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The Establishment of an International Criminal Jurisdiction: The Second Phase**

Published online by Cambridge University Press:  20 April 2017

Yuen-Li Liang
Yuen-Li Liang*
Affiliation:
Division for the Development and Codification of International Law, United Nations Secretariat
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Abstract

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Type
Notes on Legal Questions Concerning the United Nations
Information
American Journal of International Law , Volume 47 , Issue 4 , October 1953 , pp. 638 - 657
Copyright
Copyright © American Society of International Law 1953

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Footnotes

*

This note was prepared in collaboration with Mr. Hsuan-Tsui Liu, Legal Department, United Nations Secretariat. Mr. Liu acted as the secretary of the 1953 Committee on International Criminal Jurisdiction.

**

For the first phase of the question, see a note, “The Establishment of an International Criminal Jurisdiction: The First Phase,” in this Journal, Vol. 46 (1952), pp. 73–88. See also Quincy Wright, “Proposal for an International Criminal Court,” ibid., pp. 60–72; and George A. Finch, ibid., pp. 89–98.

References

1 General Assembly, 7th Sess., Official Becords, Supp. No. 11 (U. N. Doc. A/2136). The text of the Draft Statute was printed in full in this Journal, Supp., Vol. 46 (1952), pp. 1–11.

2 The comments of eleven governments were reproduced in General Assembly, 7th Sess., Official Records, Annexes, Agenda Item 52, Doc. A/2186, and Add. 1. Together with the remarks of representatives on the Sixth Committee, these comments were compiled under various rubrics in a paper by the Secretariat, U. N. Doc. A/AC.65/1. Sub-sequently, the Government of Belgium submitted its comments and these were made available to the committee in U. N. Doc. A/AC.65/3.

3 The arguments advanced in the Sixth Committee for and against the establishment of the court were summed up in the report of the Sixth Committee, General Assembly, 7th Sess., Official Eecords, Annexes, Agenda Item 52, Doc. A/2275, pars. 9–17.

4 Resolution 687 (VII) of Dec. 5, 1952, adopted at the 400th plenary meeting. For text, see General Assembly, 7th Sess., Official Becords, Supp. No. 10 (U. N. Doc. A/2361), pp. 62–63. As appointed at the 407th plenary meeting by the President of the General Assembly in accordance with the terms of the resolution, the committee consisted of one representative of each of the following seventeen states: Argentina, Australia, Belgium, China, Denmark, Egypt, France, Israel, Netherlands, Pakistan, Panama, Peru, Philippines, United Kingdom, United States, Venezuela, and Yugoslavia. Pakistan, however, did not send a representative.

5 U. N. Doe. A/AC.65/SE.1, p. 5. Unless otherwise indicated, all sources cited herein are United Nations documents.

6 Doc. A/AC.65/L.13.

7 See Eeport of 1951 Committee, pars. 22–23.

8 Doc. A/AC.65/SE.5, p. 5.

9 This article provides: “The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court Bhall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.”

10 Doc. A/AC.65/SB.3, p. 10.

11 Working Paper submitted by Panama, Doc. A/AC.65/L.3. See also his remarks in A/AC.65/SB.6, p. 8.

12 Doc. A/AC.65/SR.5, p. 9.

13 These included the representatives of Venezuela, Doc. A/AC.65/8E.2, p. 6; the United States, Docs. A/AC.65/SR.3, p. 11, and A/AC.65/SE.4, p. 10; France, Doc. A/AC.65/SE.4, p. 4; United Kingdom, ibid., p. 5; Netherlands, ibid., p. 9; Israel, Docs. A/AC.65/SE.5, p. 5, and A/AC.65/SE.3, p. 9; Tugoslavia, Doc. A/AC.65/SE.5, p. 8; China, Doc. A/AC.65/SE.6, p. 9.

