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Summary

Draft Code of Crimes Against the Peace and Security of Mankind (Part II) - including the draft Statute for an international criminal court
last update: 9 July, 2014

(a) Draft Code of Crimes Against the Peace and Security of Mankind (Part II)

The General Assembly, by resolution 36/106 of 10 December 1981 (E, F, S, R, C, A), invited the International Law Commission to resume its work with a view to elaborating the draft Code of Offences against the Peace and Security of Mankind and to examine it with the required priority in order to review it, taking duly into account the results achieved by the process of the progressive development of international law.

Accordingly, at its thirty-fourth session, in 1982, the Commission included the item “Draft Code of Offences against the Peace and Security of Mankind” in its agenda and appointed Doudou Thiam as Special Rapporteur for the subject.



Extracts from
The Work of the International Law Commission, 7th ed., vol. 1

The Commission proceeded with its work on the draft code from its thirty-fifth session, in 1983, to its forty-third session, in 1991, and at its forty-sixth and forty-seventh sessions, in 1994 and 1995, respectively. In connection with its further consideration of the draft code, the Commission had before it the reports of the Special Rapporteur, [1]  comments and observations received from Governments and international organizations [2]  as well as documents prepared by the Secretariat. [3]  

At its thirty-fourth session, in 1982, the Commission established a Working Group chaired by the Special Rapporteur that held a preliminary exchange of views on the requests addressed to the Commission by the General Assembly in its resolution 36/106. On the recommendation of the Working Group, the Commission indicated its intention to proceed during its thirty-fifth session to a general debate in plenary on the basis of a first report to be submitted by the Special Rapporteur. The Commission further indicated that it would submit to the General Assembly, at its thirty-eighth session, the conclusions of that debate.

The General Assembly, in resolution 37/102 of 16 December 1982 (E, F, S, R, C, A), requested the Commission, in conformity with resolution 36/106 of 10 December 1981, to submit to the General Assembly at its thirty-eighth session a preliminary report, inter alia, on the scope and the structure of the draft code.

At its thirty-fifth session, in 1983, the Commission proceeded to a general debate on the basis of the first report of the Special Rapporteur, [4]  which focused on three questions: (1) the scope of the draft; (2) the methodology to be followed; and (3) the implementation of the code. On the question of methodology, the Commission considered it advisable to include an introduction recalling the general principles of criminal law, such as the non-retroactivity of criminal law and the theories of aggravating or mitigating circumstances, complicity, preparation and justified acts. [5]  On the other two questions, the views of the Commission were as follows:

“(a) The International Law Commission is of the opinion that the draft code should cover only the most serious international offences. These offences will be determined by reference to a general criterion and also to the relevant conventions and declarations pertaining to the subject;

“(b) With regard to the subjects of law to which international criminal responsibility can be attributed, the Commission would like to have the views of the General Assembly on this point, because of the political nature of the problem;


“(c) With regard to the implementation of the code:

(i) Since some members consider that a code unaccompanied by penalties and by a competent criminal jurisdiction would be ineffective, the Commission requests the General Assembly to indicate whether the Commission’s mandate extends to the preparation of the statute of a competent international criminal jurisdiction for individuals;

(ii) Moreover, in view of the prevailing opinion within the Commission, which endorses the principle of criminal responsibility in the case of States, the General Assembly should indicate whether such jurisdiction should also be competent with respect to States.”
[6]

The General Assembly, in resolution 38/132 of 19 December 1983 (E, F, S, R, C, A), invited the Commission to continue its work on the elaboration of the draft code of offences against the peace and security of mankind by elaborating, as a first step, an introduction and a list of the offences in conformity with its report on the work of its thirty-fifth session.

At its thirty-sixth session, in 1984, the Commission proceeded to a general debate on the draft code on the basis of the second report [7]  of the Special Rapporteur, which dealt with two questions, namely the offences covered by the 1954 draft and the offences classified since 1954. In its own report to the General Assembly on the work of that session, the Commission expressed its intention to limit the scope ratione personae of the draft code to the criminal responsibility of individuals, without prejudice to subsequent consideration of the possible application to States of the notion of international criminal responsibility, and to begin by drawing up a provisional list of offences while bearing in mind the drafting of an introduction summarizing the general principles of international criminal law relating to offences against the peace and security of mankind. The offences which were mentioned for possible inclusion in the code included, in addition to the offences covered in the 1954 draft, colonialism, apartheid, serious damage to the human environment, economic aggression, the use of atomic weapons and mercenarism. [8]

At its thirty-ninth session, the General Assembly, in resolution 39/80 of 13 December 1984 (E, F, S, R, C, A), requested the Commission to continue its work on the elaboration of the draft code of offences against the peace and security of mankind by elaborating an introduction as well as a list of the offences, taking into account the progress made at the thirty-sixth session of the Commission, as well as the views expressed during the thirty-ninth session of the General Assembly.

