Mapping Asian States’ Position on Crimes Against Humanity Convention Through AALCO Records

[Aakash Chandran is the Legal Advocacy and Communications Manager at Asia Justice Coalition. He tweets at @ChandranAakash]

Introduction

The support for the International Law Commission’s (ILC) Draft Articles on Prevention and Punishment of Crimes Against Humanity (“Draft Articles”) is growing across the board at the United Nations General Assembly’s Sixth Committee (“Sixth Committee”). In 2019, the Draft Articles were adopted by the ILC and submitted to the General Assembly and since then it has been stuck at the Sixth Committee (the legal committee) due to lack of a consensus on the next steps.

Last year, in a welcome move, the deadlock was broken with a cross-regional resolution (Res. 77/249) that called for two resumed sessions of the Sixth Committee on Crimes Against Humanity (CAH) in 2023 and 2024 respectively. The first resumed session (10 – 14 April 2023) witnessed extensive discussion on the substantive content of the Draft Articles by a majority of States, including Asian States. Resolution 77/249 also calls on States to submit their written comments by 1 December 2023 that would guide the discussion at the second resumed session in April 2024.

This blog post reviews the Asian-African Legal Consultative Organization’s (AALCO) records to understand the position of Asian States on the Draft Articles and complement the position undertaken at the UN General Assembly Sixth Committee.

AALCO – A Forgotten Regional Institution

The AALCO, headquartered in New Delhi, was established on 15 November 1956 in Indonesia as an alternative platform to situate internationalism that is reflective and sensitive to Asian-African sensibilities, vision, and aspirations. AALCO (earlier known as the Asian Legal Consultative Committee (ALCC) was initially set up as a non-permanent committee for five years by India, Ceylon (now Sri Lanka), Burma (now Myanmar), Indonesia, Iraq, Japan, and United Arab Republic (now Egypt and Syria) as a transnational institution of legal experts on international law. In 1958, ALCC opened its doors to African States by amending its statutes and became the Asian-African Legal Consultative Committee (AALCC). Taking stock of the growing demands of constituting AALCC as a permanent body and that of increasing mandate, it was changed to AALCO.

AALCO, a grouping of 47 Member States and 2 permanent observer States, was born out of a desire to provide a platform to articulate legal and policy positions on topics of common interest under international law. AALCO considers, examines, and deliberates on international law topics and makes recommendations to Member States. The cross-regional grouping facilitates the exchange of views, best practices, and positions on international legal issues of common interest. AALCO serves as a platform to collectively engage and formulate a legal position that amplifies Asian-African centrality; the one which complements and counters the projection of Western international legal order as the only accepted perspective.

Every year, since its inception, AALCO hosts its Annual Session, the highest decision-making body of the organisation. Many non-member States and international organizations, including members of the International Law Commission (ILC), participate in the Annual Sessions as observers. The Secretariat, which supports the work of the organisation, undertakes documentation and various substantive studies on the subjects referred by the Member States or adopted at the Annual Session. The secretariat also discharges an advisory role for its Member States and organises training programmes, seminars, and capacity-building initiatives.

The Annual Session adopts the work programme for the organisation and resolutions on substantive matters of international law. Currently, 18 international law topics are part of its work programme, including the recent developments of the International Criminal Court. The agenda items of the International Law Commission are a permanent subject of the work programme. Because of this mandate, AALCO reviewed the ILC’s Draft Articles on Crimes Against Humanity from 2016 to 2019.

Asian States’ Position on CAH Draft Articles (2016 – 2019)

In 2016, Malaysia viewed the ILC’s work as duplicative and redundant as crimes against humanity is already within the mandate of the ICC. Malaysia based its argument on the understanding that the member States of the Rome Statute have an obligation to domesticate the crimes in their jurisdictions in furtherance of the complementarity principle. Further, the replication of the definition of CAH from the Rome Statute to the Draft Articles was flagged as problematic. (pp. 43 – 44, 129, 2016 Verbatim Record)

China questioned the relevance and need for a specialised convention and called out ILC’s product devoid of any empirical study of state practice. According to its delegate, the Draft Articles ‘are made by analogy or deduction from the provisions of other international conventions and partial practice of some international criminal courts which has not acquired a universal character’ (pp. 152 – 153, 2019 Verbatim Record). It also objected to the codification process based on the practice of international judicial institutions and verbatim provisions of other international treaties. It asked the ILC to be cautious in imposing new obligations of ‘cooperation with organisations’ without any legal basis. (p. 131, 2016 Verbatim Record)

The Republic of Korea voiced its support for the Draft Articles and called for the definition of crimes against humanity to be in line with that under the Rome Statute for the benefit of coherence and stability of international legal order. Korea welcomed the provisions on mutual legal assistance and extradition as it would bolster inter-state cooperation in the fight against impunity, especially in the absence of bilateral treaties. (p 149, 2019 Verbatim Record)

