Speakers Argue over Codifying International Law Commission Draft Articles on Crimes against Humanity, as Sixth Committee Resumes Session
As the Sixth Committee (Legal) resumed its session on agenda item, “Crimes against humanity”, delegates debated whether a new convention on such crimes would close gaps in the current international legal framework and if that instrument, based on the draft articles by the International Law Commission, should be inspired by existing texts, including the Rome Statute of the International Criminal Court and international conventions addressing genocide and torture.
Opening the session, Pedro Comissário Afonso (Mozambique), Chair of the Sixth Committee, noted that the Committee would carry its mandate in two rounds over two years, based on five thematic clusters of provisions. He introduced the new “interactive format” of deliberations, which would allow delegations, after hearing interventions, to ask for further clarifications and express their views in relation to that statement
He also called for a minute of silence in memory of Benjamin Berell Ferencz, one of the prosecutors at the Nuremberg Trials and a proponent for establishing the International Criminal Court, adding that the fight for justice and against impunity became Mr. Ferencz’s life’s calling. “As we embark this week on the next phase of the work of the United Nations on crimes against humanity, let us resolve to honour the memory of Ben Ferencz and his life-long commitment to the pursuit of international justice,” he stressed.
As the meeting unfolded, many delegations also paid tribute to Mr. Ferencz, while tackling the complex issue of not only defining crimes against humanity, but also debating over the best approach to ensuring the prevention and prosecution of such crimes.
The representative of the European Union, in its capacity as observer, urged the Committee to draw inspiration from Mr. Ferencz’s “plea of humanity to law” credo: “Never give up. Never give up. Never give up.” Acknowledging an important normative gap in international treaty law regarding crimes against humanity, she said the International Law Commission draft articles — that take inspiration from and replicate provisions on prevention, punishment and inter-State cooperation existing in other treaties — constitute an important and solid basis for an international convention.
The representative of Sierra Leone, noting that a future convention “would be a gap-filling one”, said that such an instrument should primarily codify existing customary international law and include aspects of progressive development. Outlining the Rome Statute as the starting point for a future treaty, he said the proposals towards that end must fully respect the Statute’s integrity, which he recalled was a “necessary negotiated compromise amongst States”.
Colombia’s representative, recalling that her country had suffered from the “horrors of armed conflict”, stressed that the International Law Commission’s draft articles are not incompatible with the Rome Statute; rather, they are a complement with a different scope of application. Should the draft articles become a convention, they will contribute to accountability and the fight against impunity, she added.
The delegate of Brazil said that a new convention would not overlap with the Rome Statute, but, instead, bring an indispensable complement to the work of the International Criminal Court. Suggesting that the language of the preamble be incorporated in the spirit of the preambular paragraphs of the Rome Statute, he also welcomed that the draft articles take into consideration the definition of crimes against humanity set forth in it.
However, the representative of Cameroon, while acknowledging that the preamble is strongly inspired by the Rome Statute, pointed out that it could further complicate the modalities of building legal edifice, since the Rome Statute, to date, has only been acceded by fewer than two thirds of United Nations Member States. He also warned that, if the Committee is confined to the “strait jacket” of the Rome Statute, it runs the risk of having interminable work and greater misunderstanding.
Similarly, Cuba’s representative noted how the legal basis used in the Commission’s draft articles for the definition of crimes against humanity is related to the Rome Statute, to which several States, including Cuba, are not a party. Therefore, they cannot be forced to negotiate the exact references to issues regulated by the Statute, he said.
As well, India’s delegate, pointing out that several countries in Africa and Asia, including her country, are not parties to the Rome Statute, said that the draft articles, inspired by the Statute and the Convention on the Prevention and Punishment of the Crime of Genocide, are neither new nor universal. She said her delegation was not in favour of simply transposing already-existing regimes into a new convention.
The representative of China said the draft articles proposed by the International Law Commission are not a zero draft for a future convention. If an international convention is to be concluded in the future, the principles of sovereign equality and non-interference in internal affairs must be included in clear language in the preamble and the articles. That spirit must be the guiding element throughout the convention.
