Sixth Committee Continues International Law Commission Review, Debating Need for Treaty on Crimes against Humanity
Members Approve Request by Group of Seven Plus for Observer Status in General Assembly
After approving without a vote a request for observer status, the Sixth Committee (Legal) continued its consideration of Cluster I of the International Law Commission’s report, with delegates debating if a convention based on the draft articles on “Crimes against humanity” was appropriate and, if so, whether the time was right for such an instrument.
At the top of the meeting, the Committee approved without a vote a draft resolution by the terms of which the General Assembly would decide to invite the Group of Seven Plus to participate in its sessions and work in the capacity of observer. Following that, it continued its consideration of Cluster I — which includes “Peremptory norms of general international law (jus cogens)” and “Other Decisions” as well as “Crimes against humanity”.
The representative of Liechtenstein, noting his support for a convention based on the draft articles on “Crimes against humanity”, pointed to the widespread misperception, in public and policy circles, that there is a hierarchy among the most serious crimes, with genocide ranking as number one. This causes complacency and counterproductive legalistic discussions, he said, calling for a convention that follows closely the Rome Statute of the International Criminal Court.
The delegate of Belarus welcomed the proposals for a diplomatic conference in Vienna to adopt such a convention, also adding his support for a working group to manage the negotiation of the instrument. Highlighting article 2, he said that while he supported its definition of slavery, it was also important to single out trafficking of persons as a separate crime against humanity because it meets the criterion for classification as such. Nevertheless, the draft articles constitute a good foundation on which to draft a convention, he said.
However, Israel’s representative said that key issues, including the definition of crimes against humanity which is still far from consensual, remain controversial. Further, the Drafting Committee had not addressed important concerns about the potential abuse of enforcement and jurisdiction mechanisms by States and other actors. The safeguard mechanisms should represent an integral part of the articles, she stressed.
The delegate of the United States also expressed doubts about a future convention, adding that for the draft articles to be successfully elaborated into an instrument, they would need to be flexible in implementation, account for a diversity of national systems and offer more clarity on key issues. He also urged the Commission to consider its workload and working methods. The difference between conclusions, principles or guidelines is not always clear, as some of these contain suggestions for new affirmative obligations of States. As well, the large number of topics on the Commission’s agenda and the tremendous resources it takes to review the voluminous materials the Commission produces were concerning.
Other delegates also raised the latter concern, with Greece’s delegate pointing out that in the last few years, the Commission has taken on a broad variety of new issues without fully satisfying the criteria for considering new topics. She urged that topics be avoided where very little State practice exists or which have not crystallized in concrete customary law rules, since such consideration risks turning the Commission into a law‑making body.
Gender parity was also a concern for the representative of Brazil, who pointed out that of the 229 members on the Commission since 1948, only seven have been women. He urged Member States to acknowledge the work needed to increase female representation in international legal bodies, including the Commission. He also noted that, for some countries, the elaboration of written comments on the Commission’s work can be a challenging task. The Commission could prepare questions requiring simple and direct answers about State practice, he proposed, also asking for more clarity on the taxonomy of its products.
The Sixth Committee also discussed the Commission’s draft conclusions on “Peremptory norms of general international law (jus cogens)”, with some delegates applauding it as a useful framework while others disagreed with certain identified norms. Another contentious issue was the idea of regional peremptory norms.
The representative of Australia voiced doubt as to the utility of further consideration of regional jus cogens given the conceptual and practical challenges involved and the possibility that the concept could undermine the universality of jus cogens.
For Ireland’s delegate, draft conclusion 3 confirmed that peremptory norms are universally applicable and therefore do not apply on a regional or bilateral basis. He also expressed concern that the non‑exhaustive list of jus cogens norms in the annex could give rise to the confusion that those included in the list are somehow being given precedence.
The representative of Federated States of Micronesia pointed out that per draft conclusion 3, the protection of natural environments is important to the entire international community. Any State failing to do so is in serious breach of jus cogens, he said, pointing to numerous examples of States engaging in massive pollution, including greenhouse gas emissions severely harmful to the atmosphere and oceans. “We as States are obligated to work together to correct harms that affect us all,” he said.
Also speaking today were representatives of the Netherlands, Argentina, Singapore, Sudan, Italy and Thailand.
