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p Along with the generally recognised methods of prosecution for the commission of international terrorist acts—within the framework of rrational jurisdiction and governed by domestic legislation as well as the conventions concluded to this effect at an international level, there have been many suggestions as to prosecution and punishment 250 for the commission of such terrorist acts in an Intel national Ciiminal Court.

p In appears important to review the various drafts for the establishment of an International Criminal Court drawn up with a view to prosecution and punishment for the commission of acts of terrorism within the meaning of international law.

p As stated earlier, along with the Convention for the Ptevention and Punishment of Terrorism, the League of Nations drafted, in 1937, a Convention for the Establishment of an International Criminal Court.  [250•1  Noteworthy in that Convention are matters of procedure, universality and correlation with the basic provisions of the Convention for the Prevention and Punishment of Terrorism.

p Structurally, the Convention consists of a preamble and 56 Articles. All Articles can be classified as constitutional, and procedural.

p Art. 1 establishes an International Criminal Court for the trial of persons accused of offences dealt with in the Convention for the Prevention and Punishment of Terrorism   [250•2 

p Art. 2 says that in the cases referred to in Arts. 2, 3, 9 and 10 of the Convention for the Prevention and Punishment of Terrorism, each High Contracting Party shall be entitled instead of prosecuting before his own courts, to commit the accused for trial to the International Criminal Court.

p Consequently, this section of Art. 2 of the Convention establishes the optional procedure for a case to be heard 251 in the Court (hereinafter, the Court will stand for the International Criminal Court in this paragraph for the sake 01 brevity); the second important point of Art. 2 is that a High Contracting Party shall be entitled, in cases where he is able to grant extradition in accordance with Art. 8 of the Convention for the Prevention and Punishment of Terrorism, to commit the accused for trial to the Couit if the State demanding extradition is also a party to the present Convention. In practical terms, this means that the Slate having established its jurisdiction over the offendei, may choose one of the three possible situations: 

p 1) hearing the case in accordance witli its own legislation; 

p 2) granting extradition; 

p 3) committing the offender to the Court for trial. In such a case, it is of interest to note the principle whereby the Convention elects the law of the Court.

p Art. 21 emphasises that substantive criminal law to be applied by the Court shall be that which is the least severe. In determining what that law is, the Court shall take into consideration the law of the territory on which the offence was committed and the law of the country which committed the accused to it for trial (emphasis added).

p One can see from Art. 21 that there can be conflict between the provisions of the law of the territory in which the offence was committed and the provisions of the law of the country which committed the accused to the Court for trial, and therefore, although the principle of the least severe penalty being applied is established, there is no definite solution to the question of which law will be applied by the Court, since it has none of its own, which is one of the serious shortcomings of the Convention designed 252 either to unify the appropriate provisions or formulate one to specify the legal provision.

p Under Art. 24, the President of the Court shall notify the State against which the offence was directed, the State on whose territory the offence was committed and the State of which the accused is a national about the decision of a High Contracting Party to commit an accused person for trial to the Court after the President has been informed by that Party about such a decision.

p Art. 25 formulates the rules to govern the document committing an accused person to the Court for trial. This document shall, first of all, contain a statement of the principal charges brought against that person and, second, the allegations on which they are based, and shall name the agent by whom the committing State will be represented.

p Art. 25 lays it down that the State which committed the accused person to the Court for trial shall conduct the prosecution unless the State against which the offence was directed or, failing that State, the State on whose territory the offence was committed, expresses a wish to prosecute. Consequently, this Article establishes an advantage, from the standpoint of pressing the accusation, for the State against which the offence was committed. This principle has enough reason to be applied but it is not followed in other provisions of the Convention, as shown earlier.

p In case the right of accusation has not been used and the States having this right have shown no wish to exercise it, the Court shall not proceed further with the case and shall order the accused to be discharged (Art. 28)

p Under Art. 31, the State on the territory of which the Court is sitting shall place at the Court’s disposal a 253 suitable place of internment and the necessary staff of warders for the custody of the accused.

p Arts. 39, 40, 41 deal with the execution of the sentences of the Court, notably, paragraph 3 of Art. 39 provides for the States par ties to the Convention to be bound to take all the measures provided for by their own laws so as to enforce the Court rulings with regard to objects or property belonging to convicted persons situated in the territory of these States, and, besides, these provisions shall also apply, in virtue of paragraph 4 of Art. 39 in cases of pecuniary penalties or costs of proceedings imposed.

p Art. 40, the most important one, lays it down that sentences involving loss of liberty shall be executed by a High Contracting Party chosen with his consent by the Court. Such consent may not be refused by the State which committed the convicted person to the Court for trial, and if it has expressed the wish to do so, the sentence shall always be executed by this State.