14 Arts. 108 and 109 of the Charter.

15 Doc. A/AC.65/8E.4, p. 4. The representative of Yugoslavia expressed a similar view, Doc. A/AC.65/SE.5, p. 8.

16 See remarks of the representatives of Venezuela, Doe. A/AC.65/SR.2, p. 6; Israel, Doe. A/AC.65/SR.3, p. 9.

17 Docs. A/AC.65/8E.4, pp. 7–9 and A/AC.65/SR.5, pp. 4–5. See also report of the Committee, A/AC.65/L.13, pars. 38–40 and 42. The representative of The Netherlands was Rapporteur of the committee and, as such, was responsible for the drafting of the report. He appeared to be alone in advocating the pure resolution method.

18 Doc. A/AC.65/SR.4, p. 6.

19 Docs. A/AC.65/SR.2, p. 6; A/AC.65/SR.4, p. 13; ibid., p. 4; A/AC.65/SR.5, p. 8.

20 Doc. A/AC.65/SE.3, pp. 6–9.

21 The remarks of the Netherlands representative were: “… maintenance of peace should therefore be the paramount consideration, even if it meant that international crimes in some specific cases would not be prosecuted.” Doc. A/AC.65/SE.2, p. 9. At a later meeting, he said: “… excessively rigid enforcement of such [international criminal] jurisdiction could be a danger to peace.” Doc. A/AC.65/SE.4, p. 8.

22 Doc. A/AC.65/L.2.

23 Docs. A/AC.65/SR.2, pp. 12–13, A/AC.65/SR.3, pp. 3–5. The representative of the United States had indeed previously reiterated the position, taken at the seventh session of the General Assembly, that “the United States delegation approached the subject of an international criminal court with an open mind, while willing and pleased to co-operate in exploring all aspects of such a possible institution, without committing its Government in relation to future action, and with the proviso that the United States would not favour any proposal giving the court any authority which would impair, or tend to impair, the rights of individuals under the United States Constitution.” Doc. A/AC.65/SR.2, p. 12.

24 Doc. A/AC.65/SE.2, p. 13.

25 Doc. A/AC.65/SR.5, p. 10.

26 Doc. A/AC.65/SR.4, p. 10.

27 Doc. A/AC.65/SE.5, p. 12.

28 Ibid., pp. 10–11.

29 Doc. A/AC.65/SB.4, p. 6.

30 Doc. A/AC.65/SE.3, p. 10.

31 Doc. A/AC.65/SE.5, p. 4.

32 Doc. A/AC.65/SE.2, p. 3.

33 Doc. A/AC.65/SE.3, p. 10.

34 Doc. A/AC.65/SE.6, p. 15.

35 Doc. A/AC.65/SE.4, p. 7.

36 Doc. A/AC.65/SE.7, p. 8.

37 Doc. A/AC.65/SE.3, p. 10.

38 Working Paper submitted by Israel, Doc. A/AC.65/L.4, Rev. 1.

39 Doc. A/AC.65/SE.5, p. 4.

40 Doc. A/AC.65/SB.6, p. 13.

41 Doc. A/AC.65/SE.7, pp. 10–11.

42 Doc. A/AC.65/SR.21, p. 21. The vote was 9 in favor, 3 against, with one abstention.

43 Doc. A/AC.65/SE.22, p. 11. The vote was 6 in favor, one against, with 8 abstentions.

44 Ibid. The vote was 5 in favor, 4 against, with 6 abstentions.

45 Doc. A/AC.65/SB.16, p. 5.

46 Ibid., p. 6.

47 Ibid., p. 9.

48 Doc. A/AC.65/L.7.

49 Docs. A/AC.65/SB.11, p. 7, and A/AC.65/SE.17, p. 12.

50 Doc. A/AC.65/SB.11, p. 7.

51 Doc. A/AC.65/SB.16, p. 12.

52 Doc. A/AC.65/8E.17, p. 3.

53 Ibid., p. 4.

54 Ibid., pp. 4, 5.

55 Doe. A/AC.65/8E.17, p. 9. The text submitted by the Drafting Committee maybe found in Doc. A/AC.6/L.7, Art. 26, par. 2.