The Sixth Committee will next meet at 3 p.m. on Wednesday, 31 October, to continue its consideration of topics in the first cluster of the report of the International Law Commission.
Requests for Observer Status
The Committee then approved without a vote the resolution on observer status for the Group of Seven Plus in the General Assembly (document A/C.6/74/L.2). By the terms of that text, the Assembly would decide to invite the Group to participate in its sessions and work in the capacity of observer. (For background, please see Press Release GA/L/3601.)
Statements on Cluster I
RENÉ LEFEBER (Netherlands), associating himself with the European Union, endorsed the International Law Commission’s recommendation for a convention based on the draft articles on “Crimes against humanity”. He then addressed the relationship between such a convention and the Mutual Legal Assistance initiative now supported by 69 States. Noting that the initiative and the draft articles share certain qualities, he detailed the relevant differences between the two, including the scope of the application of immunity ratione materiae, differences in approach, the framework and likely timeline for negotiations. However, they are mutually supportive and seek to fill a gap in the legal framework underpinning the fight against impunity.
Turning to “Peremptory norms of general international law (jus cogens)”, he noted that the Special Rapporteur, in his fourth report, makes reference to a remark by the Netherlands relating to the inclusion of a list of jus cogens norms in the draft conclusions. He pointed out that his Government’s proposal was misunderstood and provided an explanation thereon. The inclusion of a list of peremptory norms is not desirable, he added, as the authoritative nature of a list composed by the Commission would likely prevent the emergence of State practice and opinio juris in support of other norms.
On “Other decisions,” he said he has yet to be convinced of the need and added value of the proposal to include the topic “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”. Instead there should be better implementation of existing principles and guidelines. In addition, on “Prevention and repression of piracy and armed robbery at sea”, he noted an extensive amount of international, regional and national law regarding piracy at sea. Thus, he saw no need at this stage for further guidance or clarification. As most current incidents seem to occur within territorial seas, it would be more useful to focus on armed robbery at sea and to provide guidance for the development of domestic criminal law, he said.
Mr. OYARZABAL (Argentina), expressing support for the Commission’s work on “Peremptory norms of general international law (jus cogens)”, observed that the Commission referenced the jurisprudence of Argentina’s Supreme Court in identifying the first criteria for such norms in international customary law. Turning to the second criteria on States’ recognition and acceptance of the norm as a whole, he agreed with the criteria set forth in the draft conclusion 7 that such acceptance should be by the large majority of States, without prejudice to the fact that the practice of non‑State agents might also contribute to the evaluation of such a norm.
Turning to “Crimes against humanity”, he noted a great deal of progress since the Commission first started working on this topic. His delegation had previously offered the Commission observations with regard to adapting some definitions in accordance with recent developments in international law as well as the need to define “victims”. Affirming his support for a convention based on the draft articles, he added that a legally binding instrument in this area would shore up the international criminal law architecture. The Mutual Legal Assistance initiative, which enjoys the explicit support of over 60 countries including Argentina, is not mutually exclusive but complementary to the draft articles, he said.
SARAH WEISS MA’UDI (Israel), on “Crimes Against Humanity”, said that several concerns raised by her delegation and others were not sufficiently addressed in the documents adopted by the Drafting Committee. There was concern that enforcement and jurisdiction mechanisms could be potentially abused by States and other actors rather than employed in appropriate circumstances. Despite important clarifications provided by the Special Rapporteur, the draft articles still do not sufficiently address this issue. The safeguard mechanisms should represent an integral part of the articles. Moreover, article 6, paragraph 5 has no effect on procedural immunity and the issue continues to be governed by conventional and customary international law and obligations between States. Also, the definition of crimes against humanity is still far from consensual, she observed, reiterating the need to reach broad consensus on such key issues which remain controversial.
On the topic of “Peremptory norms of general international law (jus cogens)” she said the Special Rapporteur relied on theory and doctrine rather than relevant State practice; his analysis on norms depends on the decisions of international courts and tribunals. The lack of rigorous analysis of State practice risks undermining the legal authority and accuracy of important elements, she warned, noting that jus cogens norms and the high threshold for their identification are not always accurately reflected in Draft Conclusions. The Commission’s work on this topic should strictly reflect customary international law and widely accepted principles to enhance their credibility and facilitate wide acceptance. Moreover, draft conclusion 21 does not reflect existing international law. The topic of jus cogens should be confined to stating and clarifying international law as it currently stands.