p If sentence of death has been pronounced, the State designated by the Court to execute the sentence shall be entitled to substitute the most severe penalty for it, as provided by its national law which involves loss of liberty (Art. 41).

p The wording of this Article allows the presumption that a case may be heard in line with one law, while the sentence will be executed under the provisions of another law, which means stultifying, in large measure, the provisions of the Convention for the Prevention and Punishment of Terrorism designed to assure inescapable punishment for the offences set forth in the appropriate Articles of this Convention.

p In our view, the matter should in this case be settled 254 by electing the ilaw of the country against which the offence was directed; and executing the sentence in line with the standards of the same system of law which, on the one hand, would ensure the consistency of prosecution, and, on the other, would prompt the nations which have no provisions for the control of offences of this kind in their legislation so far as to take more radical action.

p The last Article, noteworthy from the standpoint of general theory, is Art. 42 granting the right of pardon in the country which has to execute the sentence on the understanding, however, that that country shall first consult the President of the Court.

p This provision also reduces the possibility of attaining the aims set by the Convention for the Prevention and Punishment of Terrorism, since:

p 1) the President of the Court may not influence the will of the State introducing an amnesty because of his status;

p 2) the very granting of an amnesty for cases of this category does much to stultify the principle of inescapable punishment, considering, in particular, that the Convention does not specify the State that is to carry out the sentence. This idea by no means disproves the validity of the provisions of the Convention on legal guarantees offered to the accused: defence, the right of rehearing, study of the material of the proceeding, etc.

p So the international community has undertaken an attempt, if unsuccessful, at creating a legal machinery of prosecution and punishment for the commission of international terrorist acts. This has been an interesting experience because the problem of creating such a machinery is still on the agenda and, although there are various points of view prevalent among scholars and various positions of 255 various nations, this experience should be used in devising the modes of approach to the present solution of the issue. It should likewise be noted that this issue is part of a larger problem, that of the evolution and development of international criminal law.

p The issue of creating international criminal jurisdiction was debated at the UN in connection with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which stated that there must be “such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction".  [255•1 

p The Fifth Session of the General Assembly adopted Resolution 489 which set out the decision to create a Committee on International Criminal Jurisdiction (the Geneva Committee). The Seventh Session of the General Assembly had a report and draft statute of an International Criminal Court brought before it by the Committee,  [255•2  however, the Seventh Session did not take any decision on the substance of the matter, but created a new committee which had the same task before it (Seventeen-member Committee). It submitted its report with a revised draft statute of an International Criminal Court to the Ninth Session of the General Assembly.

p Both committees have done a large amount of work towards drafting the statute of the Court and their reports and drafts are of certain interest, although the draft statute has been neither recommended to, nor accepted by any State.

256

p A series of problems arise in connection with the creation of international criminal jurisdiction. The competence of the Court is one of the most important of these. In the drafts, the matter is dealt with in the opening Articles headlined “Purpose of the Court”, while in the third chapters, the issues of competence are regulated in detail. Art. 1 of the Geneva Draft Statute reads: “There is established an International Criminal Court to try persons accused of crimes under international law as may be provided in conventions or special agreements among States parties to the present Statute."  [256•1  Art. 1 of the Draft Statute presented by the Seventeen-member Committee says that “There is established an International Criminal Court to try natural persons accused of crimes generally recognised under international law."  [256•2  The Geneva Committee’s Report has specified that “the determination of these broad categories would not establish any jurisdiction".

p The Seventeen-member Committee has emphasised that Art. 1 does not confer any jurisdiction on the Court but specifies its principal objective and imposes, thereby, general restrictions beyond which the Court may not operate, nor the States may confer any jurisdiction on it.

p The Articles of Chapter III, “Competence of the Court”, are very important because they are, first and foremost, basic to the very possibility of the Court violating national sovereignty or ruling out such a possibility.

p Paragraph 1 of Art. 26—“Attribution of Jurisdiction" says that jurisdiction of the Court is not to be presumed. 257 The Court by convention will not have any jurisdiction at all unless the State confers jurisdiction on it through an appropriate expression of will. This is further evidence of the need to draw up substantive international criminal law and that precisely because and in the light of the creation of international criminal jurisdiction.

p The Geneva draft indicated that general jurisdiction is conferred only by convention, while the attribution of jurisdiction by special agreement or by unilateral declaration was allowed only post jactum. This difference was removed from the draft of the Seventeen-member Committee. Paragraph 2 of Art. 26 lays it down that “a State may confer jurisdiction upon the Court by convention, by special agreement or by unilateral declaration".

p This implied that this particular point referred only to future conventions, special agreements and declarations, i.e., such documents as would be adopted for the express purpose of creating international criminal jurisdiction. That means indicating the ground the Court was to act upon and precluding the possibility of arbitrary legal action because of the unclarity and conflicting nature of the sources of law.

p The jurisdiction of the Court was optional. In attributing jurisdiction to the Court, the State did not commit itself to referring any particular cases to the Court. It is entitled to do so but may prefer to take action either in its own national courts under its own laws, or in special international courts. Unless a different procedure is envisaged in an appropriate act, the only obligation arising from the attribution of jurisdiction to the Court is the passive obligation to allow proceedings to be instituted in that Court against appropriate persons.

