Establishing an International Criminal Court and an International Criminal Code - Observations from an International Criminal Law viewpoint-¹

Kai Ambos²

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I. Introduction

The almost total impunity for war crimes and grave human rights violations, be it in the former Yugoslavia or in states of less public interest like Columbia or Peru, Togo or Liberia - to mention only a few - led to calls for the further development of mechanisms of international criminal justice. Efforts in this direction,³ dating from the Nuremberg and Tokyo war crime trials, experienced an unexpected political push with the end of the Cold War and the establishment of the ad hoc tribunals for the former Yugoslavia⁴ and Rwanda⁵. Recently, codification efforts can be seen both on the procedural and on the substantive level. The UN-International Law Commission (hereinafter "ILC") prepared a draft-statute for a permanent International Criminal Court ("ICC") in 1994 (ILC-Draft Statute⁶) and began reworking its "Draft Code of Crimes Against the Peace and Security of Mankind" whose preliminary version was approved in 1991(hereinafter Draft Code 1991⁷) and the final version in 1996 (Draft Code 1996⁸).

Regarding the ILC-Draft Statute the General Assembly (GA), at its 49th session in 1994, decided to establish the ,,Ad Hoc Committee on the Establishment of an ICC" which held two sessions in 1994. At its 50th session in 1995 the GA decided on the basis of the Ad Hoc Committee's report⁹ to establish the ,,Preparatory Committee on the Establishment of an ICC" (PrepCom) which has to prepare a consolidated text of a convention to be considered by a conference of plenipotentiaries. At its first session, hold in March/April 1996, the PrepCom considered substantive, procedural and administrative issues;¹⁰ at its 2nd session in August 1996 it took into account the Draft Code 1996 and dealt with further procedural and organizational questions regarding the establishment of an ICC.¹¹

In a parallel development, an independent committee of experts met to work on an alternative draft to the ILC-Draft Statute in June of 1995 in Siracusa, Italy ("Alternative-Draft").¹² This Alternative Draft was later amended by a Draft General Part, containing in 21 articles the most relevant criminal law provisions of a general part.¹³ Many of these proposals have been adopted by the PrepCom¹⁴ and have influenced the Draft Code 1996. The diagram attached [or set out below] gives an overview of the most important procedural provisions of the Yugoslavia Statute, the ILC Draft Statute and the Alternative Draft.

The following observations intend to give an overview over some procedural and substantive problems of the aforementioned statutes and the Draft Codes 1991 and 1996. Given the limited space of this article and the number of provisions to be considered it was not possible to examine all problems as thorough as necessary. However, it is hoped that the biliographical references will encourage the reader to further research.

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1 I am very grateful to Ms. Virginia Morris, UN-Codification Division; Prof. Dr. Christian Tomuschat, Humboldt University Berlin; Dr. Simon, UN-library Geneva and Dr. Schlunck, Ministry of Justice (Bonn) for information provided for this article. I am indebted to Emily Silverman, J.D. (Berkeley), LL.M. (Freiburg/Br.), for refining the English and for critical comments.

2 Dr. jur. (University of Munich). Research fellow of the Max-Planck Institute for foreign and international criminal law (in charge of the sections international criminal law and spanish speaking Latin America); assistant prof. of criminal law, University of Freiburg.

3 The work for a permanent ICC began at the end of the 40s but was then suspended from 1954 until 1981 (for background and development see: J. Deschênes, Towards international criminal justice, Criminal Law Forum (hereinafter CLF), vol 5, No. 2-3 (1994), at 249-278, 272ff.; P. Burns, An international criminal tribunal: the difficult union of principle and politics, Criminal Law Forum, vol. 5, No. 2-3 (1994), at 341-380, 351ff.). In the post-war period, in particular the Association Internationale de Droit Pénal (AIDP) as well as the professors H.-H. Jescheck (Freiburg, former president AIDP), O. Triffterer (Salzburg) and - currently - Ch. Bassiouni (Chicago) have continued working in this area. Bassiouni himself proposed his own draft: Draft Statute International Tribunal, Toulouse (AIDP/érès) 1993.