Chile’s delegate, outlining how preambular paragraph 7 offers consistency between the new convention and the Rome Statute, said it does not affect the State parties to the Rome Statute, but, rather, offers a substantive definition in line with general international law. Further, its inclusion would not have an effect of accepting the International Criminal Court’s jurisdiction.
However, the representative of the Gambia, underlining the lack of progress made by the Sixth Committee on the Commission’s finished products, warned Member States against getting “lost in loose technical debate”. He called on them to dare to be different in their pursuit of the progressive development of international law, as well as the protection and promotion of human rights guiding principles, be it nationally or internationally. “Delegates’ fight to end crimes against humanity must unite Member States, not divide them,” he stressed.
Also speaking today were representatives of Denmark (also for Finland, Iceland, Norway and Sweden), Latvia (also for Estonia and Lithuania), Egypt, Philippines, Germany, Spain, Czech Republic, Malta, United Kingdom, Iran, Netherlands, Hungary, Portugal, Slovakia, Italy, Türkiye, Australia, Ireland, El Salvador, Israel, Ecuador, Saudi Arabia, Indonesia, Austria, Romania, Japan, United States, Slovenia, Poland, Mexico, Qatar, Bangladesh, South Africa, Sri Lanka, Russian Federation, Belgium, Syria and Lebanon.
The Sixth Committee will meet next at 10 a.m. on Tuesday, 11 April, to continue its work.
PEDRO COMISSÁRIO AFONSO (Mozambique), Chair of the Sixth Committee, opened the Committee’s resumed session for the seventy-seventh session of the General Assembly to continue its consideration of agenda item 78, “Crimes against Humanity”. The Committee will exchange substantive views on all aspects of the draft articles and will consider the recommendation of the International Law Commission for the elaboration of a convention on the basis of the draft articles. Detailing the programme of work, he said the Sixth Committee would carry out its mandate in two rounds, with the first exchange of views on the entire draft articles on prevention and punishment of crimes against humanity held in 2023, and the second — including a full debate on the matter — at a resumed session in 2024. The debate will be structured based on five thematic clusters of provisions and will hear oral reports of the co-facilitators at the final session. Noting that a similar programme is being proposed for the resumed session in 2024, he reported that more time will be allocated for the debate on the Commission’s recommendation.
The Bureau is proposing a technical report with an annex containing a summary of the deliberations at both sessions, which will be considered for adoption and inclusion in the Committee’s written summary as a whole, he continued. Giving an overview of the meeting procedures, he introduced the “interactive format” that would allow delegations, after hearing interventions, to ask for further clarifications and express their views in relation to that statement. They may also request the floor to speak, without restriction on the number of interventions. The delegation whose statement is the subject of the interactive format may respond to any and all interventions, without restriction on the number of such responses. Spotlighting the key role of co-facilitators in guiding deliberations, including their interactive aspect, he said they would also facilitate the intersessional substantive dialogue.
SARAH ZAHIRAH RUHAMA (Malaysia), Rapporteur for the Sixth Committee and a co-facilitator, speaking also for the other co-facilitators — Edgar Daniel Leal Matta (Guatemala) and Anna Pála Sverrisdóttir (Iceland) — said they would aim at capturing the points expressed in formal and informal parts of the session, while preparing oral reports. “We will endeavour to make this an inclusive and welcoming space for all delegations,” she said.
The Committee then approved the proposed programme of work and working arrangements for the resumption of its session at both the seventy-seventh and seventy-eighth sessions of the General Assembly.