258

p No person shall be tried by the Court unless jurisdiction has been conferred upon it by the State or States in which the crime is alleged to have been committed (Art. 27). A State may withdraw its conferment of jurisdiction. Such withdrawal shall take effect one year after the delivery of notice to that effect to the Secretary-General of the United Nations (Art. 28).

p Yet another important issue is about who may have access to the Court. The Geneva draft statute stipulated that proceedings might be instituted by the UN General Assembly, by any organisation of States so authorised by the General Assembly and by the States parties to the Statute. The Seventeen-member Draft contained two alternatives. Alternative A: proceedings may be instituted by any State which has conferred jurisdiction upon the Court over such offences.

p Alternative B stipulated, apart from the above-mentioned provision, that in the interest of the maintenance of peace, a United Nations organ to be designated by the United Nations may stop the presentation or prosecution of a particular case before the Court (Art. 29).

p The second alternative appears to have a greater advantage. Yet one cannot agree to a special organ being set up. It is the Security Council that can alone be such an organ as could stop the presentation or prosecution of a particular case before the Court.

p The conclusion one can draw from a review of Chapters I and III of the draft statute of the International Criminal Court is that the most important problems connected with the creation of the Court—the competence of the Court, attribution of jurisdiction, recognition of cognizance, the law of the Court, access to the Court—have been 259 essentially resolved in the right way, in our view, as they are based on the generally recognised principles and standards of international law such, for instance, as the respect of national sovereignty. Along with that, a number of provisions arc subject to further elaboration to be worked up ( assistance of States to the Court, designation of punishment, execution of sentences, etc.).

p The drafts contained a fairly circumstantial account of the matter of legal procedure: the rights of the accused, the rights of the court, etc. (Arts. 35-52).

p One of the important issues arising from the establishment of an International Criminal Court are about the way the Court is to be set up. The Seventeen-member Committee discussed four methods by which an International Criminal Court might be established: A. Establishment of the Court by amendment of the UN Charter; B. Establishment of the Court by multilateral convention; C. Establishment of the Court by a General Assembly resolution, and D. Establishment of the Court by a General Assembly resolution to be followed by conventions.

p Establishment of the Court by an amendment of the UN Charter can be brought about through setting up a criminal chamber under the auspices of the International Court of Justice or by setting up an International Criminal Court as a new major organ.

p Most of the Committee members reacted sceptically to the possibility of the Court being established by any of these methods in the foreseeable future, considering, however, that the establishment of the Court by a multilateral convention would be the best and most practicable procedure for some time yet.

p The Committee suggested the following procedure: with 260 the preliminary draft statute of the International Criminal Court drawn up, it would be expedient to recognise, by a General Assembly resolution, the desirability of instituting such a court, and call a conference of plenipotentiary representatives of States to finalise the drafting of the statute of the Court and the formulation of other acts imposing obligations upon States connected with the competence of the Court and its proper functioning.

p Those who were in favour of an International Criminal Court being established by a General Assembly resolution maintained that such a court could be brought into being at once and without any amendment of the UN Charter. They invoked Art. 22 of the Charter authorising the General Assembly to establish any such subsidiary organs as it found necessary to assist it in performing its functions. Obviously, that although the General Assembly can, indeed, establish such subsidiary organs, there is no reason for its competence to be interpreted to mean that the General Assembly has the right to establish an International Criminal Court. The General Assembly may adopt resolutions with recommendations for it to be created. These recommendations can be adopted as a draft convention containing the obligations of States regarding the creation, organisation and functioning of the Court. However, only the ratification of such a document by States would permit such a Court to be established.

p The United States called for the Court to be established by a General Assembly resolution to be followed by conventions. To use this method would mean that the General Assembly would have to adopt a resolution proposing the Statute of the International Criminal Court. That resolution would, however, have to provide that the 261 Court would not be considered established until a specified number of States had conferred jurisdiction upon it by convention, special agreement or unilateral declaration.