Turning to “Sea-level rise in relation to international law”, she recognized the concrete threat posed especially to coastal areas and low‑lying countries. Welcoming the Commission’s work in this regard, she said her delegation will be following the study group’s work closely. However, any product of the study group should rely upon the application of existing principles of customary international law rather than developing new legal principles. Moreover, the work of the Commission and the study group must not undermine the delicate balance achieved by existing maritime border agreements which contribute to increased regional and international stability and cooperation.
DAPHE HONG (Singapore), speaking on the topic “Crimes against humanity”, said the draft articles should be further improved in the manner proposed by Singapore in the written comments it submitted to the Commission. For example, draft article 7, paragraph 2 only permits States to establish jurisdiction over crimes committed by a national of a State party and does not extend to establishing jurisdiction over nationals of States non‑parties. That should be expressly reflected in the text of the draft article.
Turning to the topic “Peremptory norms of general international law”, she noted her continued doubt regarding the value of draft conclusion 21. The Commission acknowledges that the equivalent provisions in the 1969 Vienna Convention on the Law of Treaties do not reflect customary international law. Thus, there is concern the text may inadvertently narrow options for Member States, especially in view of other possible avenues for peaceful settlement. Concerning the compromise solution for the non‑exhaustive list, she warned that users of that work may take the list to be closed or at least semi‑closed.
On “Other decisions and conclusions of the Commission”, she said she was interested in learning the outcome of the Commission’s discussions on methods of work, particularly as it pertains to the topics “Identification of customary international law” and “Peremptory norms of general international”. As well, regarding the outcome of the discussion on nomenclature of conclusions, guidelines and principles as outcomes, she noted that at least one syllabus for a topic added to the long‑term programme of work proposes output in the form of “draft guidelines” or “draft principles”.
MARIA TELALIAN (Greece), addressing “Crimes against humanity”, noted that jurisdiction under draft article 7 can only be exercised in respect to nationals of States parties to what may become a future convention. This understanding considerably affects the scope of States’ obligation to establish jurisdiction in the presence of the alleged offender in their territory and should have been reflected in the draft article itself or at least in the relevant commentary.
Turning to “Peremptory norms of general international law (jus cogens)”, she referred to draft conclusion 3, which provides that jus cogens norms reflect and protect fundamental values of the international community. This cardinal characteristic of norms also provides a criterion for their identification given that they should be accepted and recognized by the international community as reflecting and protecting such values. For this reason, more affirmative language should be inserted into paragraph 16 of the commentary to draft principle 3. In addition, this paragraph should be moved to the commentary to draft principle 4 dealing with the identification of peremptory norms.
With respect to “Other decisions”, she said the Commission’s selection of new topics for discussion is essential for the future of its work as well as for its credibility. However, the Commission has added a broad variety of new issues on its agenda for the past few years without fully satisfying the criteria that it has elaborated for consideration of new topics. She called on the Commission to avoid including new topics in its agenda in cases where very little State practice exists or which have not crystallized in concrete customary law rules, since this risks turning the Commission into a law‑making body.
Mr. KINGSTON (Ireland), aligning himself with the European Union, expressed support for the calls to elaborate a convention based on the draft articles on “Crimes against humanity”, preferably by an international conference of plenipotentiaries. The Commission’s work on that topic and the joint initiative for a multilateral treaty for mutual legal assistance and extradition for domestic prosecution of the most serious international crimes are complementary. Both have the potential to contribute in a practical and significant way to the fight against impunity.
Turning to “Peremptory norms of general international law (jus cogens)”, he welcomed the fact that articles 53 and 64 of the Vienna Convention on the Law of the Treaties have been central to the Commission’s examination of the topic. As well, he favours an approach which focuses on the way in which jus cogens rules are to be identified and the legal consequences flowing from them, he added. While welcoming the confirmation contained in draft conclusion 3 that peremptory norms are universally applicable and therefore do not apply on a regional or bilateral basis, he expressed concern about the non‑exhaustive list of jus cogens norms in the annex. It does not represent a comprehensive list of those norms considered by the Commission itself in its previous work and could give rise to the confusion that those included in the list are somehow being given precedence, he pointed out.
