NEW YORK, 21 OCTOBER 1997
SUMMARY RECORD OF THE STATEMENT BY PROF. PAULA ESCARAMEIA, REPRESENTATIVE OF PORTUGAL, TO THE GENERAL ASSEMBLY 52nd SESSION, SIXTH COMMITTEE (Agenda item: establishment of an International Criminal Court)
Ms. Escarameia identified three main pairs of conflicting imperatives that had underlain the process of establishing an international criminal court from the beginning, becoming more and more apparent as remarkable progress had been made.
The first conflict was between universality in the courts membership and the effectiveness of its powers. While universality was desirable, the courts powers must not be watered down to the point where it became a sham. That conflict could be seen in the issues of the definition of crimes and judicial cooperation with the court, but was strongest in the question of complementarity; the delegation of Canada was to be commended for its mediation during its chairmanship of the working group dealing with draft article 35 on admissibility (A/AC.249/1997/L.8/Rev.1, annex I), at the Preparatory Committees August session. Portugal would prefer clearer primacy for the court over national systems, but could accept a compromise arrangement with the proviso that the court itself must have the final say as to its own competence. Under the 1949 Geneva Conventions and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, already considered customary international law, most States were already obliged to try, and convict, individuals who had perpetrated almost any of the crimes over which the court would have jurisdiction. It would be a setback if the court were established without those powers.
The second conflict was between the level of detail of the rules to be laid down and the need for rapid progress to be made, and was particularly acute in relation to a number of rules of procedure, the definition of crimes and the prosecutors investigatory powers. Precise principles were better than detailed rules as drafting them would not unnecessarily slow down the work of the Preparatory Committee and would not result in a rigidity that left the court unable to deal with situations as they arose. Any permanent institution had to have flexibility, and it was to be welcomed that those currently involved in international criminal judicial organs had said as much in their statements before the Preparatory Committee. An institutional mechanism for revising the statute such as the one Portugal had sponsored would be a way of resolving the conflict.
The third conflict lay between the role of States and the roles of such other entities as the Security Council and the prosecutor; in various forms, it could be seen in the debates on draft article 23, concerning the role of the Security Council, on draft article 25 bis, concerning the prosecutors triggering power, (A/AC.249/1997/L.8/Rev.1, annex I) and on how victims or witnesses were to be treated in institutional terms. Her Governments position was that the court must, while preserving its independence, be open to any input that might help bring perpetrators to trial. It therefore viewed the prosecutors ex officio powers to trigger an investigation on the basis of a complaint from any source as essential and favoured allowing the Security Council to submit situations to the court. And it would be contradictory for an international court set up to bring justice to the victims of extremely serious crimes to deny access by individuals.
The diplomatic conference should last between five and seven weeks and non-governmental organizations should be allowed to participate on the basis of rules of procedure agreed beforehand. Her delegation believed that the conference would succeed, particularly because everyone involved was mindful of the expectations of millions of people and knew that law was civilizations best instrument for dealing with abuses of power.