p The method that, in our view, must be recognised as the most acceptable one out of the four methods mentioned is that of establishing the Court by an international multilateral convention, and that is the one the Seventeen-member Committee has finally decided on. Preliminary discussion of the issue of creating international criminal jurisdiction by the General Assembly is indispensable in all cases because that would bring out the position of States with regard to such a Court and attribution of jurisdiction upon it and would, besides, make clear the number of States agreeable to attend the conference called to this end. The nations which voted for the relevant General Assembly resolution may be expected to attend subsequently the conference to be held to draft the Convention. The accession of a sufficiently large number of nations to the Statute is an indispensable condition for international criminal jurisdiction to be established.

p One of the most important issues arising from the problem of international criminal jurisdiction is that of the substantive law to be applied by the Court. A report by the Seven teen-member Committee pointed out: “Some members felt that at the present time it was still clear that the substantive law to be applied by the Court was not sufficiently mature to make the creation of an international criminal jurisdiction practicable. Others were of the opinion that since ad hoc tribunals had tried and sentenced thousands of criminals on the basis of that law, an international criminal court could well be established to apply it, 262 and that the lack of precision of that law was a further argument for entrusting its application, not to ad hoc courts established for each occasion, but rather to a permanent court set up in advance which would guarantee a more universal application."  [262•1 

p However, the lack of precision of substantive law might provide an excuse for intervention in the internal affairs of States. Therefore, to work out the provisions of that law is a matter of principle.

p It should be noted that General Assembly, in a Resolution of November 21, 1947, entrusted the formulation of the principles of international law recognised in the Charter of the Nuremberg Tribunal and in the judgement of the Tribunal to the International Law Commission, and directed it to “formulate the principles of international law recognised in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in sub-paragraph (a) above".  [262•2 

p The representative of the USSR said at the time that the Soviet delegation considered important the drafting of a code of offences against the peace and security of mankind.

p The Report of the International Law Commission to the Fifth Session of the UN General Assembly in 1950 contained a formulation of the Nuremberg principles. In its Resolution of December 12, 1950, the General Assembly 263 asked the governments of the UN member states to submit their observations regarding this formulation and requested the International Law Commission “in preparing the draft code of offences against the peace and security of mankind, to take account of the observations made on this formulation by delegations during the Fifth Session of the General Assembly and of any observations which may be made by governments".  [263•1 

p Taking into account all the observations made by delegations as well as those contained in written comments by the governments of 14 nations submitted to, and considered at its meetings, the Commission drafted a code of offences against the peace and security of mankind, which was submitted to the UN General Assembly for consideration. The issue of the draft code was included in the preliminary agenda of the Sixth Session of the General Assembly but, by Assembly decision, its consideration was postponed, and the Commission was asked to go ahead with drafting the code, taking into account the proposals received from various nations.

p The draft code that was submitted laid emphasis on criminal acts connected, in one way or another, with terrorism, notably, with preparing aggression. It is worth mentioning in this context paragraph 4 of Art. 2 which was enlarged by the Commission in its final draft code of 1954 compared with that of 1951. Instead of the brief formulation: “The incursion into the territory of a State from the territory of another State by armed bands acting for a 264 political purpose”, the Commission enlarged the proposition listing a wide range of offences involving “armed bands”. These included provisions regarding the organisation, encouragement, toleration and support of the organisation of armed bands and their operations, as well as several provisions specifying possible cases of armed bands using the territory of States on which they are set up and from which they operate.

p This extended interpretation, undoubtedly, does not only provide a clearer definition of one of the gravest international offences, but allows the responsibility of States for them to be established with greater guarantee.

p Paragraph 5 of Art. 2 of the draft code refers to “the undertaking or encouragement by the authorities of a State of activities calculated to foment civil strife in another State, or the toleration by the authorities of a State of organized activities" for the same purpose. This provision coincides with that contained in Resolution 380 (V) of November 17, 1950, which said that “fomenting civil strife in the interest of a foreign Power" constitutes aggression. The draft also contains a special reference to the 1937 International Convention on the Suppression of Terrorism which, undoubtedly, offered an enlarged interpretation of paragraph 6 of Art. 2 of the draft code of offences against the peace and security of mankind, which has no list of acts treated as terrorist.

p The importance of including a provision on terrorism in the draft code was stressed by the representative of the USSR who, speaking in the Political Committee of the Sixth Session of the General Assembly with reference to the American Mutual Security Act of October 10, 1951, noted the 265 significance of the thorough drafting of the code and, in particular, of paragraph 6 of Art. 2.  [265•1 

p Suffice it to read to US Act to see the obvious purpose it had been produced for. It provided, notably, for the special appropriations to the amount of 100 million dollars for financing “any selected persons who are residing in or escapees from the Soviet Union, Poland, Czechoslovakia, Hungary, Romania, Bulgaria, Albania .. . either to form such persons into elements of the military forces supporting the North Atlantic Treaty Organization (NATO) or for other purposes".  [265•2 

p That Act did not only clearly contradict, but flagrantly violated fundamental standards of international law, including the 1937 Convention which unequivocally declared similar action to be an international crime. It was for that particular reason that the US delegation launched so active a campaign to forestall the discussion and adoption of the draft code which contained an imperative ban on terrorist activities.