On “Provisional application of treaties”, he welcomed the inclusion of the five draft model clauses. They may constitute a useful tool for treaty negotiators in terms of having a guide for parties seeking to avail of provisional applications.
ELSADIG ALI SAYED AHMED (Sudan), aligning himself with the African Group, said that in regards to “Crimes against humanity”, the fight against impunity is a noble objective and a responsibility incumbent on national judicial systems. Commenting on several specific draft articles, he underscored that the definition of crimes under international law in article 2 was not clear enough; the definition provided could include crimes defined in treaties or conventions not linked to the draft article. All definitions that could give rise to disputes among States should be avoided, he added. A convention based on the draft articles could be useful, he observed, calling for further discussion thereon.
Turning to “Peremptory norms of general international law (jus cogens)”, he noted the fourth report’s discussion of regional peremptory norms and indicative list. On this, he said the debate around the list risks running long, adding he wondered if the norms were relevant and if consensus could be reached. He called for dialogue to continue between the Commission and the Sixth Committee, and for a balance to be struck between the progressive development of international law and the codification thereof, particularly on sensitive issues lacking consensus. The Commission should seek to explain lex lata, rather than trying to draw up lex ferenda. He also commented that it is premature to launch a study on “Universal jurisdiction" because State practice is insufficient in this area.
ANDREA TIRITICCO (Italy), speaking on “Crimes against humanity”, noted his country has always been at the forefront of international efforts to promote rule of law and accountability for the most heinous crimes. He expressed support for transforming the draft articles into an international legally binding instrument, as they address the important normative gap of horizontal judicial cooperation for prosecuting crimes against humanity.
Turning to “Peremptory norms of general international law (jus cogens)”, he noted the set of draft conclusions and commentary do not dispel doubts which his delegation expressed last year. On the legal consequences of jus cogens, he noted questions including those related to interplay between State immunity, jurisdiction and implementation of State responsibility for breaches of those rules are not addressed in the commentary. Those interconnections are of extreme importance in balancing access to remedy. In addition, the non‑exhaustive list of jus cogens norms would benefit from more extensive analysis of international jurisprudence, especially that of the International Court of Justice.
With respect to “Other decisions and conclusions of the Commission”, he said draft model clause 4 is of limited potential use when international organizations have the power to adopt binding measures regarding their Member States. He cited the clear example of the Security Council adopting measures under Chapter VII that would prevail over any opt‑out treaty clause on provisional application.
Regarding insertion of the item, “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” in the long‑term programme of work, he said the issue is particularly important given the increasing attention of the international community for accountability in grave violations of those laws.
MARIK A. STRING (United States), commenting on “Crimes against humanity”, pointed to his country’s long history of supporting justice for victims of such crimes. However, it is not yet the moment to consider negotiating a convention based on the draft articles. As currently formulated, the draft articles lack clarity with respect to a number of key issues that must be addressed in order to reach consensus among States and ensure that any future convention would be effective in practice. The draft articles also need to be flexible in implementation, accounting for a diversity of national systems, as well as States that are parties to the Rome Statute and those who are not. Further, the drafts are not sufficiently mindful of the lessons learned and reforms enacted after overbroad assertions of jurisdiction by national and international courts, he said.
Turning to “Peremptory norms of general international law (jus cogens)”, he questioned the purpose of draft conclusion 3 which appears to introduce additional criteria for the identification of such norms though the commentary indicates this was not the intent. Further, draft conclusion 5 is of limited utility, he said, adding that while general principles of law may influence the practice of States, they do not themselves constitute an independent basis for peremptory norms. In addition, while it is worthwhile to establish procedural safeguards as a check on meritless assertions of a breach of jus cogens norms, it is unclear and confusing how the proposal in draft conclusion 21 would work in practice.
Addressing “Other decisions and conclusions of the Commission”, he said his delegation is reviewing the draft clauses on “Provisional application of treaties” and will consider whether including them would provide any particular benefits. As to new topics, now might be a valuable time for the Commission to consider its workload and working methods. He also noted that he was concerned about the number of topics and the tremendous resources it takes for States to conduct meaningful review of the voluminous materials produced by the Commission. In that regard, he said that of the proposed topics, the United States would be most supportive of including “Prevention and repression of piracy and armed robbery at sea”, but not supportive of including “Reparations to individuals for gross violations of international human rights law and serious violations of international humanitarian law”.
