New Delhi (ABC Live): Crimes Against Humanity : As noted in the proposal for the topic adopted by the Commission at its sixty-fifth session in 2013, in the field of international law three core crimes generally make up the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity.
Only two of these crimes (war crimes and genocide) are the subject of a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. By contrast, there is no such treaty dedicated to preventing and punishing crimes against humanity.
Yet crimes against humanity may be more prevalent than either genocide or war crimes. Such crimes may occur in situations not involving armed conflict and do not require the special intent that is necessary for establishing genocide.
Moreover, treaties focused on prevention, punishment and inter-State cooperation exist for many far less egregious offences, such as corruption, bribery or organized crime. While some treaties address offences, such as State-sponsored torture or enforced disappearance of persons, which under certain conditions might also constitute crimes against humanity, those treaties do not address crimes against humanity as such.
As such, 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, international humanitarian law, international criminal law and international human rights law.
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.
Hence, 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 (hereinafter “convention on crimes against humanity” or “convention”).
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.
The convention would not address other serious crimes, such as genocide or war crimes, which are already the subject of widely-adhered-to global treaties relating to their prevention and punishment.
An argument can be made that existing global treaties on genocide and war crimes could be updated through a new instrument, and there is support among some States and non-State actors for an expanded initiative of that kind.
Bearing in mind that several States have suggested that work on this topic should complement rather than overlap with existing legal regimes, the present topic focuses on the most prominent gap in such regimes, where the need for a new instrument appears the greatest.
The Commission, of course, remains open to the views of States and others as it proceeds with this topic, and ultimately it will be for States to decide whether the scope of the Commission’s work is optimal.