In 2019, Japan took note of the Draft Articles and sought a balance to be struck between codification and creation of new international legal norms to facilitate its adoption by States when a diplomatic conference is convened. (p. 150, 2019 Verbatim Record). Similarly, in 2016, Japan supported the work on the Draft Articles by reminding the Commission to avoid any conflict of obligations arising out of other international courts and tribunals, including the ICC. (p. 127, 2016 Verbatim Record)

India raised its doubt about the utility of the ILC’s work on crimes against humanity in light of the Rome Statute and its call for member states to criminalise and prosecute the crime. (pp. 155, 2019 Verbatim Record). In 2016, India cautioned against the conflict with the existing international legal obligations. (pp 130 – 131, 2016 Verbatim Record)

Vietnam appreciated the efforts of Prof. Dr. Sean Murphy (Special Rapporteur for Crimes Against Humanity) and deferred the assessment of the draft articles and their necessity and content to the Sixth Committee. Being a victim of the Khmer Rouge regime, Vietnam supported the movement on CAH and called for an inclusive, clear, and broad definition. (p. 157, 2019 Verbatim Record)

In the 57^th Annual Session in Tokyo in 2018, Indonesia, which has criminalised crimes against humanity domestically, substantively engaged with the Draft Articles. It called for legal certainty and specificity in the wording of the Draft Article 4 on preventive measures. While Indonesia appreciated the spirit of inter-state cooperation through multilateral treaties, it pointed out the fact that States favour bilateral treaties as the basis for extradition in practice. (p. 250, 2018 Verbatim Record)

Dr. George Nolte, member of the International Law Commission, attended the 2019 Annual Session held in Dar es Salaam, Tanzania and clarified that the Commission has recommended elaboration of a Convention based on the Draft Articles. The Commission has not merely called on the General Assembly to ‘take note’ or adopt a ‘non-binding’ instrument or a way to facilitate ‘ad-hoc cooperation between states’. Dispelling the myth about the relationship between the ICC and the Draft Articles, he clarified that the CAH Convention ‘do not compete with the Rome Statute of the International Criminal Court’. (pp. 142 – 143, 2019 Verbatim Record).

Growing Support for the Draft Articles in Asia

In Asia, support towards the CAH Convention is increasing slowly. AALCO members, Afghanistan, Bangladesh, Myanmar – all support the movement on the Draft Articles at the Sixth Committee. Check Asia Justice Coalition’s Brief here.

Malaysia, in a reversal of its position at the AALCO Session, supports the elaboration of the Draft Articles either through the UN General Assembly or an international conference of plenipotentiaries. Likewise, Thailand has expressed its intention to recommend the adoption of the Draft Articles. According to Thailand, ‘[such a] convention will present a mechanism through which States can strengthen their domestic laws, national adjudication, and international cooperation to ensure accountability for crimes against humanity’.  On the other hand, Vietnam, in contrast to its earlier position at the AALCO session, took a cautious approach and called for a more detailed analysis, especially concerning ‘universal jurisdiction’. 

In 2018, the AALCO secretariat reached out to the Member States and posed ‘guiding questions’ to facilitate the working of the ILC Rapporteur on Crimes Against Humanity. The questionnaire covered a diverse set of questions ranging from state practice as to domestic law on crimes against humanity, non-refoulement of aliens and asylum process, aut dedere aut judicare for serious crimes, amnesty, victim compensation and reparations, etc. (see, p. 88, 2018 ILC Brief). While unclear if Member States responded to the questionnaire, these responses would be an excellent resource on Asian-African state practice.

The Road Ahead at AALCO

From 16 – 20 October, AALCO concluded its 61^st Annual Session in Bali, Indonesia and crimes against humanity was not a part of its agenda and discussion. The CAH Convention has not been discussed at AALCO since 2019 once the ILC adopted and submitted the Draft Articles and its commentary to the General Assembly.

There are three ways in which a subject could be added to AALCO’s work programme – 1) State referral 2) Suo-moto inclusion by the Secretary-General 3) a follow-up of the work of the ILC. Because the Draft Articles are a product of the ILC, extensively deliberated by AALCO, the subject of crimes against humanity should be included in its work programme. Alternatively, Korea, Indonesia, Malaysia or African States like The Gambia, Uganda, or Sierra Leone should refer crimes against humanity to build a collective Asian-African position on the Draft Articles.

It is crucial to understand that the Draft Articles bridge the normative gap in treaty law by providing for State responsibility for crimes against humanity and thus, it is a timely and non-duplicative exercise. The proposed Convention requires States to prevent the commission of CAH and investigate and prosecute the crimes before their national courts. Unlike the Rome Statute, the Draft Articles strengthen inter-State cooperation at the horizontal level, enable States to develop national capacity to investigate and punish crimes against humanity within their territory, and consequently bolster national capacity.

It must be remembered that once the Sixth Committee decides to adopt a future convention on Crimes Against Humanity based on the Draft Articles, the substance of the treaty could be debated and discussed at a diplomatic conference, should the General Assembly decide to convene one. This calls for active participation and engagement from the Asian bloc. Mindful of the potential for a fractured treaty-making process and dwindling engagement of States, this is an opportunity for AALCO to become more relevant, and to centre Asia and Africa in international law.