p The draft of the Seventeen-member Committee was examined at the Ninth Session of the General Assembly which, however, failed to take any decision on the merits of the issue. Under Resolutions 897 and 898, consideration of the question of international criminal jurisdiction was deferred until a definition of aggression has been formulated.

p The Twelfth Session of the General Assembly once more put off the question of international criminal jurisdiction for the same reasons (Resolution 1181).

p In 1974, as the draft definition of aggression was brought 266 before the UN General Assembly, the UN Secretary-General proposed resuming consideration of the draft code of offences against the peace and security of mankind, as well as the issue of international criminal jurisdiction.

p In 1977, the report of the International Law Commission suggested that the draft code of 1954 be reconsidered. In 1980, seven nations called for that item to be included in the General Assembly agenda under the title of “Draft Code of Offences Against the Peace and Security of Mankind”. Erik Suy, UN legal adviser, justly pointed out that out of the legal documents to be regarded as connected with the Draft Code, one should mention the International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966; the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of November 26, 1968; the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, of December 14, 1973; Definition of Aggression; Declaration on the Granting of Independence to Colonial Countries and Peoples; Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations, and, let us add, the International Convention against the Taking of Hostages.

p Obviously, these documents have to be taken into account in drafting the code and in bringing its provisions up to the present-day level of cooperation of States in the control of international crimes. It is just as obvious that the records of the discussion of that question in the Sixth Committee of the Thirty-Third Session of the General Assembly in 1978 and of the discussion of the same question in the Sixth 267 Committee in 1980 provided important supporting evidence.

p Another piece of supporting evidence when drawing up an international legal document essential to all States would be the replies received from governments and international organisations to the inquiry from the UN Secretary-General.

p As the debate in the Sixth Committee has brought out, most of the replies underlined the need for the code to include such offences as unlawful action against the safety of civil aviation, offences against internationally protected persons, terrorism; non-applicability of statutory limitations to such crimes; suppression of the activities of individuals as well as groups and organisations presenting a danger to peace and contradicting international law.

p As the representative of Zaire said, the Nuremberg Trial had produced a new legal conception, the conception of criminal responsibility of individuals having committed, on behalf or as an agent of a State, acts which are offences against humanity. Besides, a principle of indirect criminal responsibility has arisen from the decision on indirect prosecution for the misdeeds of the States on behalf of which such individuals acted. The fact that a State may, if indirectly, be brought to book within the framework of international criminal jurisdiction is an unprecedented one and it has considerably extended the area of application of international public law.

p This approach is of fundamental importance for the suppression of terrorist acts committed by state officials.

p The wave of terrorist acts, aircraft hijacking and acts of violence against persons enjoying a special status under international law have once more attracted legal attention to the issue of setting up an International Criminal Court. In particular, these questions were discussed at two 268 conferences on international criminal law held at Racine, Wisconsin, USA, in 1971-72, and in Bellagio, Italy, in 1972 under the auspices of the International Foundation for the Establishment of an International Criminal Court. They have produced the following documents: the Convention on International Crimes and Statute for an International Criminal Court.

p While positively evaluating the attempt at producing the fullest possible list of offences which the authors hold to fall within the Convention as international offences as well as loyalty to the principles of the Nuremberg Tribunal —no absolution from responsibility for the commission of international crimes while performing official duties (Art. 4), refusal, from the standpoint of defence, to take into account the fact that, while committing an international crime, the accused was executing an order or acted in compliance with national legislation (Art. 5), one should, nevertheless, point out the following shortcomings of these documents:

p 1) mixing up the crimes of an international character (piracy and slavery and customs akin to them; hijacking; international acts of terrorism; unlawful actions against the safety of civil aviation; smuggling of kidnapped persons abroad; international drug traffic; environmental pollution, and acts of violence against internationally protected persons), with international crimes (offences against peace; war crimes; crimes against humanity; genocide and apartheid) ;

p 2) incomplete definition of the cor pa delicti of the offences subject to control at an international level, as the following actions do not fall within the Convention: counterfeiting; damage to underwater cables; fabrication of false 269 documents, ammunition and arms to supply persons who have committed the above-mentioned acts; membership in an organisation concerned with committing offences falling within the Convention;

p 3) repetition of the procedural shortcoming of the 1937 League of Nations Convention on the Establishment of an International Criminal Court, since Art. 6 (paragraph 4) says that a party to the Convention shall either prosecute the alleged offender, or extradite him, or commit him for trial to an International Criminal Court. This amounts to confusing the formula of aut dedere out judicare—the formula of conventionary cooperation—with the necessity of prosecution for the commission of international crimes by the International Criminal Court.

