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The ILC takes up Crimes against Humanity

1 Nov

The International Law Commission (ILC) briefed the Sixth Committee at its 68th session about the ILC’s work over the course of the past year. Among the advancements made, the ILC presented its work on crimes against humanity (“CAH”) which it has added to its long-term programme of work. Essentially, the discussion in the plenary revolved around ensuring that any draft convention on CAH address existing gaps in the international legal system and that it complements, not replaces, existing legal instruments.

The consideration of this issue was met by general support and some concerns by member states. The Nordic countries noted that while the Rome Statute of the International Criminal Court (“ICC”) regulates prosecution of international crimes, it does not address the duties of states parties to prevent these crimes from occurring in the first place, nor does it provide a framework to enhance inter-state cooperation. Furthermore, the group cautioned against revisiting the definition of CAH, and emphasized that states’ obligations to extradite and prosecute offenders should be highlighted. Finally, the Nordic countries called on the ILC to consider responsibilities for member states to prevent such crimes as well as to present innovative measures and mechanisms to enhance the prevention framework.  Moreover, Austria, in reiterating the state’s responsibility to prosecute, highlighted that many states have not adopted national legislation to criminalize CAH at the national level, as per the Rome Statute provisions.

In addition, the Netherlands noted that the tools to prosecute, including strengthening prosecutions at the national level, promoting judicial systems etc, need to be stronger and more robust, not necessarily the definition of the CAH. Moreover, South Africa, reflecting on the need to have an international treaty that would obligate states to criminalize CAH, the significance of the Rome Statute is that states parties must adopt national legislation criminalizing statute obligations. The issue in question is not so much what the law says, but rather on having the appropriate political will or national capacity to implement the appropriate legislation. It is uncertain that a draft convention would fill these gaps. Likewise, South Africa called for more attention to inter-state cooperation for national-level prosecutions and expressed reservations with moving this agenda forward in this format because the issues under consideration are not relevant to all member states, including to all ICC states parties.  Along those lines, many states (including Russia, China and India) questioned the value of having another document of this kind, wondered about its potential complementarity with other instruments, and questioned the ILC’s continued focus on this matter.[i]

These issues of definition, inter-state cooperation, and rationale for the draft convention are all elements contained in the proposal annexed to the ILC’s report written by Prof. Sean D. Murphy. Apparently, the reasoning for the draft convention is that it would create a set of treaty-bound obligations to prosecute and prevent CAH, similar to those established by the Geneva Conventions for war crimes and the Genocide Convention for genocide.[ii] The ILC’s task would be to create the draft articles that would eventually become the “Convention on the Prevention and Punishment of Crimes against Humanity.”[iii]

Among the elements that must be decided in preparation for the draft convention include a consensus definition of CAH; national criminalization of acts of nationals, non-nationals, and acts within state territory; inter-state cooperation by parties to investigate and prosecute; and establish an aut dedere aut judicare obligation for states.[iv] In regards to the relationship with the ICC, the draft convention would complement the Rome Statute because it would fill the existing gap of encouraging the enactment of national laws that would prevent and protect against CAH.[v]

To echo the comment made by the United States, while the draft convention is welcomed, it nevertheless is tethered to challenging issues that must be discussed before moving forward. While conceptually the draft convention would fix the gaps of the ICC in promoting the tools for prevention and prosecution of CAH, it is not clear how it would bypass some of the jurisdictional challenges that the ICC faces. Arguably one of the biggest challenges in ending impunity and prosecuting perpetrators of abuse is obtaining jurisdiction. The ICC acquires jurisdiction if either the state party in question accepts its jurisdiction or the Security Council refers the situation to the court. But what happens in instances when neither occurs or when the state party is not cooperating with the ICC? If the objective of a draft convention would be to build on existing work, fill the gaps in the international legal system and strengthen operational tools, then can’t an argument be made that the jurisdictional issue needs to be resolved first, especially since such a convention would surely face challenges related to national sovereignty?

Finally, there is clearly legal and political merit to creating an international instrument that would emphasize and build on existing legal obligations for prosecuting and preventing CAH. But at the same time, the political will and capacity must be there to ensure that the instrument is ratified, implemented at national level, and duly enforced. At this time, it is not clear that the political will exists to push this process forward.

–          Melina Lito, Legal Adviser on UN Affairs

[i] GA/L/3467

[ii] A/68/10, Annex B, para. 1-3.

[iii] A/68/10, Annex B, para. 3.

[iv] A/68/10, Annex B, para. 8.

[v] A/68/10, Annex B, para. 9-13.