16 Apr Closing a Legal Gap on Crimes Against Humanity
[Melissa Hendrickse (Twitter: @melhendrickse) is a legal adviser at the International Secretariat of Amnesty International, focusing on the intersection between racial and international justice. She has a background in critical race theory, third world approaches to international law and international human rights law. She is based in South Africa.]
This April, UN member state delegates gathered in New York to start considering the Draft Articles on Prevention and Punishment of Crimes against Humanity at the UN General Assembly’s Sixth (Legal) Committee. The meeting represented an important step in the path towards the development of an international treaty specifically on crimes against humanity. The Draft Articles were adopted by the International Law Commission (ILC) in 2019 already, after six years of discussion, but further action by states was blocked since by geopolitical wrangling in the Sixth Committee. This only changed in late 2022. It does not seem far-fetched that Russia’s full-scale invasion of Ukraine earlier that year contributed to renewed interest in this topic and the desire to move forward.
What Are the Draft Articles and Why Do They Matter?
Crimes against humanity refer to those crimes sufficiently grave as to “deeply shock the conscience of humanity” (preamble to the Draft Articles). They include, among others, murder, enforced disappearance, extrajudicial executions, torture, persecution, rape and other forms of sexual violence, and apartheid, when knowingly committed as part of a widespread or systemic attack against a civilian population, during peace or wartime.
The need for an international treaty that offers new possibilities for both preventing crimes against humanity and ensuring justice, truth and reparation for victims remains as urgent as ever. From Ukraine to Ethiopia, Myanmar to Israel and the Occupied Palestinian Territories, and Venezuela to China, crimes against humanity continue to “persist with horrifying ubiquity.” In its recent Annual Report 2022/23, Amnesty International listed at least ten ongoing situations involving crimes against humanity globally. This treaty would also provide the means to combat any perception of “Western double-standards” by providing a framework enabling all countries, including in the Global South, to prosecute suspected perpetrators of crimes against humanity themselves. That this is an opportunity rather than a threat for smaller and mid-sized countries has been recognized by those states leading and supporting the current drive.
Unlike other crimes under international law, such as genocide, torture, enforced disappearance, and apartheid, there is no specialized international treaty on crimes against humanity. If adopted, such a treaty would codify state obligations to prevent, investigate and prosecute crimes against humanity at the national level, including by incorporating these crimes in their national legal systems – closing an existing gap in the architecture of international criminal law. Although the Rome Statute of the International Criminal Court (ICC) includes crimes against humanity, it does not expressly cover prevention, nor does it impose, strictly speaking, a direct obligation on state parties to cooperate between themselves in respect of the prohibition or the prosecution of crimes against humanity. The Rome Statute was also adopted 25 years ago. The Draft Articles pose an opportunity to remedy some of the compromises made at the time, and to reflect the progression of international law since.
The Present Draft
The Draft Articles contain a number of positive provisions which offer new, progressive standards of international law. In particular, the decision by the ILC to omit the outdated and flawed definition of gender contained in the Rome Statute is to be celebrated. This definition (“the two sexes, male and female, within the context of society”) reduces gender to a male/female binary based on sex assigned at birth and fails to fully acknowledge the social construction of gender. If the treaty is to be an effective tool in fighting sexual and gender-based violence, then a proper understanding of gender is essential.
Another welcome provision is the inclusion, in the preamble to the Draft Articles, of a recognition that the prohibition of crimes against humanity constitutes a peremptory norm of international law (jus cogens). Other notable provisions include the obligation on states to not only to punish but to take measures to prevent crimes against humanity (Draft Article 4); that now civilian superiors are held to the same standard of responsibility as military commanders (Draft Article 6(3)); and the obligation on states to extradite or prosecute persons suspected of criminal responsibility for crimes against humanity (Draft Article 10).
Amnesty International’s Recommendations
Amnesty International recently renewed its recommendations to states ahead of the Sixth Committee session on the Draft Articles. These include calls to incorporate strong rules on the non-application of statutory limitations, fair trial rights of accused persons, and the prohibition of military courts. Among provisions that would particularly benefit from amendment are those on the crime against humanity of persecution, the rights of victims, and the prohibition of amnesties. Amnesty also suggests that crimes of sexual violence in the Draft Articles are revisited.
One of Amnesty’s key recommendations concerns the present problematic formulation of the crime against humanity of ‘persecution’ contained in the Draft Articles. In its current form, the Draft Articles define the crime against humanity of persecution as follows:
“Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or in connection with the crime of genocide or war crimes.” [emphasis added]
This means the Draft Articles require that persecution be committed in connection with specific others crime under international law to qualify as the crime against humanity of persecution (‘the connection requirement’). The consequence of this requirement is that persecution cannot be prosecuted autonomously, despite the criminality inherent in this particularly heinous form of discrimination.
