Crimes against humanity
Briefing with the linguists
1. General background
At its sixty-sixth session (2014), the Commission decided to include the topic “Crimes against humanity” in its programme of work and appointed Mr. Sean D. Murphy as Special Rapporteur for the topic.
Purpose of the topic:
Only two of the three core crimes in IL, Genocide and war crimes, are the objects of a global treaty that requires States to prevent and punish such conduct. A global convention on prevention, punishment and inter-State cooperation with respect to crimes against humanity appears to be a key missing piece in the current framework of international law, and in particular IHL, ICL and IHRL.
Such a convention could help to stigmatize such egregious conduct, could draw further attention to the need for its prevention and punishment and could help to adopt and harmonize national laws relating to such conduct, thereby opening the door to more effective inter-State cooperation on prevention, investigation, prosecution and extradition for such crimes. In building a network of cooperation, as has been done with respect to other offences, sanctuary would be denied to offenders, thereby — it is hoped — helping both to deter such conduct ab initio and to ensure accountability ex post.
The overall objective for this topic will be to draft articles for what could become a convention on the prevention and punishment of crimes against humanity. Using the definition of crimes against humanity embodied in the Rome Statute, the convention could require all States parties to take effective measures to prevent crimes against humanity in any territory under their jurisdiction. One such measure would be for States parties to criminalize the offence in its entirety in their national law, a step that most States have not yet taken. Further, the convention could require each State party to exercise jurisdiction not just with respect to acts that occur on its territory or by its nationals, but also with respect to acts committed abroad by non nationals who later are present in territory under the State party’s jurisdiction.
Moreover, the convention could require robust inter-State cooperation by the parties for investigation, prosecution and punishment of the offence, including through the provision of mutual legal assistance and extradition. The convention could also impose an aut dedere aut judicare obligation when an alleged offender is present in territory under a State party’s jurisdiction. The convention could also contain other relevant obligations, such as an obligation for compulsory dispute settlement between States parties whenever a dispute arises with respect to the interpretation or application of the convention.
2. Methodology
The work on the draft articles on crimes against humanity is conducted within the existing legal framework of instruments, especially in the fields of IHL, ICL and IHRL.
The relationship of a convention on crimes against humanity to other treaties is an extremely important issue that is guiding the Commission in its work. Many of the acts that fall within the scope of crimes against humanity (when they are done as part of a widespread or systematic attack directed against a civilian population) are also acts addressed in existing treaty regimes, such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. A convention on crimes against humanity should build upon the text and techniques of relevant existing treaty regimes, but should also avoid any conflicts with those regimes.
By drawing upon existing instruments very largely ratified, the Commission is also reassuring Governments by using provisions generally accepted. It is therefore building support for the topic.
In practice, the draft articles suggested by the Special Rapporteur in his reports are based on existing treaties, which are systematically referenced therein.
When considering those provisions, the Drafting Committee of the Commission has used a table prepared by the Secretariat setting out all relevant provisions in existing treaties. The Commission is therefore not drafting new text ab initio in most cases, but adapting the language of existing treaties with a similar object.
3. Reference materials
The work on the topic is guided by numerous existing multilateral conventions in the fields of IHL, ICL, IHRL and transnational criminality.
In particular, I would like to draw your attention to the following conventions (without citing the various protocols thereto).
