The General Assembly, in resolution 260 B (III) of 9 December 1948 (E, F, S, R, C), invited the Commission “to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions”, and requested the Commission, in carrying out that task, “to pay attention to the possibility of establishing a Criminal Chamber of the International Court of Justice”.

Extracts from The Work of the International Law Commission, 6th ed., vol. 1

The Commission considered the question of international criminal jurisdiction at its first and second sessions, in 1949 and 1950, respectively. At its first session, the Commission appointed as Special Rapporteurs to deal with this question Ricardo J. Alfaro and A. E. F. Sandström, who were requested to submit to the Commission one or more working papers on the subject. In connection with the consideration of the question, the Commission had before it the reports of the Special Rapporteurs [1]  and documents prepared by the Secretariat. [2]

At its second session, in 1950, the Commission discussed the report presented by each of the Special Rapporteurs and concluded that the establishment of an international judicial organ for the trial of persons charged with genocide or other crimes was both desirable and possible. It recommended, however, against such an organ being set up as a chamber of the International Court of Justice, though it was possible to do so by amendment of the Court’s Statute which, in Article 34, provides that only States may be parties in cases before the Court. [3]

After giving preliminary consideration to the Commission’s report on the question of international criminal jurisdiction, the General Assembly adopted resolution 489 (V) of 12 December 1950 (E, F, S, R, C), establishing a committee composed of the representatives of seventeen Member States for the purpose of preparing preliminary draft conventions and proposals relating to the establishment and the statute of an international criminal court. The committee met at Geneva in August 1951 and formulated proposals together with a draft statute for an international criminal court. Under the draft statute it was proposed that the court should have a permanent structure but should function only on the basis of cases submitted to it.

The report of the Committee, [4]  containing the draft statute, was communicated to Governments for their observations. Only a few Governments commented on the draft, however, and in 1952 the Assembly, in resolution 687 (VII) of 5 December 1952 (E, F, S, R, C), decided to set up a new committee, consisting again of representatives of seventeen Member States, which met at United Nations Headquarters in the summer of 1953. The terms of reference of the Committee were: (1) to explore the implications and consequences of establishing an international criminal court and of the various methods by which this might be done; (2) to study the relationship between such a court and the United Nations and its organs; and (3) to reexamine the draft statute. The Committee made a number of changes in the 1951 draft statute and, in respect of several articles, prepared alternative texts, one appropriate if the court were to operate separately from the United Nations and the other in case it were decided that the court should be closely linked with the United Nations. The report of the Committee [5]  was placed before the Assembly at its 1954 session.

The Assembly, however, in resolution 898 (IX) of 14 December 1954 (E, F, S, R, C, A), decided to postpone consideration of the question of an international criminal jurisdiction until it had taken up the report of the special committee on the question of defining aggression and had taken up again the draft code of offences against the peace and security of mankind. The report of the special committee was before the General Assembly at its twelfth session, in 1957. While taking note of the report, the Assembly postponed consideration of the question of defining aggression and the draft code of offences to a later stage. A similar decision was taken by the General Assembly with respect to the question of an international criminal jurisdiction in resolution 1187 (XII) of 11 December 1957 (E, F, S, R, C, A). It was felt that, since the subject was related both to the question of defining aggression and to the draft code of offences against the peace and security of mankind, consideration should be deferred until such time as the Assembly again took up the two related items.

The matter was subsequently brought to the attention of Member States in 1968 by the Secretary-General [6]  in connection with placing the item on the report of the Special Committee on the Question of Defining Aggression on the agenda of the General Assembly. The Assembly’s General Committee decided, however, that it would not be desirable at that stage, prior to the completion of the Assembly’s consideration of the question of defining aggression, for the items “International criminal jurisdiction” and “Draft Code of Offences against the Peace and Security of Mankind” to be included in the agenda and that those items should be taken up only at a later session when further progress had been made in arriving at a generally agreed definition of aggression. [7]  The General Assembly adopted its agenda as proposed by the General Committee.

The same question was again brought to the attention of Member States by the Secretary-General in a memorandum addressed to the General Committee in 1974, [8]  when a draft definition of aggression was submitted to the General Assembly. In allocating the item on the question of defining aggression to the Sixth Committee, the Assembly commented that it had decided to take note of the Secretary-General’s observations and to consider whether it should take up again the question of a draft code of offences against the peace and security of mankind and the question of an international criminal jurisdiction. [9]

The question of international criminal jurisdiction was raised again in the context of the Commission’s work on a draft code of offences against the peace and security of mankind.

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