Although the present definition follows nearly verbatim the definition of persecution contained in the Rome Statute, it is not consistent with customary international law as it stands. The ‘connection requirement’ is not reflected in major precedents from international tribunals or leading international law scholarship on the crime against humanity of persecution. In fact, this jurisdictional threshold is specific to the Rome Statute and as such the exception, not the rule. Amnesty International agrees that persecution constitutes a separate crime against humanity, independent of the other crimes and, therefore, may be committed even in the absence of other crimes (as long as the acts of the accused are part of a pattern of widespread or systematic crimes directed against a civilian population.) As such, its prosecution should be de-linked from other potential charges, and the Draft Articles aimed at national implementation should follow the customary international law binding on all states, rather than the restrictive formulation specific to the ICC.
Another critical recommendation put forward by Amnesty relates to the rights of victims of crimes against humanity to a remedy and reparation, and especially to fully participate in proceedings. Victims play a critical role in investigations and prosecutions of crimes under international law, including crimes against humanity, before international and domestic tribunals. Without the courage and determination of victims who act as complainants or witnesses, many cases would never reach trial. As such, the need to support, protect, and empower victims is crucial to the effective investigation and prosecution of crimes against humanity.
At present, the Draft Articles do not include a definition of ‘victims.’ Amnesty proposes that, rather than leaving the interpretation of ‘victims’ to individual states, the Draft Articles should contain a comprehensive definition of victim (similar, for example, to the one set out in the ICC Rules of Procedure and Evidence). Moreover, the Draft Articles should be expanded to further strengthen and protect the rights of victims to participate in the investigation and prosecution of crimes against humanity. To this end, Amnesty recommends including in the Draft Articles the requirement that state parties inform victims of the progress and results of investigations, that they should be able to fully contribute to an investigation, and be provided with legal representation.
Finally, in order to serve as a truly effective tool against impunity, the Draft Articles should prohibit the granting of amnesties to those suspected of criminal responsibility for crimes against humanity. Many international, regional and national tribunals have ruled that the non-application of amnesties for those suspected of criminal responsibility for crimes under international law, including crimes against humanity, is part of customary international law. Amnesty therefore urges states to incorporate a new provision in the Draft Articles whereby amnesties and other similar measures of impunity are explicitly prohibited.
Crimes of Sexual Violence
The Draft Articles recognize several crimes of sexual violence as crimes against humanity, including rape, sexual slavery and enforced prostitution (Draft Article 2(1)(g)), in the same way as the Rome Statute. Civil society actors have called for the additional specific listing of further crimes, such as forced marriage and forced abortion, reflecting developments since the Rome Statute was adopted and recognizing that in many of these cases the legal interest protected goes beyond the criminalization of sexual violence.
Among those listed is the crime of forced pregnancy, defined as the “unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law” (Draft Article 2(2)(f)), again replicating the Rome Statute. Forced pregnancy as a crime in the Rome Statute recently saw its ground-breaking first successful prosecution upheld in the ICC appeals judgment of December 2022 in the Ongwen case, in which the Appeals Chamber confirmed that the “crime of forced pregnancy seeks to protect, among others, the woman’s reproductive health and autonomy and the right to family planning.”
Notably, the definition of forced pregnancy in the Draft Articles also carries forward the problematic qualification contained in the ICC rule that “[this] definition shall not in any way be interpreted as affecting national laws relating to pregnancy.” It is the only crime in the Draft Articles that is subject to such a caveat. The Appeals Chamber confirmed in Ongwen that this provision was inserted to alleviate concerns by some states during the negotiations of the Rome Statute that the forced pregnancy provision might be construed as interfering with states’ approaches to abortion, but also that the consideration of a state’s national laws relating to pregnancy is not required when assessing the crime of forced pregnancy at the ICC. Civil society organizations have argued that the present formulation undermines the rights of victims of forced pregnancy to an effective remedy. Amnesty International suggests that the issue of crimes of sexual violence – and gender more broadly – in the Draft Articles should be revisited, to increase awareness for this type of crimes, to enable all survivors of sexual violence to have their rights upheld, and to make sure that any future convention reflects the highest standards of international law.
Although the eventual adoption of a treaty on crimes against humanity may still be years away, the resumed session of the Sixth Committee in mid-April represented a welcome departure from the previous three years during which the Draft Articles were stalled in that forum. These delays were largely the result of political manoeuvring within the Committee and attempts by some states to obstruct progress. Following this session, states will have an opportunity to submit comments to the Sixth Committee until December 2023 before another resumed session of the Sixth Committee takes place in April 2024. Only then will states decide if they move further towards adoption of a new convention.
The Sixth Committee session presents an invaluable opportunity to shape any future international treaty on crimes against humanity so that it can be an effective tool to ensure justice, truth and reparation for those crimes that shock the conscience of the international community. States from all regions should support it.
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