Guest Post: The Crimes Against Humanity Initiative and Recent Developments towards a Treaty

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and the Director of the Whitney R. Harris World Law Institute. Douglas J. Pivnichny is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.]

Last month, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity. Although this post will not rehearse the reasons a treaty is needed, an eloquent case for a treaty can be found in an important 1994 article by Cherif Bassiouni.

Professor Murphy’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles for Commission’s approval. The Commission first included the topic of crimes against humanity on its Long-Term Programme of Work in 2013 on the basis of a report prepared by Professor Murphy.  This report identified four key elements a new convention should have: a definition adopting Article 7 of the Rome Statute; an obligation to criminalize crimes against humanity; robust inter-state cooperation procedures; and a clear obligation to prosecute or extradite offenders (para. 8). The report also emphasized how a new treaty would complement the Rome Statute (paras. 9-13).

The Crimes Against Humanity Intiative

One of this post’s authors, Leila Sadat, launched the Crimes Against Humanity Initiative in 2008. The Initiative set out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity. Arabic, Chinese, German and Russian translations are also available.

The Proposed Convention was elaborated to inspire and inform the debate on the substance of a new crimes against humanity convention. Drafted by experts without the constraints of government instructions (although deeply cognizant of political realities), it provides a platform for discussion by states, civil society and the International Law Commission. The Proposed Convention builds upon and complements the Rome Statute by retaining its definition of crimes against humanity while adding robust inter-state cooperation, extradition and mutual legal assistance provisions. The creative work of the Initiative was to meld provisions of the Rome Statute, other existing international instruments and new ideas into a single, coherent model treaty that firmly establishes both state responsibility and individual criminal responsibility for the commission of crimes against humanity. The Proposed Convention innovates in many respects by bringing prevention into the instrument in a much more explicit way than predecessor instruments, by explicitly providing for state responsibility, by including the possibility of responsibility for the criminal acts of legal persons, by excluding defenses of immunities and statutory limitations, by prohibiting reservations and by establishing a unique institutional mechanism for supervision of the Convention.

In May 2014, prior to the Commission’s July session, the Proposed Convention was the basis of an Experts’ Meeting held at the Villa Moynier in Geneva. At the meeting, international justice experts and members of the International Law Commission discussed the need for a new convention, key provisions and the process of building support amongst states. These discussions are summarized in a Report published on July 17, 2014.

Signs of Progress

It is encouraging to see the International Law Commission move forward with this important topic. We hope that the Proposed Convention will be useful to the ILC as a prototype of a future convention. Perhaps more encouraging have been the statements of state representatives and of legal professionals in favor of developing a crimes against humanity convention. For example, last autumn at the General Assembly Sixth Committee, states commented on the Commission’s decision to include the topic in its Long-Term Programme of Work. Most states commenting on the topic were favorable to a new crimes against humanity convention. Slovenia, for example, stated that “all efforts should be directed at filling this gap.” Austria, the Czech Republic, Italy, Norway, Peru, Poland and the United States also welcomed the decision.

Additionally, on August 12, 2014, the American Bar Association adopted Resolution 300, which urges the U.S. government to actively support the negotiation of a crimes against humanity treaty, joining a growing community of supporters. In doing so, the ABA has added its voice to dozens of experts who endorsed a treaty in the 2010  Washington Declaration and Prosecutors of the world’s international criminal tribunals who did the same in the 2010 Fourth Chautauqua Declaration and the 2009 Kigali Declaration. Such support from the professional community will be indispensable in encouraging governments to become active supporters of a treaty.

Some states, however, expressed doubts. For example, Iran stated that it “does not seem that … there is a legal loophole to be filled through the adoption of a new international instrument.” Other states questioning the need for a treaty included France, Malaysia, Romania and Russia. As work on a new treaty progresses, its supporters will need to work diligently to address these concerns.

In due course, the Commission is expected to send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. It is hoped that this work will be completed in a timely fashion and that it will inspire states to take up the challenge of negotiating and adopting a new convention on crimes against humanity. Such a development would substantially strengthen the Rome Statute system and be a crucial step in completing the Nuremberg legacy.