. 3, 14–15, paras. 38–42 (Order of Apr. 14).

25 1993 Working Group Report, supra note 1, at 286, Art. 29 Commentary, para. 4.

26 The Security Council’s statute appears to exclude trials in absentia. See Annex to Report of the Secretary-General, supra note 10, Art. 20(2), (3), 32 ILM at 1198. On the other hand, Article 14(3)(d) of the International Covenant on Civil and Political Rights, Dec. ,16, 1966, 999 UNTS 171, which provides that everyone has the right “to be tried in his presence,” clearly does not purport to prohibit trials in absentia, provided that all appropriate steps are taken to bring the charge to the accused’s attention and to allow the accused to be present. See the views of the Human Rights Committee in Mbenge v. Zaire, No. 16/ 1977, 2 Selected Decisions of the Human Rights Committee under the Optional Protocol 76, UN Doc. CCPR/C/OP/2, UN Sales No. E.89.XIV.1 (1990), discussed by Dominic McGoldrick, The Human Rights Committee 420–21 (1991). The European Court of Human Rights has taken a similar approach. See, e.g., Colozza v. Italy, 89 Eur. Ct. H.R. (ser. A) (1985).

27 The Human Rights Committee, however, has taken an extremely formal and limited view of Article 14(7), holding that it is restricted to “an offence adjudicated on in a given State” for a second time, as distinct from adjudications in several states. AP v. Italy, No. 204/1986, 2 Selected Decisions of the Human Rights Committee, supra note 26, at 67. On this view, it may be that Article 14(7) imposes no constraint at all on a second trial in an international court.

28 Annex to Report of the Secretary-General, supra note 10, Art. 23(2), 32 ILM at 1199. There is no explicit provision in relation to appellate proceedings (id., Art. 25, 32 ILM at 1199–1200). But dissents could hardly be permitted at first instance, yet prohibited on appeal.