p The draft Statute for an International Criminal Court consists of 50 articles. While giving a general appraisal of this document, one should point out its positive and negative aspects.

p The draft Statute for an International Criminal Court is certainly of great interest for the study of the problem of international criminal jurisdiction, as it:

p a) has taken into account the previous efforts to establish an International Criminal Court; 

p b) has elaborated the technical issues of the selection, functioning, dismissal and replacement of judges; 

p c) recognises the necessity of selecting judges so as to represent major forms of civilisation and fundamental legal systems of the world (Art. 6); 

p d) Art. 16 provides for the fallowing additional bodies of the Court: procurator’s office, defence, prosecution, investigation commission, pardon and parole collegium; 

p e) has preserved the right of the States to establish special 270 courts by two or more States to prosecute for the commission of offences over which each of the States has the right to exercise its jurisdiction in accordance with the general standards of international law (Art. 49); 

p f) has worked out propositions concerning the rights and duties of all the parties to the trial as well as of the bodies involved in it (Arts. 28, 29, 30, 31, 34, 46, 47).

p The list of international offences which fall within the jurisdiction of the International Court does not create a clear picture of the scope of the Court’s activities.

p The Third International Conference on International Penal Law was held under the auspices of the Foundation at Dacca (Bangladesh) late in December 1974.

p Besides, representatives of the Foundation have sponsored seminars in Abidjan (Ivory Coast), Baku (USSR), Ludwigsburg (West Germany), Brussels (Belgium) and Beverly Hills (USA). The drafts of the documents elaborated there are an attempt at reflecting the basic world legal systems.

p The Fourth Conference of the Foundation for the Establishment of an International Criminal Court met at San Juan (Puerto Rico) in January 1976. The draft worked out at that conference contained some new provisions compared with the previous ones. In particular, Art. 1 establishes responsibility for the commission of offences enumerated in Art. 2 not only of natural persons but also of corporations, associations, and other commercial, industrial and financial organisations. It should be considered positive that the conference included into the list of offences falling within the Convention not only the international legal offences codified by the conventions in force but also the offences formulated in a number of UN General Assembly 271 resolutions. In particular, paragraph 3 of Art. 2 contains the following formulation: 

p Acts falling within the scope of criminal sanctions have been identified in the following UN General Assembly resolutions: 

p a) Resolution on the Formulation of the Nuremberg Principles of 1950.

p b) Resolution on Respect for Human Rights in Armed Conflicts.

p c) Resolution on the Legal Status of Combatants against Colonial and Racist Regimes, 1973.

p d) Resolution on the Definition of Aggression, 1974.

p An important point is the application of the functional principle in granting protection to persons kidnapped and smuggled across the national border (government or public activity).

p A basically new thing is the inclusion in the draft convention of the cor pa delicti of the offences against the economy of a State, establishment of responsibility for external intervention in the affairs of a State with a view to establishing control or undermining its economy, for affecting or heavily damaging the economy of a State through a boycott, a blockade or embargo, as well as for bribery or other forms of corruption eroding the probity of national leadership.

p Besides, there is a provision for responsibility for abuse of human and natural resources of a State. These conventions are obviously antimonopolistic. The insertion of such points indicates further progress on the way towards a more democratic approach to the problem of the establishment of an International Criminal Court. Under the draft convention, the nations are obliged to take necessary steps, in 272 accordance with their national legal systems, to fulfil theii obligations arising from their membership in the conventions. Compared with the previous drafts, this one provides for responsibility for action directed, by and large, against the sovereignty of a State, its political and economic system, and its culture.

p The draft establishes responsibility for a breach of economic sanctions adopted by the Security Council and—which is particularly important—establishes responsibility for actions obstructing the exercise of the right to self-determination of nations under colonial or apartheid rule.

p In May 26-31, 1977, an international conference of experts on international criminal law and jurisdiction and major violations of international law was held in Boston (USA). It was attended by representatives of 30 countries. The object of the conference was to work out provisional mechanism of investigation and possible prosecution for the commission of such dangerous offences as blowing up civil airliners, assassinations and other inhuman acts falling within the scope of international law.