The Commission began the first reading of the draft code at its thirty-seventh session, in 1985. At its thirty-eighth session, in 1986, the Commission discussed again the problem of the implementation of the code and announced its intention to examine carefully any guidance that might be furnished on various possible options (system of territoriality, system of personality, universal system and system of international criminal jurisdiction).

At its thirty-ninth session, in 1987, the Commission recommended to the General Assembly that it amend the title of the topic in English so that it would read “Draft Code of Crimes against the Peace and Security of Mankind”, [9]  a recommendation which the General Assembly endorsed in its resolution 42/151 of 7 December 1987 (E, F, S, R, C, A).

At its forty-third session, in 1991, the Commission adopted on first reading the draft Code of Crimes against the Peace and Security of Mankind, which included the following crimes: aggression; threat of aggression; intervention; colonial domination and other forms of alien domination; genocide; apartheid; systematic or mass violations of human rights; exceptionally serious war crimes; recruitment, use, financing and training of mercenaries; international terrorism; illicit traffic in narcotic drugs; and wilful and severe damage to the environment. The Commission decided to defer the questions of applicable penalties and the crimes which could involve an attempt until the second reading of the draft. The Commission noted that the draft Code constituted the first part of the Commission’s work on the topic and that the Commission would continue its work on the question of an international criminal jurisdiction (see below). In accordance with articles 16 and 21 of its Statute, the Commission decided to transmit the draft Code, through the Secretary-General, to Governments for their comments and observations. [10]

The General Assembly, in resolution 46/54 of 9 December 1991 (E, F, S, R, C, A), expressed its appreciation to the Commission for the completion of the provisional draft articles on the draft Code of Crimes against the Peace and Security of Mankind and urged Governments to present in writing their comments and observations on the draft, as requested by the Commission. The request to Governments for their comments and observations on the draft was reiterated by the General Assembly in resolution 47/33 of 25 November 1992 (E, F, S, R, C, A). The General Assembly, in resolution 48/31 of 9 December 1993 (E, F, S, R, C, A), requested the Commission to resume at its forty-sixth session the consideration of the draft Code.

At its forty-sixth session, in 1994, the Commission began the second reading of the draft code, which was completed at its next session, in 1995. The second reading was held on the basis of the twelfth and thirteenth reports of the Special Rapporteur [11]  and in the light of the comments and observations received from Governments. [12]  The twelfth report, considered by the Commission at its forty-sixth session, in 1994, focused only on the general part of the draft dealing with the definition of crimes against the peace and security of mankind, characterization and general principles. The Special Rapporteur also indicated his intention to limit the list of crimes to be considered during the second reading to offences whose characterization as crimes against the peace and security of mankind was hard to challenge. At that session, after considering the report, the Commission decided to refer the draft articles dealt with therein to the Drafting Committee, it being understood that the work on the draft code and on the draft statute for an international criminal court should be coordinated by the Special Rapporteur on the draft code and by the Chairman and members of the Drafting Committee and of the Working Group on a draft statute for an international criminal court (see below).

At its forty-seventh session, in 1995, the Commission considered the thirteenth report of the Special Rapporteur. The Special Rapporteur had omitted from his report 6 of the 12 crimes included on first reading, namely: the threat of aggression; intervention; colonial domination and other forms of alien domination; apartheid; the recruitment, use, financing and training of mercenaries; and wilful and severe damage to the environment, in response to the strong opposition, criticisms or reservations of certain Governments with respect to those crimes. Accordingly, the report focused on the remaining crimes contained in the draft code adopted on first reading, namely: aggression, genocide, systematic or mass violations of human rights, exceptionally serious war crimes, international terrorism and illicit traffic in narcotic drugs. [13]  The Commission decided to refer to the Drafting Committee articles dealing with aggression, genocide, systematic or mass violations of human rights and exceptionally serious war crimes, on the understanding that the Drafting Committee, in formulating those articles, would bear in mind and at its discretion deal with all or part of the draft articles adopted on first reading concerning intervention; colonial domination and other forms of alien domination; apartheid; recruitment, use, financing and training of mercenaries; and international terrorism. The Commission also decided to continue consultations as regards articles dealing with illicit traffic in narcotic drugs, and wilful and severe damage to the environment. With respect to the latter, the Commission decided to establish a Working Group that would meet at the beginning of the forty-eighth session to examine the possibility of covering in the draft code the issue of wilful and severe damage to the environment. [14]

