By: Madaline George
I recently spent two weeks in Geneva, Switzerland to observe the United Nations International Law Commission discuss the first report on crimes against humanity. This was a milestone moment, as the Harris Institute has been working on the drafting of a proposed global convention on crimes against humanity since 2008 when they launched the Crimes Against Humanity Initiative (CAHI). I joined the Institute a few months after it hosted an Experts’ Meeting in Geneva, which resulted in a detailed report. Soon thereafter the UN International Law Commission (ILC) ILC – the UN body tasked with “the promotion of the progressive development of international law and its codification” – voted to move the topic of crimes against humanity to its active agenda. Mr. Sean Murphy of the US, who attended multiple of the CAHI meetings, was appointed Special Rapporteur. What a difference a year has made.
On February 17, 2015, Mr. Murphy published a comprehensive first report on crimes against humanity. It provides a justification for the ILC’s work on this topic, a history of crimes against humanity from Nuremberg to today, and an exhaustive examination of related treaties that provide a basis for the punishment and prevention of crimes against humanity in international law. Murphy’s report also proposed two draft articles: The first was on the obligation to prevent and punish, and the second was a replication of the definition of crimes against humanity in the Rome Statute of the International Criminal Court (ICC).
Over the course of six days, 26 ILC Members commented on Mr. Murphy’s report, both in the form of prepared statements and mini-debate. There was a general consensus that this was an important topic for the Commission to pursue, and that there were gaps in the international legal framework which could be filled by a new convention on crimes against humanity. It was exciting to watch the work of the Institute be debated and complimented by this prestigious group.
Although Members differed as to what the key objective of their work on this topic was, most Members felt that its usefulness was either in encouraging and facilitating of the adoption by States of domestic legislation criminalizing crimes against humanity or in the creation and strengthening of mechanisms for inter-State cooperation and mutual legal assistance.
Significant discussion revolved around the mandate of the Commission, with some Members questioning if the Commission could or ought to approach this topic openly as an effort to draft a convention; others responded that the ILC has the mandate to do so. Ultimately, it seems clear that there is precedent for such an approach, although the form of the final report and recommendation that the Commission will make at the conclusion of its work will be decided at a later date. The ILC will therefore continue to develop “draft articles,” keeping in mind that the proposal for this topic envisaged that these articles would be used for a convention.
Nearly all Members agreed with Mr. Murphy’s decision to retain the Rome Statute definition of crimes against humanity. Although Ms. Concepción Escobar Hernández of Spain brought up, for example, that there has been academic discussion on reconsidering what ‘gender’ means within the Statute, she urged the Commission to recall that the Rome Statute was the product of length discussions and therefore they ought not move away from its wording. Mr. Juan Manuel Gomez-Robledo of Mexico suggested the inclusion or at least consideration of certain additional crimes, including indiscriminate weapons , nuclear weapons and weapons of mass destruction – which in his opinion must be crimes against humanity given their nature.
It is clear that as the ILC moves forward on this topic they will encounter issues which will result in more disagreement and necessitate greater discussion.
The idea of universal jurisdiction will without a doubt be one such discussion. Already at this session it was clear that disagreement exists as to what jurisdictional limits, if any, should be imposed on the prevention and punishment of crimes against humanity. Indeed, whereas Mr. Mahmoud D. Hmoud of Jordon felt that it will be highly important to clarify the territorial limits for prevention and to establish jurisdiction, Mr. Gomez-Robledo stated that he didn’t expect the Commission to come to any agreement as regards universal jurisdiction. Mr. Kriansak Kittichaisarree of Thailand noted that the 6th Committee had been working on the topic for multiple years without progress, but he, along with Mr. Eduardo Valencia-Ospina of Colombia, Mr. Dire Tladi of South Africa and Mr. Gilderto Vergne Saboia of Brazil nevertheless felt that universal jurisdiction should be included to remove the possibility of safe havens. Sir Michael Wood of the UK, on the other hand, felt that jurisdiction should be based on territory.
Another topic that will require consideration is that of direct state responsibility. Many Members referred to the ICJ case Bosnia v. Serbia, in which the Court found that although the obligation for a State to not commit genocide was not written in the Genocide Convention, it was nonetheless implied by the text. Certain Members of the Commission, including Mr. Gomez-Robledo, felt it was important for the ILC’s draft articles on crimes against humanity to explicitly include such a prohibition.
Several other topics were suggested for future analysis. Mr. Gomez-Robledo questioned what jurisdiction alleged perpetrators ought to be tried in, civilian or military, and Mr. Ki Bab Park of Korea and Mr. Hussein A. Hossouna of Egypt suggested the need to consider whether the convention would apply to crimes which occur before its entry into force. Members also requested consideration of the relationship between obligations under a possible crimes against humanity convention and a State’s obligations under other treaties. Particularly, Mr. Hmoud wanted clarification on how multiple requests for extradition would be handled and Mr. Forteau of France felt that the relationship of this topic to refugee law needed to be explored.
The Crimes Against Humanity Initiative consulted more than 300 experts on these and other issues over the last eight years in the course of elaborating and drafting the Model Convention. Analysis and conclusions are explored in the Geneva Report and Forging a Convention for Crimes Against Humanity, edited by Harris Institute Director Leila Sadat. Every member of the ILC has a copy of both of these publications, and we hope they will be of continued use as the Commission’s work continues.
The ILC Drafting Committee spent four meetings from May 28 – June 2 considering the draft articles, provisionally adopting four. The first draft article is a general ‘scope’ provision, common practice for ILC projects, and Draft article 3 retains the Rome Statute definition of crimes against humanity, with the addition of a “without prejudice” clause to any broader definition that may appear in international law or domestic legislations. Based on the concerns of some Members of the Commission who felt that proposed article 1 was unbalanced in the sense that it addressed both prevention and punishment, the Drafting Committee essentially split it into two different articles. Draft article 2 expresses a general obligation to prevent and punish crimes against humanity and Draft article 4 is specific to the obligation to prevent. It declares that “no exceptional circumstances…may be invoked as a justification of crimes against humanity.”
In due course, the ILC is expected to send a full set of draft articles to the General Assembly. Murphy’s first report set a tentative timetable for the future work of the Commission, which anticipates that a first reading of the entire set of draft articles could be completed by 2018, with a second reading completed by 2020. In the course of the debate, Mr. Georg Nolte of Germany challenged his colleagues to consider if they wanted to draft a convention that many States are quick to ratify, but which does not set a very high standard; or do they want to draft one with strong and innovative provisions but which many states are hesitant to adopt, at least for the near future? One hopes that the work done by the Harris Institute will help to move this topic along efficiently and quickly. Indeed, Mr. Kittichaisaree, Sir Michael Wood and Mr. Hassouna urged the project to proceed faster than the proposed schedule, with Mr. Kittichaisaree, stressing that there are “too many atrocities committed right now that need [a CAH Convention].”