Prospects for a Convention on the Prevention and Punishment of Crimes against Humanity

[Madaline George is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law.]

More than 70 years after crimes against humanity were defined in Article 6(c) of the London Charter and prosecuted at Nuremberg, the international community may soon have a global convention on crimes against humanity. In Chapter IV of the Report of the International Law Commission on the work of the seventy-first session, made available in August 2019, the International Law Commission (ILC) presented the final text of Draft Articles and commentary for this important new treaty.

This is the result of a global effort originating in the trial of 24 Nazi criminals on charges of crimes against humanity at the Nuremberg Tribunal. Unlike war crimes, however, crimes against humanity were never codified in a specialized convention, although the 1948 Genocide Convention criminalizes one form of crimes against humanity. Several prominent scholars – chief among them the late M. Cherif Bassiouni – wrote profusely on the need for such an instrument to close an increasingly important gap in international law. Yet it was not until 2008, when the Whitney R. Harris World Law Institute at Washington University School of Law in St. Louis launched the Crimes Against Humanity Initiative, that concrete action was taken to write such an instrument. In 2010, after consulting with over 300 experts, the Initiative presented the model text of a Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity. Three years after the Proposed Convention was finalized, the ILC included the topic of crimes against humanity on its long-term work program and appointed Professor Sean Murphy as Special Rapporteur. Support for its important work increased with time and in 2017, when the First Reading of Draft Articles was presented to the UN General Assembly’s Sixth (Legal) Committee, 55 States commented; only four States – China, India, Iran, and Sudan – offered negative views. When the Commission invited feedback from States, international organizations, and others in December 2018, it received a record number of comments, most of which were positive and expressed pleasure that the Draft Articles would not conflict with the Rome Statute. The Draft Articles were revised in summer 2019 after vigorous discussion based upon these comments and the Special Rapporteur’s Fourth Report.

The Commission, like the Initiative, consulted existing treaty regimes to borrow concepts that were already widely accepted by a number of States. It also tried to complement the Rome Statute. The Draft Articles define crimes against humanity consistently with Article 7 of the Rome Statute, with two changes: the definition of gender in Article 7(3) was removed and the definition of persecution in Rome Statute Article 7(1)(h) was restricted to require a connection with only another crime against humanity, and not also war crimes or genocide. The Draft Articles have robust jurisdictional and aut dedere aut judicare provisions, including a rendition of the so-called ‘triple alternative’ (Draft Article 10) that ought to be the model for future conventions. This ‘triple alternative’ is a contemporary version of the outdated ‘Hague formula’ and requires States to either try or extradite suspects to a third State or surrender them to an international criminal court or tribunal. The Draft Articles also create a framework for mutual legal assistance (Draft Article 14) and extradition (Draft Article 13), provide strong protections for victims, witnesses, and the accused (Draft Articles 11 & 12), and provide for the settlement of disputes (Draft Article 15). Other significant positive aspects include a strong provision on the irrelevance of official capacity in Draft Article 6(5) and the inclusion of liability for legal persons in Draft Article 6(8).

The Draft Articles elaborate a comprehensive legal framework on prevention that has six core obligations. First, States must not commit crimes against humanity. Second, States are obligated to prevent others from committing crimes against humanity, to the extent that they are able. Third, the Draft Articles obligate States to take effective legislative or other appropriate preventive measures in territories under its control, including, unlike the Rome Statute, the obligation to adopt laws criminalizing crimes against humanity. Fourth, the Draft Articles impose upon States a duty to cooperate. Fifth, States shall not send a person to a place where they are at risk of being subjected to crimes against humanity. Finally, the Draft Articles obligate States to punish crimes against humanity.

There are a few elements of the Draft Articles that may need further attention. States should carefully consider some of the more positivistic aspects of the Draft Articles, and whether more space for development should be left in the text of the treaty and commentary. Specifically, the commentary relevant to the “without prejudice clause” in Draft Article 2(3) states that “any elements adopted in a national law, which do not fall within the scope of the present draft articles, would not benefit from the provisions set forth within, including on extradition and mutual legal assistance.” (page 46, para. 43). Likewise, the commentary to Draft Article 6 states:

While [the without prejudice clause] recognizes the possibility of a broad definition of “crimes against humanity” in any international instrument, in customary international law or in national law, for the purposes of these draft articles the definition of “crimes against humanity” is limited to draft article 2, paragraphs 1 and 2. (page 68, para. 6)

This may leave some States outside of the treaty regime who have adopted more progressive definitions than those codified in the treaty and is inconsistent with modern extradition practice. While dual criminality is required for extradition, this is generally interpreted to mean that the alleged conduct is criminal in both jurisdictions, not that the name of the crime, definition, or even the elements be identical across both. For example, the United States extradited John Demjanjuk to Israel for charges of “crimes against humanity” and “crimes against the Jewish people,” despite the absence of U.S. federal statutes criminalizing these acts as such. In Collins v. Loisel, 259 U.S. 209, 312 (1922), the U.S. Supreme Court stated:

The law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions.