At the forty-eighth session of the Commission, in 1996, the Working Group examined this issue and proposed to the Commission that this crime be considered as a war crime, a crime against humanity or a separate crime against the peace and security of mankind. The Commission decided by a vote to refer to the Drafting Committee only the text prepared by the Working Group for inclusion of wilful and severe damage to the environment as a war crime. [15]

At the same session, the Commission adopted the final text of the draft Code of Crimes against the Peace and Security of Mankind, with commentaries, [16]  consisting of 20 articles divided into two parts: Part One, General Provisions (articles 1-15) and Part Two, Crimes against the Peace and Security of Mankind (articles 16-20). Part One contains provisions relating to the scope and application of the Code (article 1), individual responsibility (article 2), punishment (article 3), responsibility of States (article 4), order of a Government or a superior (article 5), responsibility of the superior (article 6), official position and responsibility (article 7), establishment of jurisdiction (article 8), obligation to extradite or prosecute (article 9), extradition of alleged offenders (article 10), judicial guarantees (article 11), non bis in idem (article 12), non-retroactivity (article 13), defences (article 14), and extenuating circumstances (article 15). Part Two includes the following crimes: aggression (article 16), genocide (article 17), crimes against humanity (article 18), crimes against United Nations and associated personnel (article 19), and war crimes (article 20). The text of the draft Code as adopted in 1996 is reproduced in annex IV, section 3 (b).

The Commission adopted the draft Code with the following understanding:

“with a view to reaching consensus, the Commission has considerably reduced the scope of the Code. On first reading in 1991, the draft Code comprised a list of 12 categories of crimes. Some members have expressed their regrets at the reduced scope of coverage of the Code. The Commission acted in response to the interest of adoption of the Code and of obtaining support by Governments. It is understood that the inclusion of certain crimes in the Code does not affect the status of other crimes under international law, and that the adoption of the Code does not in any way preclude the further development of this important area of law.” [17]

As agreed to upon the adoption of the draft code on first reading, in 1991, the Commission returned to the questions of penalties and attempt during the second reading. With regard to penalties, the Commission decided to include a general provision indicating that the punishment of an individual for a crime against the peace and security of mankind must be commensurate with the character and gravity of the crime (article 3) rather than to provide specific penalties for each crime. With regard to attempt, the Commission decided to address individual criminal responsibility for attempt with respect to all of the crimes except aggression (article 2, paragraph 3(g)).

The Commission considered various forms which the draft Code of Crimes against the Peace and Security of Mankind could take, including an international convention adopted by a plenipotentiary conference or the General Assembly, incorporation of the Code in the statute of an international criminal court, or adoption of the Code as a declaration by the General Assembly. The Commission recommended that the General Assembly select the most appropriate form which would ensure the widest possible acceptance of the draft Code. [18]

The General Assembly, in resolution 51/160 of 16 December 1996 (E, F, S, R, C, A), expressed its appreciation to the Commission for the completion of the draft Code; drew the attention of the States participating in the Preparatory Committee on the Establishment of an International Criminal Court to the relevance of the draft Code to their work; and requested the Secretary-General to invite Governments to submit, before the end of the fifty-third session of the General Assembly, their written comments and observations on action which might be taken in relation to the draft Code.

(b)     Draft Statute for an International Criminal Court

At its thirty-fifth session, in 1983, the Commission had before it the first report of the Special Rapporteur for the draft code which focused, inter alia, on the implementation of the code. [19]  Following a general debate on the basis of this report, the Commission requested the General Assembly to indicate whether the Commission’s mandate with respect to the draft code extended to the preparation of the statute of a competent international criminal jurisdiction for individuals since some members considered that a code unaccompanied by penalties and by a competent criminal jurisdiction would be ineffective. [20]

At its thirty-eighth session, in 1986, the Commission had before it the fourth report of the Special Rapporteur which addressed, inter alia, the implementation of the code. [21]  After considering this report, the Commission indicated that it would examine carefully any guidance that might be furnished on the various options for the implementation of the code set out in its report and reminded the General Assembly of the conclusion concerning the ineffectiveness of a code unaccompanied by penalties and a competent jurisdiction contained in the report on the work of its thirty-fifth session, in 1983. [22]

From 1986 to 1989, the General Assembly requested the Secretary-General to seek the views of Members States regarding the Commission’s conclusions concerning the implementation of the draft code. [23]

At its thirty-ninth session, in 1987, the Commission had before it the fifth report of the Special Rapporteur [24]  which included draft article 4 on the aut dedere aut punire principle which was intended to fill the existing gap with regard to jurisdiction. The Commission considered issues relating to an international criminal court in the context of its discussion of draft article 4. The Commission referred the draft article to the Drafting Committee which was unable to formulate a text for article 4 due to lack of time.

