114C

AMEiaCAN B A R A S S O C I A T I O N
S E C T I O N O F
I N T E R N A T I O N A L L A W A N D P R A C T I C E
R E C O M M E N D A T I O N
B E I T R E S O L V E D , that the American B ar Association recommends that the United States 1
Govemment taice an active role i n the estabUstiment of an intemational criminal court that 2
would be based on the foUowmg principles: 3
A . The consensual jurisdiction of the intemational criminal court should be based 4
on the consent of the state having custody over a person accused of a crime 5
specified i n an intemational convention which 6
(1) adequately defines the crime; 7
(2) has been widely accepted by states representmg all of the worid's major 8
legal systems; and 9
(3) contains the extradite or prosecute obUgation. 10
B . The mandatory jurisdiction of the intemational criminal court should be based 11
on a decision by the Security Council issued pursuant to its powers under 12
Chapter V I I of the United Nations Charter: 13
(1) determming that any person or category of persons who have 14
participated in an activity that the Security Council had determined IS
endangers international peace and security and have been accused of 16
havuig committed a crime which is recognized by the intemational 17
community as a gross violation of a rule of customary intemational law 18
widely accepted by states representing all the world's major systems as 19
giving rise to personal responsibiUty, should be subject to possible 20
prosecution and trial m accordance with the stamte of the court; or 21
114C
(2) transferring to the court for possible prosecution and trial any person 22
who has participated, or is participating, in an activity which the 23
Security Council detemiined end^gers intemational peace and security 24
and who is accused of having committed a crime under general 25
international law or an intemational treaty in force, when a state where 26
the accused person is found re&ses to try or extradite that person. 27
file=i:\...alaire\un.r&r\rec|2
114C
REPORT
This recommendation is the second i n a series of five recommendations which deal with
important issues of international law that are crucial to the maintenance of intemational peace
and security and justice. They have been developed by the Section of Intemational L aw and
Practice, dirough its Working Group on Improving the Effectiveness of the United Nations, as
a conbibution of the American B ar Association to the 50th Anniversary of die United
Nations, i n fulfillment of the American Bar Association's Goal 8 ~ to advance the rule of law
i n the world. This recommendation addresses the issue of the establishment of an
Intemational Ciiminal Court for die punishment of individuals responsible for gross violations
of intemational law.
Since the American Bar Association ( A B A ) considered the first report of the A B A Task
Force on an Intemational Criminal Court (Task Force) and die report of the Intemational L aw
and Practice Section's (Section) Task Force on the International Tribunal to Adjudicate War
Climes Committed in the Former Yugoslavia (War Crimes Task Force), the Intemational L aw
Commission (I L C) of the United Nations has issued a new report, the U. S . Commission on
Improving the Effectiveness of die United Nations (U. S. Commission) has issued its report,
and the United States and other countries are expected to make submissions for the upcoming
session of the I L C . The final report of the A B A Task Force has also presented some
additional comments on the I L C' s report. A i l of these documents cite new and critical issues
which require an adjustment and elaboration of positions previously taken by the A B A .
It is vitally important for the United States to take an active role in the establishment of an
intemational criminal court able to contribute to the maintenance of the rule of law, without
which diere can be no just peace. I f the United States does not take a leading role in the
formation of the new institution, it may evolve in a direction diat departs widely firom
concepts that are fundamental to a system of justice.
For these reasons, die Section strongly beUeves diat any proposal for an intemational criminal
court should he comprehensive i n addressing issues fundamental to its effective operation.
The United States should not support a vague proposal which would leave open for fiiture
action die development of jurisdictional and procedural issues. In particular, sufficientiy
detailed rules of evidence and procedure are fundamental to the integrity of any system of
criminal justice, and are necessary to ensure the rights of the accused and the victim and to
prevent the politicization of the tribunal. The salient aspects of the structure of a tribunal and
its procedures may be subject to comment by the Section i n a fuhire report.