Thematic Cluster 1: Preamble and Draft Article 1
SIMONA POPAN, representative of the European Union, in its capacity as observer, emphasized that crimes against humanity are one of the core international crimes. However, unlike genocide and war crimes, they are not covered by a dedicated international convention, although they are not a “lesser evil”, nor do they inflict less harm or pain on civilian populations. There is, therefore, an important normative gap in international treaty law that should be filled. A convention will strengthen prevention and punishment at the national level while also promoting inter-State cooperation in the investigation and punishment of perpetrators of crimes against humanity. The International Law Commission draft articles are an important and solid basis for such an international convention. They take inspiration from and replicate provisions on prevention, punishment and inter-State cooperation existing in other treaties, such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the 2003 United Nations Convention against Corruption. Further, the draft articles — the result of five years of intense work by the Commission — do not raise entirely novel issues.
Citing the preamble, she noted that crimes against humanity have devastating consequences for civilian populations that deeply shock the conscience of humanity. Such unspeakable atrocities cannot go unpunished. Prohibition of crimes against humanity is a peremptory norm of international law, as clarified by the Commission in its work on jus cogens. It is the duty of every State to exercise its domestic criminal jurisdiction over those responsible for international crimes, thus reflecting the well-established principle that protection of population lies primarily with each individual State. Draft article 1 clarifies the material scope of the convention as applying to the prevention and punishment of crimes against humanity, while matters not regulated by a convention would continue to be governed by other rules of international law, including customary international law. Codification of existing law was not the objective of the draft articles, she added. Rather, the objective was the drafting of articles that would be both effective and acceptable to States. Paying tribute to Mr. Ferencz, she urged the Committee to draw inspiration from his “plea of humanity to law” credo: “Never give up. Never give up. Never give up.”
SIGRID WALSOEE SOERENSEN (Denmark), speaking also for Finland, Iceland, Norway and Sweden, said the elaboration of a new convention on the prevention and punishment of crimes against humanity is long overdue, adding that the draft articles serve as a solid basis for such a convention. A new convention would fill a gap in the international treaty framework, as well as strengthen the international criminal justice system and the ability of States, at the national level to prevent and punish these horrendous crimes. It would also promote much needed inter-State cooperation and thereby ensure more effective and efficient investigations and punishment of perpetrators.
The preamble provides a balanced and well-written conceptual framework for the draft articles, she continued, adding that it sets out the historic and legal context of the draft articles. It also highlights the connection to the maintenance of peace and security and affirms that crimes against humanity must be prevented in conformity with international law. As well, it notes that prevention is advanced by putting an end to impunity for the perpetrators of such crimes. Crucially, it recalls that the prohibition of crimes against humanity is a peremptory norm of international law. Both the prevention and punishment of crimes against humanity are vital. The two-fold purpose of the draft articles is necessary to shape the instrument most needed to end these atrocities. As highlighted by the preamble, the obligations to prevent and punish go hand in hand, she stressed.
ELVIRA CUPIKA-MAVRINA (Latvia), speaking also for Estonia and Lithuania and aligning herself with the European Union, said that the International Law Commission’s draft articles provide an important, solid basis for an international convention on this matter. Recalling the words of the preamble’s first paragraph, she said that, “as we speak”, people are still falling victim to serious international crimes that deeply shock the conscience of humanity. The Russian Federation’s transfer and deportation of Ukrainian children violates international human-rights and humanitarian law, and the International Criminal Court has issued warrants in connection with these alleged crimes. Further, acts of torture and attacks on energy infrastructure during freezing temperatures committed by the Russian Federation’s armed forces may amount to crimes against humanity.