At its fortieth session, in 1988, the Commission provisionally adopted draft article 4 (Obligation to try or extradite) which relied on national courts to enforce the code without ruling out the consideration of an international criminal court at a later stage. [25]

In 1989, the General Assembly considered a new agenda item entitled “International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities: establishment of an international criminal court with jurisdiction over such crimes”. [26]  In resolution 44/39 of 4 December 1989 (E, F, S, R, C, A), the Assembly requested the Commission, when considering at its forty-second session the draft code of crimes against the peace and security of mankind, to address the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code, including persons engaged in illicit trafficking in narcotic drugs across national frontiers, and to devote particular attention to that question in its report on that session.

At its forty-second session, in 1990, the Commission had before it the eighth report of the Special Rapporteur on the draft code, part three of which dealt with the statute of an international criminal court. [27]  The Commission considered extensively the question of the possible establishment of an international criminal jurisdiction for two main reasons: first, the question concerning the draft code’s implementation and, in particular, the possible creation of an international criminal jurisdiction to enforce its provisions had always been foremost in the Commission’s concerns regarding the topic, and, second, the specific request addressed to the Commission by the General Assembly in resolution 44/39 of 4 December 1989. After considering the report, the Commission decided to establish a Working Group to prepare a response by the Commission to the request by the Assembly. [28]

By its resolutions 45/41 of 28 November 1990 (E, F, S, R, C, A) and 46/54 of 9 December 1991 (E, F, S, R, C, A), the General Assembly invited the Commission, within the framework of the draft code, to consider further and analyse the issues raised in the report concerning the question of an international criminal jurisdiction.

From 1991 to 1993, the Special Rapporteur for the draft code submitted three reports which addressed issues relating to the question of an international criminal jurisdiction. [29]

At its forty-fourth session, in 1992, the Commission decided to set up a Working Group to consider further and analyse the main issues relating to the question of an international criminal jurisdiction. The Working Group, at the same session, drew up a report to the Commission, which contained, inter alia, a set of specific recommendations on a number of issues related to the possible establishment of an international criminal jurisdiction. [30]  The structure suggested in the Working Group’s report consisted, in essence, of an international criminal court established by a statute in the form of a multilateral treaty agreed to by States parties. The proposed court would, in the first phase of its operations, at least, exercise jurisdiction only over private persons, as distinct from States. Its jurisdiction should be limited to crimes of an international character defined in specified international treaties in force, including the crimes defined in the draft code of crimes against the peace and security of mankind upon its adoption and entry into force, but not limited thereto. A State should be able to become a party to the statute of the court without thereby becoming a party to the code. The court would be a facility for States parties to its statute (and also, on defined terms, other States) which could be called into operation when and as soon as required and which, in the first phase of its operation, at least, should not have compulsory jurisdiction and would not be a standing full-time body. Furthermore, whatever the precise structure of the court or other mechanisms, it must guarantee due process, independence and impartiality in its procedures. [31]

The Commission noted, at the same session, that a structure along the lines suggested in the Working Group’s report could be a workable system but that further work on the issue required a renewed mandate from the General Assembly to draft a statute, and that it was now for the General Assembly to decide whether the Commission should undertake the project for an international criminal jurisdiction, and on what basis. [32]

The General Assembly, in resolution 47/33 of 25 November 1992 (E, F, S, R, C, A), took note with appreciation of the chapter of the report of the Commission on the work of its forty-fourth session, entitled “Draft Code of Crimes against the Peace and Security of Mankind”, which was devoted to the question of the possible establishment of an international criminal jurisdiction; invited States to submit to the Secretary-General, if possible before the forty-fifth session of the Commission, written comments on the report of the Working Group on the question of an international criminal jurisdiction; and requested the Commission to continue its work on the question by undertaking the project for the elaboration of a draft statute for an international criminal court as a matter of priority as from its next session, beginning with an examination of the issues identified in the report of the Working Group and in the debate in the Sixth Committee with a view to drafting a statute on the basis of the report of the Working Group, taking into account the views expressed during the debate in the Sixth Committee as well as any written comments received from States, and to submit a progress report to the Assembly at its forty-eighth session.