Consensual Jurisdiction
The Section is of the view that the parties to the statute of an intemational criminal court
should have two means of invoking its jurisdiction: consensual and mandatory. In die first
114C
instance, offenders would be voluntarily surrendered by states. A party to the statute of an
intemational criminal court would be entitled to refer the case of an alleged criminal found in
its territoiy to the tribunal instead of trying or extraditing that person, either on its own
initiative, or on request of die state where the crime has been committed or of the state of the
accused person's nationaUty. A n intemational tribunal would, m effect, serve as a third
aitemative to states cunentfy having only the choice to prosecute or extradite intemational
criminals foimd within their country.
The Section does not support the inclusion of a provision that would preclude
reference of a case to an mtemational criminal court when there has been a request by
another state for extradition of an accused. The only aitemative to extradition would be for
the requested country to submit the accused to its prosecutorial authorities. This would
undermine a fundamental purpose of having an intemational criminal court, which is to
maximize possible prosecutorial options i n respect to intemational crimes.
I n this regard, the Section would support the position taken m the commentary to
Article 63 of the I L C' s draft statute as to whether a state party that decided not to surrender
an accused to the court should also be allowed as an aitemative to prosecution to extradite
him to another state for prosecution. A l l owi ng a state party three options ~ prosecution,
extradition to another state, or surrender to the court ~ would seem the approach most
compatible with the view that the court should complenient, rather than compete with,
prosecution before national tiibimals. The Section concurs with the position taken by the
U. S . Commission that the establishment of an intemational criminal court "should be viewed
not as a substitute for but a complement to national criminal systems and other modalities of
bilateral and multilateral cooperation in penal matters."
Under its consensual jurisdiction, reference to an mtemational crimmal court should be
made on a case-by-case basis. A s to whose consent should be required for the court to have
jurisdiction, consent should l>e required only of the state with custody over an accused,
provided that the state of custody would have a basis under the pertinent international
convention for exercisuig jurisdiction. It is recognized that tliis position is inconsistent with
die first report of the A B A Task Force and the I L C s draft stamte, where the consent of the
state or states of which the accused is a national would also have been requhed. However, it
is consistent with the positions taken by the Task Force i n its final report and by the I L C' s
woridng group. '
What the Section now recommends is not different from the status quo today where
the consent of tiie state having custody controls. Under existing conventions, normally the
state of custody is obliged to establish its jurisdiction over the offense so it can subnut an
accused to prosecution i f it does not extradite him to either the territorial state or the state of
'For further discussion, see the Final Report of the American Bar Association Task Force on an Intemational
Criminal Court at 21-26.
114C
nationality. Since neither the state in which the crime occurred, nor the state of nationality,
nor the state of custody requires the consent of any other state to submit an accused to
prosecution before its national courts, such consent should not be required for such states to
submit an accused to an intemational criminal court.
Subject-Matter Jurisdiction
While the Section supports an intemational criminal court with broad subject-matter
jurisdiction, it recognizes that die breaddi of subject-matter jurisdiction may ultimately be
dictated by political developments. Depending upon the circumstances, a more modest and
incremental approach may have a greater likelihood of success. Accordingly, the subject
matter of consensual jurisdiction would initially b& limited to intemational conventions that
are widely accepted by states representing all of the world's major legal systems and that are
subject to an extradite or prosecute obligation. A list of such conventions is contained in
Article 22 of die I L C' s draft statute.
I n temis of which crimes a state is prepared to recognize as within the court's
jurisdiction, an "opting i n" system along the lines set forth in altemative A of Article 23 of
the I L C' s draft statute is preferred. A state party to the court's statute could "by declaration
lodged with the Registrar, at any time accept the jurisdiction over one or more of the crimes
referred to in article 22. " This approach would be the most flexible and the one most
commensurate with the concept that the court would serve as a supplemental forum to
national courts for the prosecution of intemational crimes.