She went on to underscore that too many generations have suffered — “and so many more will” — if the international community does not adopt a legal framework governing such heinous acts of violence. She therefore welcomed all preambular paragraphs to be adopted as presented today, noting that the underlying reasoning for doing so is clearly written in the last preambular paragraph: “because crimes against humanity must not go unpunished”. She also welcomed draft article 1 in its current form, as it can help ensure that those who commit such crimes do not escape justice. That draft article is applicable to both prevention and punishment of crimes against humanity, focuses solely on such crimes and would provide guidance and clarity in this area, she added.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), acknowledging wide gaps between Member States on many aspects of the draft articles, spotlighted a “delicate compromise” crafted by the Sixth Committee to allow for more discussion. Noting that resolution 77/249 created a clear process for the consideration of the articles during the two resumed sessions, he said it was designed to avoid any predetermined or premediated outcome at the seventy-ninth session. Encouraging delegations to engage in deep and meaningful substantive discussions, he said States should avoid pursuing predetermined outcomes and rather strive to identify areas of convergence and attempt to resolve any differences in views. Turning to Cluster 1, he suggested that the reference to the International Criminal Court’s statute in the preamble be eliminated, since the instrument does not enjoy universal membership. Further, the preambular paragraph on the “duty of every State to exercise its criminal jurisdiction with respect to crimes against humanity” should be constrained to cases where a clear nexus is established between the State exercising jurisdiction and the crime.
ARIEL RODELAS PENARANDA (Philippines) spotlighted certain concerns raised by his delegation during previous deliberations, including on State sovereignty, overbroad assertions of jurisdiction and politicization of human rights. In general, the preambular provision tracks closely the language of the Rome Statute on several preambular paragraphs, defining the treaty’s context and objectives. Citing article 31 of the 1969 Vienna Convention on the Law of Treaties, he noted that determination of the meaning of a particular provision is based on an examination of the treaty text as a whole, including the preamble. Should the Committee decide to adopt these preambular provisions, discussions must provide a distinct context and make clear that it is not merely appropriating these preambular provisions. Recalling the Commission’s important work on the identification of jus cogens, he affirmed that, if its criteria are met, the Philippines can support the inclusion of preambular paragraph 4. His delegation is further ready to support stronger language on international cooperation in preambular paragraph 10, including based on what is present in similar conventions, such as the Convention on Genocide. On article 1, on the “scope of application”, he expressed support for the current language with the understanding that draft articles are meant to apply in two parts: prevention and punishment.
MICHAEL HASENAU (Germany), associating himself with the European Union, said his country attaches great importance to the project of a convention on crimes against humanity, based on the International Law Commission’s draft articles. As there is currently no global convention governing the prevention and punishment of crimes against humanity, a new convention would complement treaty law on the most serious crimes and foster inter-State cooperation with regard to their prevention, investigation, prosecution and punishment. He called on Member States to close this gap to strengthen accountability and bring such crimes to justice universally, particularly by promoting prevention and punishment at the national levels as stipulated in the title and article 1 of the draft articles. As concerns and suggestions by various partners have been thoroughly evaluated and discussed, it is time to move forward and to proceed with elaborating a convention on this solid basis. France and Germany organized a workshop on the project of a convention on 13 and 14 March in New York, he said, noting that the report on the workshop was circulated to all missions.
ANA JIMENEZ DE LA HOZ (Spain), aligning herself with the European Union, observed that the Committee’s interactive format allows for real debate and for the largest number of positions to be expressed. The International Law Commission’s draft articles provide a good foundation for such debate, as they contain important elements such as definitions, provisions to introduce crimes against humanity into domestic legislation and measures to facilitate international cooperation in this area. Noting that delegations are “not here to negotiate, but to establish a common framework for understanding”, she said she looked forward to hearing Member States’ positions, concerns and questions. She also welcomed that the draft articles’ definition of crimes against humanity coincides with the one present in the Rome Statute, stressing that international criminal law must avoid fragmentation. The Committee should move forward with two objectives in mind — accountability and prevention, she stressed.
EMIL RUFFER (Czech Republic) observed that many draft provisions were modelled on the existing provisions of other multilateral conventions that were supported by States. He expressed appreciation that the articles were prescriptive in nature and enabled States to implement them in their legal systems and practices. Further, the preamble properly encapsulates the basic principles for the future convention; it characterizes the prohibition of crimes against humanity as a peremptory norm of general international law (jus cogens). Article 1 reiterates the scope of the draft articles indicated by their title and emphasizes their importance along with two primary purposes: prevention and punishment of crimes against humanity. The article also provides general orientation to the whole set of the draft articles, he added, noting that similar provisions are also included in article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide.