At its forty-fifth session, in 1993, the Commission decided to reconvene the Working Group it had established at the previous session to continue its work, as requested by the General Assembly in resolution 47/33 as referred to above. [33]  The Working Group prepared a preliminary draft statute for an international criminal court and commentaries thereto. [34]  Though the Commission was not able to examine the draft articles in detail at the forty-fifth session and to proceed with their adoption, it felt that, in principle, the proposed draft articles provided a basis for examination by the General Assembly at its forty-eighth session. The Commission therefore decided to annex the report of the Working Group containing the draft statute to its report to the General Assembly. The Commission stated that it would welcome comments by the General Assembly and Member States on the specific questions referred to in the commentaries to the various articles, as well as on the draft articles as a whole. It furthermore decided that the draft articles should be transmitted, through the Secretary-General, to Governments for their comments. [35]

The General Assembly, in resolution 48/31 of 9 December 1993 (E, F, S, R, C, A), took note with appreciation of chapter II of the report of the Commission on the work of its forty-fifth session, entitled “Draft Code of Crimes against the Peace and Security of Mankind”, which was devoted to the question of a draft statute for an international criminal court; invited States to submit to the Secretary-General, as requested by the Commission, written comments on the draft articles proposed by the Working Group on a draft statute for an international criminal court; and requested the Commission to continue its work as a matter of priority on the question with a view to elaborating a draft statute, if possible at its forty-sixth session, in 1994, taking into account the views expressed during the debate in the Sixth Committee as well as any written comments received from States.

At its forty-sixth session, in 1994, the Commission decided to reestablish the Working Group on a draft statute for an international criminal court. The Working Group re-examined the preliminary draft statute for an international criminal court annexed to the Commission’s report at the preceding session, [36]  and prepared the draft statute, [37]  taking into account, inter alia, the comments by Governments on the report of the Working Group submitted to the Commission at its previous session, [38]  and the views expressed during the debate in the Sixth Committee of the General Assembly at its forty-eighth session on the report of the International Law Commission on the work of its forty-fifth session. [39]

The draft statute consisted of 60 articles which were divided into eight main parts: Part One on Establishment of the Court; Part Two on Composition and Administration of the Court; Part Three on Jurisdiction of the Court; Part Four on Investigation and Prosecution; Part Five on the Trial; Part Six on Appeal and Review; Part Seven on International Cooperation and Judicial Assistance; and Part Eight on Enforcement. In drafting the statute, the Working Group did not purport to adjust itself to any specific criminal legal system but, rather, to amalgamate into a coherent whole the most appropriate elements for the goals envisaged, having regard to existing treaties, earlier proposals for an international court or tribunals and relevant provisions in national criminal justice systems within the different legal traditions. Careful note was also taken of the various provisions regulating the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. It was also noted that the Working Group conceived the statute for an international criminal court as an attachment to a future international convention on the matter and drafted the statute’s provisions accordingly. [40]

The Commission adopted the draft Statute for an International Criminal Court, together with its commentaries, [41]  prepared by the Working Group, and decided, in accordance with article 23 of its Statute, to recommend to the General Assembly that it convene an international conference of plenipotentiaries to study the draft statute and to conclude a convention on the establishment of an international criminal court. [42]  

The General Assembly, in resolution 49/53 of 9 December 1994 (E, F, S, R, C, A), welcomed the report of the Commission on the work of its forty-sixth session, including the recommendations contained therein, and decided to establish an ad hoc committee open to all States Members of the United Nations or members of specialized agencies to review the major substantive and administrative issues arising out of the draft statute prepared by the Commission and, in the light of that review, to consider arrangements for the convening of an international conference of plenipotentiaries. It also decided that the Ad Hoc Committee should submit its report to the General Assembly at the beginning of its fiftieth session in 1995. By the same resolution, the General Assembly invited States to submit to the Secretary-General written comments on the draft statute and requested the Secretary-General to invite such comments from relevant international organs. It further requested the Secretary-General to submit to the Ad Hoc Committee a preliminary report with provisional estimates of the staffing, structure and costs of the establishment and operation of an international criminal court. The General Assembly decided to include in the provisional agenda of its fiftieth session an item entitled “Establishment of an international criminal court”, in order to study the report of the Ad Hoc Committee and the written comments submitted by States and to decide on the convening of the proposed international conference of plenipotentiaries, including its timing and duration.

The Ad Hoc Committee on the Establishment of an International Criminal Court met from 3 to 13 April and from 14 to 25 August 1995, during which time the Committee reviewed the issues arising out of the draft statute prepared by the Commission and considered arrangements for the convening of an international conference. [43]

The General Assembly, in resolution 50/46 of 11 December 1995 (E, F, S, R, C, A), decided to establish a preparatory committee to discuss further the major substantive and administrative issues arising out of the draft statute prepared by the Commission and, taking into account the different views expressed during the meetings, to draft texts with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries.

The Preparatory Committee on the Establishment of an International Criminal Court met from 25 March to 12 April and from 12 to 30 August 1996, during which time the Committee discussed further the issues arising out of the draft statute and began preparing a widely acceptable consolidated text of a convention for an international criminal court. [44]

The General Assembly, in resolution 51/207 of 17 December 1996, decided to hold a diplomatic conference of plenipotentiaries in 1998 with a view to finalizing and adopting a convention on the establishment of an international criminal court. The Assembly also decided that the Preparatory Committee would meet in 1997 and 1998 in order to complete the drafting of the text for submission to the Conference.

