Whatever the reasons - ignorance of basic principles of criminal law or political expediency and pragmatism - the fact remains that the article 11 of the Statute of the ICC prevents it to try the New York and Washington acts of terrorism in which more than 7,000 innocent lives were taken and probably over a hundred billion dollars damage done.
There is no corresponding provision in the ICTY Statute. The Tribunal and its Statute were established on May 25, 1993 (the date of the adoption of the Resolution 827 of the UN Security Council) in relation to crimes committed since January 1, 1991. I wouldn't argue that the principle of non-retroactivity was thus violated by the Security Council. Simply because the perpetrators of crimes on the territory of former Yugoslavia knew and were aware that they were committing international crimes against peace, war crimes, crimes against humanity. One could also argue that the present article 11 of the ICC Statute violates the UN General Assembly resolution 2391 of November 26, 1968, that is the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (www.unhchr.ch/html/menu3/b/p_limit.htm ). The next problem with the ICC is that it has no jurisdiction over the crime of terrorism. In my opinion, those acts in New York and Washington should be characterized as acts of terrorism, not war as it was characterized by President Bush. Now, is terrorism a crime under international law? It is, there is no doubt about it. See www.asil.org/insights.htm, jurist.law.pitt.edu/forumnew.htm. The trial in the USA or in some Islamic country, as some suggest, seems, under the circumstances, out of question because it couldn't be fair. Also, the establishment by the Security Council of yet another ad hoc tribunal for trying international terrorism should be disregarded because the Security Council has no authority to do such a thing under the Charter of the UN. Both the ICTY and ICTR are illegal and should be disbanded; the only legally established international criminal court we have is ICC, and its statute should be amended, made a workable instrument of the present needs of international community. Instead of having a war with unforeseeable devastating consequences, the Security Council, the UN generally, all States of international community should demonstrate their political will to prosecute terrorism and accordingly to amend the ICC statute. ----- Original Message ----- From: "Arjuna Nadaraja" <[EMAIL PROTECTED]> To: "Milan Tepavac" <[EMAIL PROTECTED]>; "Tunga Ganbold" <[EMAIL PROTECTED]>; "Party of Citizens" <[EMAIL PROTECTED]> Cc: <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]> Sent: Thursday, September 27, 2001 12:33 PM Subject: RE: [ICC] NEWS: ICC Called to Try Terrorists > I disagree with Milan Tepavac in relation to Milan's view that those who > drafted article 11 of the Rome statute made a mistake. While many of us > would like to see the ICC deal with people who had committed crimes against > humanity in the past, the non-retroactivity provision is exactly that - > non-retroactivity. The ICC is being created to deal with crimes committed > after the Statute comes into force. If such a provision (non-retroactivity) > was not included in the Statute, I doubt that the creation of the ICC would > have got any support at all. > > Milan's view that the non-retroactivity clause actually meant "that the > crime must be defined as such at the time when it occurred" is incorrect. > Milan's view is derived from the well established principle in criminal law > that there is a "strong presumption NULLUM CRIMEN SINE LEGE" in relation to > the prosecution of a criminal offence. As Milan states, this principle > means that "there is no crime unless expressly created by law". However, > that does not mean that the drafters of the Statute got it wrong. The > drafters were realistic and as I have stated above, if the ICC was not > non-retroactive, we would not have got any support for its establishment. > > -----Original Message----- > From: Milan Tepavac [mailto:[EMAIL PROTECTED]] > Sent: Sunday, 23 September 2001 12:15 > To: Tunga Ganbold; Party of Citizens > Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED]; [EMAIL PROTECTED]; > [EMAIL PROTECTED] > Subject: Re: [ICC] NEWS: ICC Called to Try Terrorists > > > To avoid third (nuclear) world war, it is a saving idea to enable the ICC to > try for terrorist attacks committed in New York, Washington and elsewhere. > But, to enable it, the para. 1 of Article 11 of the Statute of the ICC must > be changed since it provides that "The Court has jurisdiction only with > respect to crimes committed after the entry into force of this Statute." > > The framers of the Statute made a mistake by misunderstanding the concept of > non-retroactivity. Non-retroactivity should mean that the crime must be > defined as such at the time when it occurred. Therefore, this provision of > the Statute should read: "The Court has jurisdiction only with respect to > crimes which were crimes under international law at the time when > committed." Or something to that effect. > > > To: email: > Unsubscribe: [EMAIL PROTECTED] > Subscribe: [EMAIL PROTECTED] > Contact owner: [EMAIL PROTECTED] > Get help: [EMAIL PROTECTED] > Get 1 post/day: [EMAIL PROTECTED] > Stop email: [EMAIL PROTECTED] > Restore defaults: [EMAIL PROTECTED] > > Para suscribirse a la lista en espanol, > envie un email a: [EMAIL PROTECTED] > Pour souscrire a la liste d'information en français, > envoyer un e-mail: [EMAIL PROTECTED] > > http://groups.yahoo.com/group/icc-info/messages > Coalition for an International Criminal Court: > http://www.iccnow.org > > Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/ > > > > To: email: > Unsubscribe: [EMAIL PROTECTED] > Subscribe: [EMAIL PROTECTED] > Contact owner: [EMAIL PROTECTED] > Get help: [EMAIL PROTECTED] > Get 1 post/day: [EMAIL PROTECTED] > Stop email: [EMAIL PROTECTED] > Restore defaults: [EMAIL PROTECTED] > > Para suscribirse a la lista en espanol, > envie un email a: [EMAIL PROTECTED] > Pour souscrire a la liste d'information en français, > envoyer un e-mail: [EMAIL PROTECTED] > > http://groups.yahoo.com/group/icc-info/messages > Coalition for an International Criminal Court: > http://www.iccnow.org > > Your use of Yahoo! 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