The Section recommends against inclusion of the crime of "aggression," which is not
defined in any intemational convention. The only officially adopted definition of aggression
is that contained i n General Assembly Resolution 3314, adopted in 1974, which though
considered by many as a generally accepted interpretation of the U. N . Charter, is considered
by others as intended only as a political guide and not a suitable definition for purposes of
prosecution. In a similar regard, apartheid is another issue which may have more political
than legal content and raise the risk of politicization of die court. Finally, the Section
recommends against reference to the Code of Crimes Against the Peace and Security of
Mankind in Article 21 of the I L C' s draft statute as a possible addition to the list. Some items
i n that code have engendered strongly negative reactions.
The Section is of the view that dmg-related crimes should be considered for inclusion
in the court's subject-matter jurisdiction. However, drag-related crimes, including the crimes
referred to in the 1988 United Nations Convention against I llicit Traffic in Narcotics and
Psychotropic Substances, do not at present qualify for inclusion in the I L C' s draft statute
because of a lack of adequate definition. I f such crimes are to be included, they should be
more precisely defined i n the court's statute.
114C
In terms of what ciimes should be added to the subject-matter jurisdiction of tiie court,
the Section would encour^^e the addition of torture to Article 22 of the draft statute of the
I L C . Consideration should also be given to crinKs covered by the Convention on the
Physical Protection of Nuclear Material and to crimes agauist U N peaceJceepers and
humanitarian woricers under proposed new treaty law.
Mandatory Jurisdiction
Unlike the U. S . Commission, the Section considers that provision should be made for
a second means of invoking the jurisdiction of the interaadonal criminal court. It would be
mandatory in nature and woidd require a mandate firom the Security Council issued pursuant
to its powers under C h^t er V I I of the United Nations Charter:
a. determming fliat any person or category of persons who have
participated in an activity that the Security Council had determined
endangers international peace and security and have been accused of
havuig committed a crime which is recognized by the intemational
community as a gross violation of a mIe of customary intemational law
widely accepted by states representing all the world's major systems as
giving rise to personal responsibility should be subject to possible
prosecution and trial in accordance with the stamte of the court; or
b. transferring to the court for possible prosecution and trial any person
who is participating i n an activity which the Security Council had
detennined endangers international peace and security and who is
accused of having committed a crime under general international law or
an mtemational treaty i n force, when a state where the accused person
is found reftises to try or extradite that person.
RespectfiiUy submitted.
James H. Carter
Chairman
August 1994
tile=i:\users\inUaw\alaire\iin.r&r\rpt|2
114C
GENERAL INFORMATION FORM
Submitting En t i t y : Se c tio n o f In t e r n a t i o n a l Law and Pr a c t i c e
Submitted By: James H. C a r te r , C h a ir o f the Se c tio n o f
In t e r n a t i o n a l Law and Pr a c t i c e
1. Summary o f Recommendation.
The Recommendation urges th a t th e American Bar Asso c i a t i o n
i n a n t i c i p a t i o n o f the f i f t i e t h a nniv e r sa r y o f th e U nite d
Na tio ns and the Decade o f In t e m a t i o n a l Law adopt a p o l i c y
th a t de a l s with the e sta bl ish me nt o f an In t e r n a t i o n a l
C r imina l Court fo r the pxinishment o f i n di v i du a l s r e sp o nsibl e
fo r gr o ss v i o l a t i o n s o f i n t e r n a t i o n a l law. Th is issue i s
c r u c i a l to the maintenance o f i n t e r n a t i o n a l peace, se c u r i t y
and j u st i c e , and to the fu l fi l l m e n t o f Goal V III o f the ABA
— the advancement o f the r u l e o f law i n the wo r l d.
2. Approvaj by Submitting En t i t y .
Th is Recommendation was approved by the C o unc il o f the
Se c tio n o f Inte r na tio na l Law and Pr a c t i c e a t i t s meeting on
Ap r i l 30, 1994 i n Washington, D.C.
3. Has Th is o r A S i m i l a r Recommendation Been Submitted to the
House o r BP^rd p r e v io usl y ?
No.
4. Wh^t Ex i st i n g Asso c i a t i o n Po l i c i e s Are Re l e v a nt to Th is
Recommendation and How Would Thev Be Affe c t e d bv It s
Adoption?
