51ST SESSION
OF THE UNITED NATIONS GENERAL ASSEMBLY

AGENDA ITEM 147
ESTABLISHMENT OF AN INTERNATIONAL
CRIMINAL COURT

STATEMENT BY
H. E. AMBASSADOR DR. GYORGY SZENASI
REPRESENTATIVE OF
THE REPUBLIC OF HUNGARY IN THE SIXTH COMMITTEE

NEW YORK
OCTOBER 31, 1996

Mr. Chairman,

As this is the first time I take the floor this year in this Committee, may I use the opportunity to congratulate you and the other members of the Bureau upon your election, and at the same time, offer to you our full support in your dedicated efforts to bring our common endeavors to a successful end. I would also like to pay a special tribute to Mr. Adriaan Bos of the Netherlands for his skillful guidance of the work of the Preparatory Committee. His stewardship has been essential in contributing to the current advanced state of our work which is aimed at the establishment of an International Criminal Court.

Before turning to specific issues, let me first recall that the Hungarian delegation has attached, from the very beginning, a particular importance to the elaboration of the Statute of the ICC, because we consider this endeavor an important contribution to the maintenance of international peace and security. The timeliness of the establishment of the Court has been clearly demonstrated by the war crimes and other grave violations of international humanitarian law which have been committed during the last few years in many parts of the world. Since our delegation has had an ample opportunity to express its views at the two sessions of the Preparatory Committee, I confine myself at this forum to stating our position on some of the points which we consider as essential for the creation of a strong and effective ICC.

Mr. Chairman,

In the view of my delegation, the International Criminal Court should be established by means of a multilateral treaty. We are aware that a number of States have expressed their fear that the Court might never have a universal character if it were established under a treaty. Nevertheless we are convinced that the legitimacy and juridical independence of such a body could only be guaranteed by way of an international treaty. Furthermore, the other available options, that is the amendment of the Charter of the United Nations, a Resolution of the General Assembly, or the Security Council, also have their drawbacks, as has already been pointed out by other delegations. At the same time, we are in full agreement with the view that the Court should be brought into a close relationship with the UN through an agreement, as envisaged in Article 2 of the ILC draft.

Under paragraph 1 of Article 4 of the Draft, the ICC should be a so called semi-permanent body. Since we know very well that this formula reflects a compromise between those who preferred a full-time body and those who favored an ad-hoc one, we are prepared to accept the form of a semi-permanent body. Having said this, let me add that my delegation shares the view of those who believe that the permanent nature of the ICC should be reinforced by the creation, at its very inception, of certain permanent working offices, such as the Presidency, the Registrar and the Office of the Prosecutor, and by leaving open the opportunity to transfer the ICC, at a later stage, to a full time body.

As for the qualification of judges, we believe that there is no need for a rigid distinction between the criteria of criminal trial experience and competence in international law. In order to avoid unnecessary complications and a cumbersome election process the two criteria should be applied flexibly, bearing in mind that criminal experience should be prominent in this respect. This would consequently give rise to the need for refining the relevant provisions of the ILC draft. Further on the issue of the qualification of judges, we support the idea of an age limit. We are also open minded on introducing the requirement of gender balance, although, in our view, this should be weighed against the criteria as presently contained in the ILC draft.

On issues pertaining to the jurisdiction of the ICC, the position of Hungary is that it should be limited to the most serious crimes, that is to the so called core crimes. We are of the view that, in accordance with the principle of nullum crimen sine lege, the statute of the Court should contain a clear and precise definition of the crimes which fall within the jurisdiction of the ICC.

As for the crime of genocide, my delegation agrees with its inclusion in the jurisdiction of the Court. Concerning its definition, we can go along with the emerging consensus on the retention of the definition as contained in Article II of the 1948 Genocide Convention (Convention on the Prevention and punishment of the Crime of Genocide 1948). Although initially we saw some advantage in the suggestion aimed at extending this definition to include social and political groups, we recognize that this question could be addressed in connection with crimes against humanity. On Article III of the Convention, addressing ancillary crimes, our position is flexible, although my delegation's preference is not to include that provision in the definition, but to address those crimes in a general provision.