4 Hereinafter "Yugoslavia Statute". The text can be found in the UN-document S/25704, 3 May 1993, par. 32ff. It was approved by resolution 827 of the UN-Security Council of 25 May 1993. The "Rules of Procedure and Evidence" were adopted by the Tribunal on 11 February 1994 (UN-Dok. IT/32, 14 March 1994; 33 ILM, 1994, at 493ff.) and amended most recently on 23 April 1996 (IT/32/Rev.8). Regarding the assignment of defence counsel see "directive on assignment of defence counsel" (IT/73/Rev. 2, 30/1/1995). Regarding the Statute see in particular K. Oellers-Frahm, Das Statut des Internationalen Strafgerichtshofs zur Verfolgung von Kriegsverbrechen im ehemaligen Jugoslawien, in: ZaöRV 54/2 (1994), at 416-445; B. Graefrath, Jugoslawien und die internationale Strafgerichtsbarkeit, in: Hankel/Stuby (eds.), Strafgerichte gegen Menschheitsverbrechen: Zum Völkerstrafrecht 50 Jahre nach den Nürnberger Prozessen, Hamburg 1995, at 295-324; J. C. O'Brien, The International Tribunal for Violations of International Humanitarian Law in the former Yugoslavia, 87 AJIL (1993), at 639-659 und R. Zacklin/D. Shraga, The International Criminal Tribunal for the Former Yugoslavia, 5 EJIL (1994), at 360-380. Regarding the first practical cases (Tadíc and Nikolic) see L. Vierucci, The First Steps of the International Criminal Tribunal for the Former Yugoslavia, 6 EJIL (1995), at 134-149; R. Maison, La décision de la Chambre de première instance n° I du Tribunal pénal international pour l'ex-Yougoslavie dans l'affaire Nikolic, 7 EJIL (1996), 284-299; and below note 99. About the political background see D. Forsythe, Politics and the International Tribunal for the Former Yugoslavia, CLF vol. 5, No. 2-3 (1994), at 401-422. - Concerning the "Rules" see J.E. Schutte, Legal and practical implications from the perspective of the host country, relating to the establishment of the International Tribunal for the Former Yugoslavia, CLF vol. 5, No. 2-3 (1994), at 423-450, 431ff; D. Nsereko, Rules of procedure and evidence of the International Tribunal for the Former Yugoslavia, CLF vol. 5, No. 2-3 (1994), at 507-555. - Concerning the Dayton agreement: 7 EJIL (1996), pp. 147-244. An overall analysis is now provided by Bassiouni/Manikas, The law of the International Criminal Tribunal for the Former Yugoslavia, N.Y.1996

5 SC-Resolution 955 (1994), UN-Doc. S/Res/955 (1994), 8 November 1994. Rules of procedure and evidence adopted on 29 June 1995 (ITR/3/Rev. 1), a 2nd rev. was made in the middle of 1996.

6 "Draft Statute for an International Criminal Court". (Report of the ILC on the work of its forty-sixth session, 2 May - 22 July 1994, GA, official records, forty-ninth session, supplement No 10 (A/49/10), par. 42-91, pp. 29-161). Regarding the Draft of the "Working Group" see J. Crawford, The ILC's Draft Statute for an international Criminal Tribunal, 88 AJIL (1994), at 140-152; the same, The ILC adopts a Statute for an International Criminal Court, 89 AJIL (1995), at 404-416. In addition, various other drafts have also influenced the ILC (see Bassiouni, supra note 1, at 3ff., 28ff., enumerating in total 11 official and 10 inofficial drafts).

7 "Draft Code of Crimes against the Peace and Security of Mankind", (Report of the ILC on the work of its forty-third session, 29.4.-19.7.1991, General Assembly, Official Records, Forty-Sixth Session, Supplement No. 10, A/46/10, at 238ff.). See Bassiouni (ed.), Commentaries on the International Law Commission's 1991 Draft Code of Crimes against the Peace and Security of Mankind, Toulouse (AIDP/érès) 1993; C. Tomuschat, Die Arbeit der ILC im Bereich des materiellen Völkerstrafrechts, in: Hankel/Stuby (supra note 2), at 270-294; T. McCormack/G. Simpson, The International Law Commission's Draft Code of Crimes against the peace and Security of Mankind: An Appraisal of the Substantive Provisions, CLF vol. 5, No. 1 (1994), at 1-55.

8 ILC, 48th session, 6 May-26 July 1996, UN-Doc. A/CN.4/L.532.

9 See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, General Assembly, Official Records, Fiftieth Session, Supplement No. 22 (A/50/22).

10 Draft Report on ,,General Principles of Criminal Law", UN-Doc. A/AC.249/CRP.9, 4 April 1996; see also Lehtonen, IELR 1996, at 274-276.

11 See Report of the Preparatory Committee on the Establishment of an International Criminal Court, General Assembly, Official Records, Fifty-First Session, Supplement No. 22 (A/51/22 and Add. 1). See also the press releases in: http://www.un.org/smlogo.gif" (Internet).

12 Association Internationale de Droit Pénal (AIDP)/International Institute of Higher Studies in Criminal Sciences (ISISC)/Max-Planck-Institute for Foreign and International Criminal Law (MPI), Draft Statute for an International Criminal Court-Alternative to the ILC Draft (Siracusa Draft), prepared by a Committee of Experts, Siracusa/Freiburg, July 1995.

13 The drafting group met on the initiative of a Siracuse meeting in December 1995 in the Max-Planck Institute for Foreign and International Criminal Law in January 1996 and worked along the lines of the "elements" of a general part included in the Alternative Draft, supra note 9 (commentary to Art. 33). Participants were Prof. Eser (Freiburg), Prof. Triffterer (Salzburg), Prof. Koenig (Michigan, USA), Prof. Lagodny (Dresden), Dr. Ambos and Dr. Vest (both Freiburg). A modified version of this draft is to be found in the updated Siracusa-Draft, Siracusa/Freiburg/Chicago, 15 March 1996, Art. 33-1 to 33-18 and 47 to 47-2 (internet: http://www.jura.uni-freiburg.de/mpi). The original version can be obtained from the author. See also Triffterer, Österreichs Verpflichtungen zur Durchsetzung des Völkerstrafrechts, ÖJZ 1996, pp. 321-343, at 326.

14 See the general principles, supra note 8.

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