p The conference discussed the draft code and statute of the Court proposed by the International Law Commission and the Commission of International Criminal Law of the International Foundation for the Establishment of an International Criminal Court. The most important task was that of working out the mechanism that could easily be used, given the wish of the parties concerned, and which could, besides, assure an impartial settlement of disputes arising in the course of adjudication of cases.

p As compared with the draft documents drawn up by the preceding conferences of the Foundation, the draft of this conference contained several new elements, notably, 273 the offences falling within the draft Convention, included the use of mercenaries against national liberation movements in battle for freedom and independence from the yoke of colonialism and foreign domination, as well as service as mercenaries against national liberation movements.

p It should be noted that this draft Convention has been better elaborated and structurally more perfect than the previous Foundation documents of this kind. The draft also reflects the recent shift towards a more democratic development of international law.

p One document of interest for this study is the draft International Criminal Code  [273•1  prepared by a well-known lawyer, Cherif Bassiouni, Secretary-General of the International Association of Penal Law; Dean, International Institute of Higher Studies in Criminal Sciences. The draft was discussed at the International Institute of Higher Studies in Criminal Sciences at Siracusa from December 1977 till May 1979. In July 1979, the draft was committed to the UN. The structure of the code provides for its alternative application: its first version may be used by the International Criminal Court, and the second one, as a code of international offences set forth in appropriate conventions imposing obligations on the Contracting States and put into force through national systems of criminal law.

p The first version presupposes the existence of an International Criminal Court and an appropriate setup for the administration of justice indispensable to any system of criminal law. For this purpose, the draft code 274 incorporates a “General Part”. The second version drops the “ General Part”, having a “Special Part" as its central piece which specifies the range and corpa delicti of international offences. Both the first and second version necessitate a “Special Part" and procedural mechanism for the enforcement of international criminal law which, in the first case, is included in the “General Part" and, in the second, in the ”Enforcement Part”. The Draft Code contains a fourth section called “General Treaty Provisions”, proceeding from the assumption that both versions under consideration will take on the form of a multilateral convention under any circumstances. In drawing up the “General Part”, the author of the code based his work on a unitary integrated structure, striving to link the conceptions of common and civil law and also take into account the conceptions and the approach of socialist law to the problem of international criminal law to the extent they have found reflection in contractual practice and customs of international law. Such an approach to drafting the “General Part" of the code was prompted by a desire to set up a universal International Criminal Court.

p The draft code divides international offences into four main groups:

p Category (I) covers acts regarded as international offences under the existing international conventions: aggression; war crimes; unlawful use of weapons; genocide; crimes against humanity; apartheid; slavery and related crimes; torture (as a war crime); unlawful medical experimentation (as a war crime); piracy; crimes relating to international air communication; threat and use of force against internationally protected persons; taking of civilian hostages; unlawful use of the mails; drug offences; falsification and 275 counterfeiting; theft of national and archaeological treasures (in time of war); interference with underwater cables; international traffic in obsene publications.

p Category (II) includes international offences which in the opinion of the author of the draft rode require the conclusion of international conventions within the UN framework. These comprise the use of torture.

p Category (III) comprises the delicts the prohibition of which is the object of certain international conventions; however, these offences are not regarded as international: the use of torture (as a human rights violation); unlawful medical experimentation (as a human rights violation); theft of national and archaeological treasures (in time of peace).

p And, finally, category (IV) includes the offences which are an object of attention in present-day international law concerning which international conventions are expected to be concluded.

p The chapter “Enforcement Part" considers, article by article, various questions of international cooperation, the application of the principle of aut dedere aut judicare, measures by States parties to the application of the code, problems of jurisdiction in connection with the enforcement of the code, regulation of extradition, juridical assistance and recognition of foreign penal judgements. This chapter defines the procedure for committing a defendant to a foreign State for the execution of a sentence, as well as the rights of the person involved in the trial in connection with the enforcement of the code and establishes legal costs and the procedure of its payment. The chapter entitled “General Treaty Provisions" formulates, article by article, the procedure for setting disputes, making reservations, signing of, 276 or acceding to the Convention, ratification, entry into force, review of the provisions of the Convention, and notification of the States parties, indicates the official languages of the Convention, and defines the procedure for the transmittal of the copies of instruments of ratification of the Convention to the States parties.