The Preparatory Committee met from 11 to 21 February, from 4 to 15 August and from 1 to 12 December 1997, during which time the Committee continued to prepare a widely acceptable consolidated text of a convention for an international criminal court. [45]

The General Assembly, in resolution 52/160 of 15 December 1997 (E, F, S, R, C, A), decided to hold the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, open to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency, at Rome from 15 June to 17 July 1998. In the same resolution, the General Assembly requested the Secretary-General to invite to the Conference the following organizations to participate as observers: organizations and other entities that had received a standing invitation from the Assembly pursuant to its relevant resolutions to participate as observers in its sessions and work, as well as interested regional intergovernmental organizations and other interested international bodies, including the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 and the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994. In addition, the Secretary-General was requested to invite to the Conference to participate in accordance with the resolution and the rules of procedure to be adopted by the Conference non-governmental organizations accredited by the Preparatory Committee with due regard to the provisions of part VII of Economic and Social Council resolution 1996/31 of 25 July 1996, and in particular to the relevance of their activities to the work of the Conference. The Assembly further requested the Preparatory Committee to continue its work in accordance with General Assembly resolution 51/207 and, at the end of its sessions, to transmit to the Conference the text of a draft convention on the establishment of an international criminal court prepared in accordance with its mandate.

The Preparatory Committee met from 16 March to 3 April 1998, during which time the Committee completed the preparation of the draft Statute of an International Criminal Court, which was transmitted to the Conference. [46]

The Conference met in Rome from 15 June to 17 July 1998. [47]  It was attended by 160 States as well as by the observers of the Palestine Liberation Organization, sixteen intergovernmental organizations and other entities, five specialized agencies and related organizations, and nine United Nations programmes and bodies. Furthermore, representatives of 135 non-governmental organizations participated in the work of the Conference in accordance with General Assembly resolution 52/160 of 15 December 1997.

The Conference had before it the draft Statute which was assigned to the Committee of the Whole for its consideration. The Conference entrusted the Drafting Committee, without reopening substantive discussion on any matter, with coordinating and refining the drafting of all texts referred to it without altering their substance, formulating drafts and giving advice on drafting as requested by the Conference or by the Committee of the Whole and reporting to the Conference or to the Committee of the Whole as appropriate.

On 17 July 1998, the Conference adopted the Rome Statute of the International Criminal Court [48]  which consists of a preamble and 128 articles contained in thirteen parts: Part 1. Establishment of the Court; Part 2. Jurisdiction, Admissibility and Applicable Law; Part 3. General Principles of Criminal Law; Part 4. Composition and Administration of the Court; Part 5. Investigation and Prosecution; Part. 6. The Trial; Part 7. Penalties; Part 8. Appeal and Revision; Part 9. International Cooperation and Judicial Assistance; Part 10. Enforcement; Part 11. Assembly of States Parties; Part 12. Financing; and Part 13. Final Clauses.

The Statute, which is subject to ratification, acceptance or approval, was opened for signature on 17 July 1998, in accordance with its provisions, until 17 October 1998 at the Ministry of Foreign Affairs of Italy and, subsequently, until 31 December 2000, at United Nations Headquarters in New York. It remains open for accession by all States. The Rome Statute entered into force on 1 July 2002. As of 19 November 2003, ninety-two States had ratified the Rome Statute.

The Final Act of the Conference, [49]  of which six resolutions adopted by the Conference form an integral part, was signed on 17 July 1998. In one of the resolutions, resolution E, the Conference recommended that a review conference pursuant to article 123 of the Rome Statute consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court. By another resolution, resolution F, the Conference established the Preparatory Commission for the International Criminal Court consisting of representatives of States-signatories of the Final Act and other States which had been invited to participate in the Conference. The Preparatory Commission was entrusted with the preparation of a number of proposals for the practical arrangements for the establishment and coming into operation of the Court, including the draft texts of the rules of procedure and evidence and of the elements of crimes, as well as proposals for a provision on aggression (see sub-section (d) below).