As the Commission moves away from draft articles, he observed, its work products have been variously described as conclusions, principles or guidelines. It is not always clear what the difference is among these labels, particularly when some of these contain what appear to be suggestions for new affirmative obligations of States, which would be more suitable of draft articles. This is the case in the draft principles on protection of the environment in relation to armed conflict. It would be useful to have more transparency as to what the Commission intends by fashioning conclusions, principles and guidelines and whether any meaningful distinctions can be drawn between them.
Mr. METELITSA (Belarus), addressing “Crimes against humanity”, said that the draft articles are balanced and constitute a good foundation on which to draft a convention. He welcomed Austria’s proposal for a diplomatic conference in Vienna to adopt such a convention and the Secretariat’s proposal to organize a working group of experts to manage the negotiation of the instrument and its compatibility with relevant national law. Offering detailed commentary on certain draft articles, he noted his support for the definition of slavery in article 2, paragraph 2. However, it was also important to single out trafficking of persons as a separate crime against humanity because it meets the criterion for classification as such. He also said he did not support comment 41 to that article regarding the definition of gender. Given the sensitivity of the topic, it was appropriate to use internationally agreed-upon wording to ensure the universality of a future convention.
On “Peremptory norms of international law (jus cogens)”, he called on the Commission — when planning its further work — to focus on the fundamental aspects of the normative architecture of international law. He welcomed the draft conclusions becoming more content‑focused and balanced than previous iterations and supported their procedural nature. Concurring that these draft conclusions should be based on State practice, he also added his support to the creation of an indicative list. Nonetheless, recognizing the difficult nature of this task, he critiqued certain aspects of the Commission’s approach and suggested it look to how the International Court of Justice contemplates jus cogens norms.
Turning to “Other decisions”, he said he was not convinced that either of the new topics proposed for the Commission’s long‑term programme of work meets the requirements of the international community as a whole. The issue of “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” is diverse in nature and one of political expedience rather than legal norms. Regarding “Prevention and repression of piracy and armed robbery at sea”, the lack of national criminal legislation on this issue in some States is not sufficient justification for drawing up an international treaty. The Commission should instead focus on common issues of international law — guided by trends of interest to all States — such as the right to develop in the context of the Sustainable Development Goals and the legal aspects of artificial intelligence and other new technology.
GEORGE RODRIGO BANDEIRA GALINDO (Brazil) recalled that of the 229 members on the Commission since 1948, only seven have been women. He urged Member States to acknowledge that work remains to be done to increase female representation in international legal bodies, including the Commission. He also called for the rules governing the Commission’s elections to be revisited; it should be up to Member States to define that body’s composition. As well, while the current process of written comments and annual debates create space for fruitful interaction, the General Assembly could provide more guidance and the Commission could prepare questions requiring simple and direct answers about State practice. For some countries, the elaboration of written comments on the Commission’s work can be a challenging task. In addition, the Commission should provide more clarity on the taxonomy of its products.
Turning to “Crimes against humanity”, he said that measures to prevent and punish these crimes must conform to international law, including the general prohibition against the use of force. He welcomed the detailed provisions on mutual legal assistance in article 14 and in the draft annex; comprehensive cooperation among States at all stages of the law enforcement process is crucial. He also joined the large number of States favouring the elaboration of a convention based on the draft articles and called for negotiations thereon to take place in the General Assembly to engage the entire community of nations. On next steps for the articles, he pointed to the need to address the relation between universal jurisdiction and the jurisdiction of the International Criminal Court and to include safeguards to prevent abuses of the universality principle.
On “Peremptory norms of general international law (jus cogens)”, he commended the Commission and the Special Rapporteur for finding a creative way to balance the competing interests of the value of an illustrative list on the one hand and the methodological nature of the topic on the other. The list, however, should reflect terms the Commission uses; on this, he joined previous speakers in favouring the replacement of the expression “prohibition of aggression” with “prohibition of the use of force”. Only those norms accepted and recognized by a large majority of States as jus cogens should be considered as such.