Extensive exploratory work done by the drafter of the code deserves the highest appraisal. He has taken into account both the history and the present-day state of international criminal law, and the contractual practice of States in this area, and generalised the conventionary mechanism of over 100 treaties and agreements. Yet the establishment of an International Criminal Court and a system of international criminal jurisdiction is still an object of scientific investigation and discussion.

p The foregoing drafts putting terrorist acts under the jurisdiction of the International Criminal Court have objectively qualified the offences under consideration as crimes of an international character, since the States parties to the Conventions were either to prosecute the defendant in the manner prescribed by national law or commit him for trial to the International Criminal Court, which meant mixing up the principle of aut dedere aut judicare—the principle of conventionary cooperation—with the necessity of prosecution for the commission of offences by the International Criminal Court.

p The mixed character of the jurisdiction of the International Criminal Courts the drafts of which have been reviewed above will become all the more obvious if compared 277 with the activities of the International Military Tribunal established to try and punish the major war criminals of the Axis Powers: 

p 1) Jurisdiction embracing the offences against peace, war crimes, and offences against humanity (Art. 6).

p 2) The Tribunal formed of representatives of the victor Powers which had defeated the fascist Axis Powers in World War II.

p 3) The Tribunal became an organ of international justice as a result of: 

p (a) Having put to trial individuals who had committed grave international crimes comprising the following international elements: the crimes had been perpetrated as part and parcel of the policies of the Axis Powers; they were extremely dangerous for all humanity; the crimes were committed on the territory of one or several States; perpetration of crimes by foreign natural persons or persons having foreign accomplices; crimes were committed against the property of a foreign natural or juridical person or State.

p (Beyond doubt, the key factor that prompted an international inquiry into the offences of the major Nazi war criminals was their extreme danger for all humanity and their inhuman essence);

p (b) having carried out all the stages of the trial: from the full investigation to the execution of sentences; 

p (c) the Statute of the Court having been subsequently acceded to by 19 States.

p The Nuremberg principles were sanctified in the UN General Assembly Resolution 95(1) adopted by 54 nations on December 11, 1946.

p From the standpoint of international law, it is clearly 278 possible to apply the mechanism of an International Criminal Court for the prosecution and punishment of international crimes  [278•1  (offences against peace, war crimes, offences against humanity, genocide and apartheid) by awarding the right to institute proceedings before the Court not only to States, but also to the Security Council as a major body responsible for the maintenance of international peace and security, by setting up, under its auspices, a Commission of Inquiry charged with the function of instituting proceedings before the Court on the basis of its Statute, following a Security Council decision founded upon a Commission report. As a result the body of prosecution of the Court provided for in the draft for the establishment of an International Criminal Court, whose statute had been drawn up at the conferences on international criminal law in 1971-72, will lose the right to institute proceedings before it; this right will pass on, wholly and entirely, to the States and a special body under the Security Council.

p Terrorist acts which due to their corpa delicti fall within the category of international crimes may be tried by such an International Criminal Court as well. For example, the assassination of a representative of a racial group to produce a state of terror among the members of that group is bound to be qualified as an international crime under Art. II of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid and, consequently, may be tried by an International Criminal Court. It is necessary to note, however, that at present selective jurisdiction is applied to persons guilty of 279 international crimes, as there is no International Criminal Court in existence, and the nations are anxious to secure inescapable punishment for international crimes. For instance, Art. V of the 1973 International Convention says that persons charged with having committed actions mentioned in Art. II of the given Convention may be brought before a competent court of any State party to the Convention, which may acquire jurisdiction over the defendants, or before the International Criminal Tribunal which may have jurisdiction over the contracting States which will have accepted its jurisdiction.

p In our view, the jurisdiction of the International Criminal Court over offences of an international character, including terrorist acts, may be resorted to whenever the mechanism of the relevant conventions has failed to work within a specified time-limit. In such a case, the International Criminal Court might act also as a conciliatory commission or a Court of Conciliation between nations with regard to the principle of inescapable punishment.

p To sum up, the extent of cooperation taking place between the nations in the prevention and punishment of terrorist acts falling within the scope of international law has been ascending from the method of unification through the conventionary mechanism to the establishment of an International Criminal Court. From the standpoint of inescapable punishment, this cooperation takes place in the event of: 

p a) unification—through the acceptance by national legislations of terrorist acts subject to unifications; 

p b) the conventionary mechanism—through the unification of the corpus delicti of a terrorist act in national legislations, and qualification of such acts as criminal offences for the purposes of extradition, with prosecution to be 280 based on the principle of aut dedere aut judicare, which in this case means “try or extradite to the other State”;

p c) the establishment of an International Criminal Court —through the application of the conventionary mechanism, where this principle means “try the accused yourself, or extradite him for prosecution to the International Criminal Court”. The latter circumstance only provides an alternative procedure of prosecution within the framework of international criminal jurisdiction which, in this case, will be of an optional character.

The conventionary mechanism of cooperation is the optimal method of legal cooperation of States for purposes of prevention and punishment of international terrorist acts. This is due to the effect produced by the application of the basic principles of the conventionary mechanism to the prosecution and punishment for the offences which have this particular corpus delicti and are socially dangerous in this particular way.