In successive resolutions adopted from 1998 to 2001, the General Assembly requested the Secretary-General to convene and reconvene the Preparatory Commission to carry out its mandate set forth in Resolution F and, in that connection, to discuss ways to enhance the effectiveness and acceptance of the Court. The General Assembly also requested the Secretary-General to invite, as observers to the Preparatory Commission, representatives of organizations and other entities that have received a standing invitation from the General Assembly, pursuant to its relevant resolutions, [50]  to participate in the capacity of observers in its sessions and work, and also to invite as observers to the Preparatory Commission representatives of interested regional intergovernmental organizations and other interested international bodies, including the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 and the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994. The General Assembly further noted that non-governmental organizations could participate in the work of the Preparatory Commission in accordance with the rules of procedure of the Commission. [51]

From 1999 to 2002, the Preparatory Commission held ten sessions during which it prepared a number of proposals relating to the establishment and operation of the Court, including the draft Rules of Procedure and Evidence and the draft Elements of Crimes, which were transmitted to the Assembly of States Parties to the Rome Statute of the International Criminal Court. [52]

The General Assembly, in resolution 56/85 of 12 December 2001 (E, F, S, R, C, A), requested the Secretary-General to make the preparations necessary to convene, in accordance with article 112, paragraph 1, of the Rome Statute, [53]  the Assembly of States Parties upon the entry into force of the Rome Statute. The General Assembly noted that the United Nations and the Secretary-General may participate, without the right to vote, in the work of the Assembly of States Parties. The General Assembly requested the Secretary-General to invite, as observers to the meeting of the Assembly of States Parties, representatives of intergovernmental organizations and other entities that have received a standing invitation from the General Assembly, pursuant to its relevant resolutions, [54]  to participate in the capacity of observers in its sessions and work, and also to invite as observers to the Assembly representatives of interested regional intergovernmental organizations and other international bodies invited to the Rome Conference or accredited to the Preparatory Commission for the International Criminal Court. The General Assembly also noted that non-governmental organizations invited to the Rome Conference, registered to the Preparatory Commission for the International Criminal Court or having consultative status with the Economic and Social Council of the United Nations whose activities are relevant to the activities of the Court may participate in the work of the Assembly of States Parties in accordance with agreed rules.

At its first session, in 2002, the Assembly of States Parties considered the report of the Preparatory Commission and adopted a number of instruments based on the drafts prepared by the Preparatory Commission, including the Rules of Procedure and Evidence and the Elements of Crimes. [55]



[1]  See Yearbook of the International Law Commission, 1983, vol. II (Part One), document A/CN.4/364; ibid., 1984, vol. II (Part One), document A/CN.4/377; ibid., 1985, vol. II (Part One), document A/CN.4/387; ibid., 1986, vol. II (Part One), document A/CN.4/398; ibid., 1987, vol. II (Part One), document A/CN.4/404; ibid., 1988, vol. II (Part One), document A/CN.4/411; ibid., 1989, vol. II (Part One), document A/CN.4/419 and Add.l; ibid., 1990, vol. II (Part One), document A/CN.4/430 and Add.l; ibid., 1991, vol. II (Part One), document A/CN.4/435 and Add.l; ibid., 1992, vol. II (Part One), document A/CN.4/442; ibid., 1993, vol. II (Part One), document A/CN.4/449 (the tenth and eleventh reports of the Special Rapporteur published in the 1992 and 1993 Yearbooks, respectively, were devoted entirely to the question of the possible establishment of an international criminal jurisdiction); and ibid., 1994, vol. II (Part One), document A/CN.4/460; as well as document A/CN.4/466. (see Analytical Guide for individual documents)

[2]  See Yearbook of the International Law Commission, 1982, vol. II (Part One), document A/CN.4/358 and Add.1-4; ibid., 1983, vol. II (Part One), document A/CN.4/369 and Add.1 and 2; ibid., 1985, vol. II (Part One), document A/CN.4/392 and Add.1 and 2; ibid., 1987, vol. II (Part One), document A/CN.4/407 and Add.1 and 2; ibid., 1990, vol. II (Part One), document A/CN.4/429 and Add.1-4; and ibid., 1993, vol. II (Part One), document A/CN.4/448 and Add.l. (see Analytical Guide for individual documents)

[3]  Documents A/CN.4/365 and A/CN.4/368 and Add.l. (see Analytical Guide for individual documents)

[11]  See Yearbook of the International Law Commission, 1994, vol. II (Part One), document A/CN.4/460; as well as document A/CN.4/466. (see Analytical Guide)

[23]  See General Assembly resolutions 41/75 of 3 December 1986 (E, F, S, R, C, A), 42/151 of 7 December 1987 (E, F, S, R, C, A), 43/164 of 9 December 1988 (E, F, S, R, C, A) and 44/32 of 4 December 1989 (E, F, S, R, C, A).

[25]  See Yearbook of the International Law Commission, 1988, vol. II (Part Two), paras. 213 and 280 (commentary to article 4).

[26]  See Official Records of the General Assembly, Forty-fourth Session, Annexes, vol. II, agenda item 152, document A/44/195.

