On December 11, 2017, the Harris Institute hosted a well-attended Side Event entitled “Progress in Drafting a Convention on the Prevention and Punishment of Crimes against Humanity” at the Sixteenth Session of the Assembly of States Parties of the International Criminal Court. The side event was co-sponsored by the Republic of Chile, the Federal Republic of Germany, the Hashemite Kingdom of Jordan, the Republic of Korea, and the Republic of Sierra Leone at UN Headquarters in New York.
The panel featured Special Rapporteur Sean Murphy, Professor Charles Jalloh, Professor Claus Kress, President-Elect of the ASP Judge O-Gon Kwon, Solomon Sacco from Amnesty International, and Professor Leila Nadya Sadat. The side event provided a briefing by the Special Rapporteur on the preamble, draft articles and annex adopted by the UN International Law Commission (ILC) in 2017 on the proposed crimes against humanity (CAH) convention. Then expert panelists commented briefly on the Commission’s work from their perspectives, followed by interventions from the audience.
Professor Sean Murphy began by providing a summary of the Commission’s work since the project was launched in 2014. The draft articles adopted by the Commission on its first reading fall into five general areas: prevention of CAH (articles 2, 4, and 5); investigation and prevention of CAH (articles 3 and 6); rights of the alleged offender and rights of victims, witnesses, and others (articles 11 and 12); inter-state cooperation (articles 13, 14, and the annex on mutual legal assistance); and inter-state dispute settlement (article 15).
Professor Charles Jalloh, also a member of the ILC, noted the tremendous progress of the Commission on this significant project. He noted that the legal text has the potential to become a treaty which is significant for the international community. He discussed the pressing need to have a CAH convention to “mind the gap” in international criminal law. Genocide, CAH, and war crimes are all considered international core crimes; however, while we have a Genocide Convention and the 1949 Geneva Conventions covering war crimes, the world still lacks a convention on preventing and punishing CAH.
Professor Claus Kress suggested that the provisions in the draft convention could enhance the coherency of international criminal law. With this draft convention, Bosnia and Herzegovina v. Serbia and Montenegro could have been decided differently because the Court would have been able to analyze the situation in a more legally comprehensive manner. He also noted the possibility of the draft convention having a positive spill-over, an inspirational effect.
ASP President-Elect Judge O-Gon Kwon gave his full support to the ILC’s work, noting the need to enhance the complementarity regime of the International Criminal Court.
Solomon Sacco of Amnesty International observed that the draft was a good start but found room for improvement, in particular as regards to the non-refoulement, mutual legal assistance, and rights of victims provisions. He specifically advocated for a clause prohibiting amnesties, the use of military tribunals, and reservations.
Director of the Whitney R. Harris World Law Institute and Crimes Against Humanity Initiative Chair Professor Leila Sadat paid tribute to the late M. Cherif Bassiouni, a member of the Initiative’s Steering Committee, and a principal author of its Proposed Convention. She underscored the important needs of victims for justice and also focused on the need for gap-filling in order to enhance coherency in international criminal law. Sadat also praised the work of the Commission but noted that the draft prepared by the Initiative was longer and, in some aspects, more progressive. She advocated for the inclusion of a Martens Clause in the Preamble of the draft convention, and the addition of incitement as a mode of liability.
Following interventions from participants, the panel noted that the final date for submitting comments to the ILC is December 1, 2018, and that this new convention could be adopted as soon as 2019.
This post is cross-posted on the Harris Institute blog Lex Lata, Lex Ferenda.
Photo credit for featured image: Rife Magazine available at: https://www.rifemagazine.co.uk/2016/06/please-mind-the-gap/.
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