Regarding “Other decisions”, he endorsed the inclusion of “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”, highlighting its close link to the Commission’s work in other topics, such as jus cogens and general principles of law. Among topics already inscribed in the long‑term programme of work, he called on the Commission to include “Extraterritorial jurisdiction” in its active agenda.
Mr. AITKEN (Australia) welcomed the Commission’s adoption of its draft articles on “Crimes against humanity” and noted the recommendation that States elaborate a convention on the basis of these articles. Such an instrument could play a role in closing the gap in the current structure of conventions regarding serious international crimes, he observed, expressing an openness to continuing discussions with other States in this regard.
Turning to “Peremptory norms of general international law (jus cogens)”, he said the draft conclusions provide a useful framework to assist with the identification of such norms. However, there was some doubt as to the utility of further consideration of regional jus cogens given the conceptual and practical challenges involved and the possibility that the concept could undermine the universality of jus cogens. Further, he remained unconvinced of the practical value of the non‑exhaustive list of norms in conclusion 23, he said.
CLEMENT YOW MULALAP (Federated States of Micronesia), commenting on “Peremptory norms of general international law (jus cogens)”, said the protection of natural environments is important to the entire international community in accordance with draft conclusion 3. He said by logical extension, in line with draft conclusions 17 and 19, each State is obligated to the international community to take all necessary steps to safeguard and preserve natural environments important to humankind. Any State failing to do so is in serious breach of jus cogens and must cooperate through lawful means to correct it. Unfortunately, there are numerous examples of States engaging in massive pollution without taking steps to curb it, including greenhouse gas emissions severely harmful to the atmosphere and oceans. “We as States are obligated to work together to correct harms that affect us all,” he said.
He welcomed the Commission’s decision to place on its long‑term programme of work “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”. He noted that footnote 16 in the syllabus asserts that the Commission’s focus on those topics may influence other separate areas including international environmental law, but there is a growing global acceptance that a healthy environment is a human right.
CHRISTIAN WENAWESER (Liechtenstein) said the Commission’s work on “Crimes against humanity” has the potential to elevate the importance of this horrific set of crimes. There is a misperception among the wider public and even among policymakers that there is a hierarchy among the most serious crimes, with genocide ranking as number one. While, historically, genocide is at the core of crimes against humanity, this can be misleading since it causes complacency in decision‑making because of counterproductive legalistic discussions. Therefore, working towards a convention on crimes against humanity is very important to ensure appropriate action is taken to ensure justice for the victims of all atrocity crimes.
Highlighting the fact that the draft articles are based on the Rome Statute of the International Criminal Court, he said that model should be followed more closely in a future convention. However, there was concern that because the draft articles do not include a no‑reservations clause, the possibility of making reservations to this short and concise treaty can be very detrimental to its effectiveness and value. Also expressing concern about the lack of a clear statement that there can be no immunities for crimes against humanity, he said the draft articles would benefit greatly from clear language in this respect. At the same time, he applauded the language concerning international cooperation, including in particular with international accountability mechanisms.
VILAWAN MANGKLATANAKUL (Thailand), commenting on “Crimes against humanity”, recognized the necessity of draft article 4 that addresses preventive measures and international cooperation to prevent such crimes. She expressed support for draft article 10 on the obligation to prosecute or extradite (aut dedere aut judicare), and for draft articles 13 and 14 on extradition and mutual legal assistance.
Turning to “Peremptory norms of general international law (jus cogens)”, she commented on draft conclusion 7, noting that because of the principle’s extraordinary legal effects, caution was needed around “acceptance and recognition by the international community of States as a whole” criterion. The threshold had been raised to a very large majority of States, yet it still needed to be further clarified and deliberated upon in order to determine whether or not it was sufficient. As for draft conclusion 23 and its annexed non‑exhaustive list of jus cogens, she reiterated that creating a list might hinder the dynamic evolvement of the principle.
On the Commission’s long‑term programme of work, she noted her appreciation for the inclusion of “Sea‑level rise in relation to international law”. The work will be very critical, in particular with the legal implication of sea‑level rise and the Law of the Sea, maritime boundaries and the protection of persons affected by the phenomenon.