[28]  For the report of the Working Group, see document A/CN.4/L.454. (see Analytical Guide)

[29]  See Yearbook of the International Law Commission, 1991, vol. II (Part One), document A/CN.4/435 and Add.1; ibid., 1992, vol. II (Part One), document A/CN.4/442; and ibid., 1993, vol. II (Part One), document A/CN.4/449. (see Analytical Guide)

[33]  The Commission had before it comments of Governments on the report of the Working Group established at the previous session submitted pursuant to General Assembly resolution 47/33 (see Yearbook of the International Law Commission, 1993, vol. II (Part One), document A/CN.4/452 and Add.1-3. (see Analytical Guide))

[34]  For the revised report of the Working Group, see document A/CN.4/L.490 and Add.1 reproduced in Yearbook of the International Law Commission, 1993, vol. II (Part Two), annex. (see Analytical Guide)

[37]  For the final revised report of the Working Group, see document A/CN.4/L.491/Rev.2 and Add.1-3. (see Analytical Guide)

[39]  Document A/CN.4/457, section B. (see Analytical Guide)

[43]  See Official Records of the General Assembly, Fiftieth session, Supplement No. 22 (A/50/22).

[44]  See Official Records of the General Assembly, Fifty-first session, Supplement No. 22 (A/51/22), vols. I and II.

[45]  Documents A/AC.249/1997/L.5, A/AC.249/1997/L.8/Rev.1 and A/AC.249/1997/L.9/Rev.1.

[46]  See Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June-17 July 1998, vol. III, Reports and other documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/2/Add.1.

[47]  For the Final Act of the Conference, see Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June-17 July 1998, vol. I, Final documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/10.

[48]  See Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June-17 July 1998, vol. I, Final documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/9.

[49]  See Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June-17 July 1998, vol. I, Final documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/10.

[50]  Resolutions 253 (III), 477 (V), 2011 (XX), 3208 (XXIX), 3237 (XXIX), 3369 (XXX), 31/3, 33/18, 35/2, 35/3, 36/4, 42/10, 43/6, 44/6, 45/6, 46/8, 47/4, 48/2, 48/3, 48/4, 48/5, 48/237, 48/265, 49/1, 49/2, 50/2, 51/1, 51/6, 51/204, 52/6, 53/5, 53/6, 53/216, 54/5, 54/10, 54/195, 55/160 and 55/161.

[51]  See General Assembly resolutions 53/105 of 8 December 1998, 54/105 of 9 December 1999, 55/155 of 12 December 2000 and 56/85 of 12 December 2001.

[52]  See Proceedings of the Preparatory Commission at its first, second and third sessions (16-26 February, 26 July-13 August and 29 November-17 December 1999) (document PCNICC/1999/L.5/Rev.1 and Add.1 and 2); Proceedings of the Preparatory Commission at its fourth session (13-31 March 2000) (document PCNICC/2000/L.1/Rev.1 and Add.1 and Add.2); Proceedings of the Preparatory Commission at its fifth session (12-30 June 2000) (document PCNICC/2000/L.3/Rev.1); Proceedings of the Preparatory Commission at its sixth session (27 November-8 December 2000) (document PCNICC/2000/L.4/Rev.1 and Add.1-3); Proceedings of the Preparatory Commission at its seventh session (26 February-9 March 2001) (document PCNICC/2001/L.1/ Rev.1 and Add.1-3); Proceedings of the Preparatory Commission at its eighth session (24 September-5 October 2001) (document PCNICC/ 2001/L.3/Rev.1 and Add.1); Proceedings of the Preparatory Commission at its ninth session (8-19 April 2002) (document PCNICC/2002/L.1/Rev.1 and Add.1 and 2); and Proceedings of the Preparatory Commission at its tenth session (1-12 July 2002) (document PCNICC/2002/L.4/Rev.1); as well as Report of the Preparatory Commission for the International Criminal Court (contained in documents PCNICC/2000/1 and Add.1 and 2; PCNICC/2001/1 and Add.1-4; PCNICC/2002/1 and Add.1 and 2; and PCNICC/2002/2 and Add.1-3). See also a Guide to the Report of the Preparatory Commission prepared by the Secretariat (document PCNICC/2002/3 and Corr.1).

[53]  As mentioned above, the Rome Statute entered into force on 1 July 2002.

[54]  Resolutions 253 (III), 477 (V), 2011 (XX), 3208 (XXIX), 3237 (XXIX), 3369 (XXX), 31/3, 33/18, 35/2, 35/3, 36/4, 42/10, 43/6, 44/6, 45/6, 46/8, 47/4, 48/2, 48/3, 48/4, 48/5, 48/237, 48/265, 49/1, 49/2, 50/2, 51/1, 51/6, 51/204, 52/6, 53/5, 53/6, 53/216, 54/5, 54/10, 54/195, 55/160 and 55/161.

[55]  See Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3-10 September 2002 (ICC-ASP/1/3, United Nations publication, Sales No. 03.V.2), paras. 16-23.



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