With regards to serious violations of the laws and customs applicable in armed conflict we concur with the view that this category should also be under the purview of the Court. We are also open to the idea of the new combined title of War Crimes as introduced in Article 20 of the Draft Code of Crimes Against the Peace and Security of Mankind, which was adopted by the International Law Commission at its last session. In this respect, I wish to emphasize once again that, regardless of the title, this category of crimes should encompass not only those under the Hague Conventions, but also the grave breaches as contained in the 1949 Geneva Conventions, as well as, "comparably serious violations" of other relevant conventions that have obtained the status of customary law. We are of the view, that common Article 3 of the 1949 Geneva Conventions and Additional Protocol II, relating to non-international armed conflicts should also fall under this category.

In the view of my delegation, crimes against humanity also meet the criteria for inclusion in the jurisdiction of the Court, as core crimes. The definition of crimes against humanity should also be defined in the Statute of the Court and should be modeled on the definition contained in the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda or in the Draft Code, since those are based on the notion that, under customary international law, crimes against humanity cannot be limited to actions during a time of war, but can be committed in times of peace as well. Consequently, it is our firm conviction that there should be no nexus between crimes against humanity and warfare. At the same time, the widespread and systematic nature of these offenses should be part of the definition, as a criteria distinguishing them from ordinary crimes under national law. Furthermore, the definition should include the list of crimes falling into this category. As for the open-ended or exhaustive nature of the list, a question raised by the reference to "other inhumane acts", we are confident that a solution, which would satisfy both the principle of nullum crimen sine lege and the need to avoid limiting the jurisdiction of the ICC, can be arrived at.

The delegation of Hungary has not yet reached a final position on the inclusion of the crime of aggression into, or its exclusion from, the jurisdiction of the ICC for the following reasons: On the one hand, due to the gravity of the crime and to the well known precedents, offered by the Nuremberg and Tokyo trials, we see much merit in retaining aggression in the list of crimes falling within the jurisdiction of the ICC. At the same time - having followed the discussion on this particular issue - we are under the impression that it will be extremely difficult to find a proper balance between the independence of the Court to establish individual criminal responsibility, and the primary responsibility attributed to the Security Council by the Charter of the United Nations for the maintenance of international peace and security. If such a balance can be found, and a generally acceptable definition can be worked out, this delegation will be more than happy to have aggression listed as a crime under the jurisdiction of the ICC. However, if despite all our efforts, we fail to meet that condition, in order to achieve our main goal, that is the creation of the ICC in the foreseeable future, we might have no other choice than to accept the position of those who argue against the inclusion of aggression in the jurisdiction of the Court.

At this juncture, let me add a further point. Should the General Assembly select from the three options offered by the International Law Commission on the Draft Code of Crimes against the Peace and Security of Mankind, that one which would incorporate it into the statute of an International Criminal Court, very serious consideration should be given to the inclusion of the crimes against United Nations and associated personnel into the category of core crimes.

I cannot but reiterate here the support of my delegation for the idea of establishing a review mechanism which, if accepted, could ensure that the possibility of the addition of further crimes to the Court's jurisdiction could be discussed at a later stage. Although we see the rationale behind the critical remarks which have been voiced concerning the concrete proposal put forward on this issue at the spring session of the Preparatory Committee, in our view, it does not mean that the concept of some kind of a review procedure should be rejected out of hand. We advocate this position since creating such a mechanism would mean that the door to the inclusion of the crime of aggression and possible other serious crimes, among them some of the so called treaty crimes, is not locked for good. Let me recall in this respect that Hungary originally not only welcomed the inclusion of the category of treaty crimes, but also called for the enlargement of the list of treaty based crimes to be considered by the Court. The deliberation on this issue however convinced us that any attempt to add more crimes to the jurisdiction of the ICC at this stage, would result in protracted discussion, and this could ultimately lead to further delay in the establishment of the Court.