In 1992, the ABA recommended th a t the U.S. work toward
fi n di n g so l u t i o n s to issue s c o nc e r ning such a c o u r t . No
e x i st i n g p o l i c i e s would be a ffe c t e d by a p p r o v a l o f t h i s
Recommendation.
5. Wh^t urgency Exi st s y h j c h Re quir e s Ac tio n ^ t Th is Meeting o f
the House?
Ap p r o v a l o f t h i s Recommendation and Report by th e House of
De l e ga te s a t t h i s Meeting i s needed i n o r de r to i n fl u e n c e
the di sc u ssi o n which w i l l ta ke p l a c e be ginning e a r l y i n 1995
i n c o nj unc tio n with the f i f t i e t h a nniv e r sa r y o f th e U nite d
Na tio ns.
114C
6. S t a t u s of L e g i s l a t i o n
N ot a p p l i c a b l e .
7 . C os t t o t h e A s s o c i a t i o n
N on e .
8. Disc l o sur e o f Inte y e st
N on e .
9. R e f e r r a l s .
T h i s R e p or t a n d R e c omme n da t i on wa s r e f e r r e d t o a l l ot h e r A BA
S e c t i on s a n d e n t i t i e s a n d t o t h e N e w Y or k S t a t e Ba r
A s s o c i a t i o n a n d t h e M i l wa u k e e Ba r A s s o c i a t i o n .
1 0 . C on t a c t P e r s on .
T h e p r i n c i p l e c on t a c t p e op l e i n t h e S e c t i on of I n t e r n a t i o n a l
L a w a n d P r a c t i c e a r e :
L ou i s B. S oh n , E s q u i r e
G e or g e W a s h i n g t on U n i v e r s i t y -
N a t i on a l L a w C e n t e r
7 2 0 2 0 t h S t r e e t , N.W.
W a s h i n g t on , D.C. 2 0 0 52
P h on e : ( 2 0 2 ) 994- 7 390
F a x : ( 2 0 2 ) 994- 9446
K a t h r y n S. M a c k , E s q u i r e
C a r n e g i e E n dowme n t f o r
I n t e r n a t i o n a l P e a c e
2 40 0 N S t r e e t , N.W.
W a s h i n g t on , D.C. 2 0 0 37
P h on e : ( 2 0 2 ) 862 - 7 980
F a x : ( 2 0 2 ) 862 - 2 61 0
1 1 . C on t a c t P e r s on .
C h a r l e s N . Br owe r , E s q u i r e
W h i t e & C a s e
1 7 7 5 P e n n s y l v a n i a A v e ., N.W.
S u i t e 50 0
W a s h i n g t on , D.C. 2 0 0 0 6
P h on e : ( 2 0 2 ) 87 2 - 0 0 1 3
F a x : ( 2 0 2 ) 87 2 - 0 1 2 0
Ja me s R . S i l k e n a t , E s q u i r e
W i n t h r op , S t i m s on , P u t n a m
& R ob e r t s
O n e Ba t t e r y P a r k P l a z a
N e w Y or k , N Y 10004
P h on e : (212) 858-1322
F a x : (212) 858-1500
114C
Contact Person Regarding Amendments to Th is Recommendation.
No proposed amendments have been r e c e iv e d. The p e o p l e to
c o nta c t c o nc e r ning proposed amendments a r e :
Lo uis B. Sohn, Esquir e
George Washington U n i v e r si t y
Na tio na l Law Center
720 20th Str e e t, N.W.
Washington, D.C. 20052
Phone: (202) 994-7390
Fax: (202) 994-9446
Kathryn S. Mack, Esquir e
C a r ne gie Endowment fo r
In t e r n a t i o n a l Peace
2 40 0 N Str e e t, N.W.
Washington, D.C. 2 0 0 37
Phone: ( 2 0 2 ) 862 - 7 980
Fax: ( 2 0 2 ) 862 - 2 61 0

Sign up to vote on this title
UsefulNot useful