In Washington v. Johnson (1988), 40 C.C.C. 3d, 548, the Canadian Supreme Court, considering the extradition of an individual to the United States, held, as Professor Sharon Williams explained, that “there is no need for exact identity in terminology nor for the elements of the crime to be the same in both states. This would as a practical matter be an impossible task to accomplish….” The House of Lords, in interpreting the US-UK Extradition Treaty, held in the 2008 case Norris v. the Government of the United States that a “conduct” test was to be applied, which did not require a strict matching of offenses, meaning that conduct constituting a “conspiracy to defraud” charge in the U.K. could, under some circumstances, qualify an individual for extradition to the United States on charges of price fixing.

Moreover, States should be given room to vary the text of the treaty, which should be seen as a “floor” rather than a “ceiling.” This is common practice for States when enacting domestic legislation based on an international criminal treaty, including the Rome Statute. For example, Article 212-2 of the French Penal Code requires ‘a concerted plan’ to prove criminal responsibility for crimes against humanity, as opposed to a ‘State or organizational policy’ and Articles 607-616 bis of Spain’s Penal Code includes political groups in the definition of genocide.

The need for continued evolution of the crime could also be recognized by including a Martens clause in the preamble. Indeed, its absence seems odd, particularly as the Commission included it in the Draft Principles on the Protection of the Environment in relation to Armed Conflicts, provisionally adopted by the Commission in June 2019, and because the Martens clause was the origin of the crimes against humanity charges at Nuremberg. Although the preamble to the Draft Articles already notes that the prohibition against crimes against humanity currently exists in customary international law and is a rule of jus cogens, the inclusion of a Martens clause would make it more clear. It is worth emphasizing that although many core obligations of States are codified by the Draft Articles, they were not been created by it.

Other areas for consideration are more structural, such as whether the convention should establish a treaty monitoring mechanism, if it should include a no reservations clause, and whether there should be an ‘opt-out’ clause to accompany a strong dispute resolution clause which gives the International Court of Justice the option for review. Some members of the ILC suggested that these are questions of institutional design and policy best left to States, which is generally in line with ILC practice.  Nonetheless, States will need to address these important questions. In particular, the commentary to the Draft Articles, replete with decisions and comments from treaty bodies, demonstrates the importance of such monitoring mechanisms. Such a body could ultimately decide the success and influence of a crimes against humanity treaty. Likewise, dispute settlement is fundamentally important to the success of a treaty and as such, an “opt-out” clause should be considered only if reservations are otherwise prohibited.

Finally, some areas for consideration are specific and substantive. For example, a number of States and NGOs, particularly those in Latin and South America, have suggested that a treaty on crimes against humanity should have a clear standard for the prohibition of amnesties. States may also wish to consider adding ‘direct and public incitement’ as a mode of liability. This is consistent with the views of scholars, as well as customary international law. Although the commentary suggests that the various terms in Draft Article 6, subparagraph 2 (c) cover ‘incitement’ (page 70-71, para. 13), that is not entirely clear.

One possible impediment to the establishment of a new crimes against humanity treaty is the MLA Initiative of Argentina, Belgium, Mongolia, the Netherlands, Senegal, and Slovenia, which I have written about elsewhere. This MLA Initiative has progressed outside the United Nations system and with little transparency. The only public text of these draft articles seems to be those submitted as an annex to the Netherlands’ comments to the ILC on the topic of Crimes against Humanity. No updated articles were released following a March 2019 Preparatory Conference on the topic. Yet there is talk of a June 2020 conference in Slovenia to “negotiate a draft treaty,” which may have the effect of effectively reducing political support from the effort to adopt a crimes against humanity treaty.

On August 5, 2019 the Commission transmitted the Draft Articles to the General Assembly and “recommended the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles.” (Page 10, para. 42). The Draft Articles will be discussed at the UN Sixth (Legal) Committee on October 28-30, 2019. Many who have been following this process hope that States will follow the Commission’s recommendation.