Since the position of my delegation is that only core crimes should fall under the jurisdiction of the Court, we are of the view that the proposal aimed at extending the inherent jurisdiction of the ICC to all of the core crimes deserves very serious consideration. I do not intend to dwell on the interpretation of, and relationship between, inherent jurisdiction and the concept of complementarity. However, I cannot but repeat that, in the view of my delegation, inherent jurisdiction is not identical with exclusive jurisdiction and as a consequence it is not inconsistent with the notion of complementarity, sovereignty and state consent. With respect to state consent let me add however that, in our view, the number of states whose consent is needed for the ICC to exercise its jurisdiction should be kept to the minimum. It should be obvious from the foregoing that my delegation is among those who believe that Article 22 of the ILC draft, regulating the acceptance of the jurisdiction of the ICC, in its present form would leave the Court with a very narrow field of competence, and for this reason should be amended.

With respect to the role of the Security Council under Article 23 of the draft, we are in favor of paragraph 1, which enables the Council to refer matters to the Court when acting under Chapter VII of the Charter of the United Nations. To support this position suffice it to refer here to the primary responsibility of the Security Council for the maintenance of international peace and security. On paragraph 2, a final position can only be formulated when a consensus is reached on the question of whether aggression should be included into or excluded from the jurisdiction of the ICC. As for paragraph 3, we are not entirely convinced that in its present form it serves the role envisaged for it. For this reason we would support an effort aimed at reformulating this paragraph.

It flows from my delegation's position of support for the proposal aiming at providing the Court with inherent jurisdiction over hard-core crimes that, in our view, all parties should be entitled to lodge a complaint with the prosecutor. Consequently, Article 25 should be amended accordingly. We are of the view, that the role of the prosecutor, as contained in Article 26 of the draft is too restrictive. Nevertheless, we feel obliged to draw attention to the requirement of harmonizing the proposed extended role of the prosecutor with that of States Parties and the Security Council.

Mr. Chairman,

Although my delegation is well aware of the complexity and difficulty of the issues involved and of the difference between the common and civil law systems' approach on some of these issues, we are of the view that, the compilations of proposals on procedural questions, fair trial and the rights of the accused; on international cooperation and judicial assistance; on the organization, composition and administration of the Court; on general principles of criminal law; and on penalties, all of which have been prepared by the informal groups created by the Preparatory Committee for this purpose, can bridge the gap between the two major legal systems and will serve as a good basis for further work significantly facilitating the reaching of an early consensus in these areas.

Touching on only one concrete issue related to procedure, fair trial and the rights of the accused let me state that in principle, the Hungarian delegation is of the view that the accused should be present during the trial. However, due to the gravity and character of the crimes under its jurisdiction, in the case of the ICC we can accept a limited possibility for trial in absentia, or at least for certain procedures to be carried out, as contained in paragraph 4 of Article 37 of the ILC draft. However, this recourse should be available only when the accused attempts to prevent the Court from exercising its jurisdiction by refusing to be present at the trial as contained in paragraph 2 (c) of Article 37. It means that we envisage a more limited exemption from the general rule than the present draft. It should be further emphasized that even in these limited cases, the rights of the accused and the safeguards for a fair trial should be vigorously respected.

In conclusion, Mr. Chairman, I would like to state my government's position on the organization of future work. Let me make it clear at the very beginning that, in our view, the Preparatory Committee has covered tremendous ground and made considerable progress during its two sessions this year, in preparing the stage for the next step, that is the setting of the date for the diplomatic conference. My delegation holds this view because it is convinced that we need perspective in our work, and that, at this point in time, means setting the date for the conference at this session of the General Assembly. Failing to do so would mean losing the presently existing momentum for the creation of the Court, thereby closing the window of opportunity again for a long period of time. In the light of the high expectation of international public opinion it would mean nothing less than losing our credibility, which in our view would be unacceptable.

At the same time, we are aware that there are still questions to be solved before the conference can commence its work. We consider that the remaining issues can be divided into two categories. We are convinced that, if we really engage in serious negotiations for which we already have a mandate, the first group of issues, often characterized as procedural or technical ones can be addressed during the nine weeks of further work, scheduled to be finished by April 1998, as recommended by the Preparatory Committee. The second set of issues can be defined as substantial ones. These involve high level political decisions and mutual concessions, and can only be finally solved during the conference. Consequently, what we have in mind is not a ceremonial conference but a working one lasting for a number of weeks. In the light of the foregoing, we fully support the recommendation of the Preparatory Committee to hold the conference in 1998, and concur with the view that this date should be set by the resolution adopted at the present session of the General Assembly.