56 Doc. A/AC.65/SR.18, pp. 9–11. See especially the remarks of the representative of Israel and the Chairman.

57 For discussions on the article, see Docs. A/AC.65/SR.11, pp. 15–17, A/AC.65/SE.12, pp. 3–11 and A/AC.65/SB.18, pp. 4–8.

58 Doc. A/AC.65/L.7, Art. 26, par. 3. See also remarks of the representative of The Netherlands in Doc. A/AC.65/SB.16, p. 13, for an explanation of the texts.

59 Doc. A/AC.65/SE.17, p. 10.

60 Ibid.

61 Doc. A/AC.65/8K.16, p. 4.

62 Doe. A/AC.65/SB.17, p. 11.

63 Ibid., p. 9.

64 Doc. A/AC.65/SE.19, p. 13.

65 Doc. A/AC.65/8E.18, p. 13; see also comments of French Government on the 1951 draft statute, reproduced in Doc. A/AC.65/1, pp. 24–25.

66 Doc. A/AC.65/SE.18, p. 14.

67 Ibid.

68 Ibid.

69 Ibid., p. 15.

70 Doc. A/AC.65/8B.19, p. 7.

71 Ibid.

72 Ibid., p. 5.

73 Ibid., p. 6.

74 Ibid., p. 8.

75 Ibid.

76 Ibid., p. 9.

77 See subsection B below.

78 Doe. A/AC.65/SE.19, pp. 20–21.

79 Ibid. This provision is the same as in the 1951 draft statute.

80 Doc. A/AC.65/SE.22, pp. 3–5.

81 Docs. A/AC.65/SK.9, pp. 13–16; A/AC.65/SR.10, pp. 3–8. See Eeport of the 1953 Committee, Doe. A/AC.65/L.13, par. 69. The amendments submitted by the United States are contained in Doc. A/AC.65/L.5.

82 Doc. A/AC.65/SB.13, p. 12.

83 Doc. A/AC.65/L.6.

84 Docs. A/AC.65/8E.14, pp. 11–21; A/AC.65/SB.19, p. 22.

85 Doc. A/AC.65/8E.14, pp. 3, 4.

86 Ibid., pp. 3–4, 6–7, and 8–9.

87 Ibid., pp. 5–6.

88 Ibid., p. 9.

89 Doc. A/AC.65/SB.15, p. 13.

90 Ibid., p. 14.

91 Doc. A/AC.65/L.8.

92 Doc. A/AC.65/SE.19, p. 18.

93 Ibid., p. 17.

94 Doc. A/AC.65/L.8.

95 Doc. A/AC.65/8E.19, p. 19.

96 Doc. A/AC.65/SB.15, pp. 4, 5, 6–7.

97 Ibid., p. 6.

98 The representatives of Peru and France, ibid., p. 5; Venezuela and Yugoslavia, ibid., p. 6.

99 Ibid., p. 7. The vote was 4 in favor, none against, with 10 abstentions.

100 Doc. A/AC.65/SB.19, pp. 23, 24, 25.

101 Ibid., p. 25.

102 Doc. A/AC.65/SE.20, p. 4.

103 Ibid., p. 6.

104 Ibid.

105 Ibid., p. 7; Doc. A/AC.65/L.5, Art. 54, par. 1.

106 Docs. A/AC.65/SB.20, p. 13; A/AC.65/SR.22, p. 7.

107 Docs. A/AC.65/SR.20, pp. 7, 8, 13; A/AC.65/SR.22, p. 7.

108 Docs. A/AC.65/SR.20, pp. 14–15; A/AC.65/L.5, Art. 54, par. 2.

109 Doc. A/AC.65/SE.20, pp. 14–15.

110 Ibid., p. 16.

111 Ibid., remarks of Chairman.