At the international level:
Convention on the Prevention and Punishment of the Crime of Genocide
The four Geneva Conventions of 1949
International Covenant on Civil and Political Rights
International Convention on the Elimination of All Forms of Racial Discrimination
International Convention on the Suppression and Punishment of the Crime of Apartheid
Convention on the Elimination of all Forms of Discrimination against Women
Convention for the Suppression of the Unlawful Seizure of Aircraft
Montreal Convention for suppression of unlawful acts against the safety of civil aviation
Convention on the prevention and punishment of crimes against internationally protected persons
Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents
International Convention against the taking of hostages
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Convention on the Rights of the Child
Convention on the Safety of United Nations and Associated Personnel
United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
International Convention for the suppression of terrorist bombings
Rome Statute of the International Criminal Court
International convention for the suppression of the financing of terrorism
United Nations Convention against Transnational Organized Crime
United Nations Convention against Corruption
International Convention for the Protection of all Persons from Enforced Disappearance
At the regional level:
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)
American Convention on Human Rights “Pact of San José, Costa Rica”
African Charter on Human and Peoples’ Rights
Inter-American Convention to Prevent and Punish Torture
Inter-American Convention on the Forced Disappearance of Persons
ASEAN Convention on counter terrorism
Previous work by the ILC
1996 ILC Draft Code of Crimes against the Peace and Security of Mankind
4. Work accomplished so far and reception by the 6C
At its sixty-seventh and sixty eighth sessions, the Commission considered the first and second reports by the Special Rapporteur (Documents A/CN.4/680 and Corr. 1 and A/CN.4/690) and adopted ten draft articles with commentaries thereto. The draft articles and commentaries have been published in the reports of the ILC on the work of its sixty-seventh and sixty-eighth sessions respectively (Documents A/70/10 and A/71/10).
See also Crimes against humanity: Information on existing treaty-based monitoring mechanisms which may be of relevance to the future work of the International Law Commission — Memorandum by the Secretariat (Document A/CN.4/698)
In 2015, the Commission has adopted four draft articles dealing with “Scope”, “General obligation”, “Definition of crimes against humanity” and “Obligation of prevention”.
In 2016, the Commission has adopted six further draft articles on “Criminalization under international law”, “Establishment of national jurisdiction”, “Investigation”, “Preliminary measures when an alleged offender is present”, “Aut dedere aut judicare”, and “Fair treatment of the alleged offender”.
Governments have been commenting on the topic at the Sixth Committee meeting held in 2014, 2015 and 2016. A summary of the debate is prepared by the Codification Division for the International Law Commission. The relevant “Topical summaries” can be found in documents A/CN.4/678, A/CN.4/689 and A/CN.4/703 (currently prepared).
During the debate in the Sixth Committee in 2015, 38 States addressed this topic with reactions that generally favoured the Commission’s work, stressing the importance of the topic, welcoming the four draft articles and viewing them as largely reflecting existing State practice and jurisprudence. Among other things, States expressed appreciation that the topic was proceeding in a manner that was complementary to the system of the Rome Statute of the International Criminal Court and underscored the need to avoid establishing new obligations that would conflict with obligations existing under the Statute or other treaties. A large number of States agreed with the Commission’s approach of using, in draft article 3, the definition of crimes against humanity that appears in article 7 of the Rome Statute.
During the debate in the Sixth Committee in 2016, thirty-nine States (including one on behalf of the Nordic countries) commented upon this topic, with views that generally favoured the Commission’s work to date, both stressing the overall importance of the topic and welcoming the draft articles adopted during the Sixty-eighth Session. In particular, numerous States again expressed appreciation of the steps taken to ensure that the Commission’s work does not conflict with existing instruments, in particular the Rome Statute establishing the International Criminal Court.
At this stage, the question of the final form of the draft articles remain open, although a number of States expressed support for a new convention.
5. 69th session programme
The Commission is intending to complete the first reading on the topic this year by adopting a complete set of draft articles with commentaries.
The third report has been submitted in January. It addresses a series of additional substantive issues relating to this topic, to propose what might be an appropriate preamble in the event that these draft articles are transformed into a convention, and to consider the possibility of final clauses to such a convention.
The issues addressed herein are: the rights, obligations and procedures applicable to the extradition of an alleged offender; non-refoulement of persons where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity; the rights, obligations and procedures applicable to mutual legal assistance; the participation and protection of victims, witnesses, and others in relation to proceedings within the scope of these draft articles; remedy and reparation for victims; relationship to other sources of law; obligations upon federal States; monitoring mechanisms and dispute settlement; a draft preamble; and further substantives issues for which proposals are not being advanced.
It will most certainly be the first topic taken up by the Commission at the beginning of the session in May.
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