Ms. SIMAN (Malta) pointed out that, for many years, the work of the International Law Commission would “hit a glass ceiling in the Committee”. The preamble defines context and objectives and plays an important role when applying the treaty, especially in cases of any disputes when the treaty is being carefully read by judges and intervening parties. Further, the preamble is, overall, reflective of the conceptual framework of the draft articles, drawing its inspiration from the preambles used in international treaties, including the 1948 Genocide Convention, which has 153 State parties, and the Rome Statute, which has 123 States parties. Thus, the preamble builds upon undeniable political and legal concepts commonly agreed upon by the wider United Nations membership, namely: the most serious crimes of international concern must not go unpunished, requiring international cooperation; and that it is the duty of every State to exercise its criminal jurisdiction over those responsible for such international crimes. She expressed support for the wording of article 1 on the scope of the draft articles, as they refer to prevention and punishment of specific international crimes which can be committed during peace and wartime, filling in an important normative gap.
LIU YANG (China) said the draft articles proposed by the International Law Commission are not a zero draft for future convention negotiations nor is the discussion carried out by the Committee’s resumed session a convention negotiation. Whether, when and how to conclude a convention needs to be further discussed and decided upon after the conclusion of the Committee’s two resumed sessions in a consensual-based manner, he added.
ZHAO YANRUI (China) said that, while her delegation understands the intention of the third preambular paragraph regarding crimes against humanity and the principle of international law, the relevant formulation is too vague and not clear or specific enough. The principles of sovereign equality and non-interference in internal affairs must be included in clear language in the preamble and the articles. If an international convention is to be concluded in the future, those two principles and their spirit should become the guiding elements throughout the convention, she said, pointing out that, in recent years, certain countries for political purposes have made arbitrary accusations of crimes against humanity against other countries in attempt to interfere in other States’ internal affairs and exert political pressure. This practice completely deviates from the original purpose of prevention and punishment of crimes against humanity, she stressed.
LUCIA TERESA SOLANO RAMIREZ (Colombia) said that, while her country has suffered from the “horrors of armed conflict”, it can speak with the moral authority that comes from confronting — and learning from — serious challenges. The draft articles correctly focus on effective prosecution of crimes against humanity through the adoption of domestic measures and the promotion of international cooperation. Because there are still gaps in these areas, States would benefit from a legally binding international instrument on this topic. Turning to the draft articles, she welcomed their characterization of crimes against humanity as a jus cogens matter, as such crimes threaten peace, security and well-being throughout the world. She also noted that draft article 1 is inspired by the Convention on the Prevention and Punishment of the Crime of Genocide, and thus, represents a clear continuation of norms already accepted by the international community. Further, the draft articles are not incompatible with the Rome Statute; rather, they are a complement with a different scope of application. Should the draft articles become a convention, they will contribute to accountability and the fight against impunity, she added.
CHANAKA WICKREMASINGHE (United Kingdom), noting that his country sees benefits in developing an extradite-or-prosecute convention in respect of crimes against humanity, said it could strengthen international and domestic laws in relation to such crimes. Turning to the preamble, he suggested changing paragraph 1 so that it refers to “people” as a whole rather than “children, women and men”. He encouraged the views of the other Member States on including language in the preamble around the importance of a survivor-centred approach to punishing crimes against humanity and including a reference to reparation for material and moral damage, further elaborated in article 12(3). On preambular paragraph 7, he said it could be expanded to refer to the fact that that provision was based on the work of the Commission and State practice at the time it was negotiated. Noting that preambular paragraph 8 “foreshadows” draft articles 8 to 10, he suggested reformulating the provision to recall “the primary importance” of States exercising their criminal jurisdiction with respect to crimes against humanity.
MOHAMMAD GHORBANPOUR (Iran) said that, given the importance of international instruments’ preambular sections, such sections should be streamlined, concise and encompassing. Further, it should recall the principles and purposes of the Charter of the United Nations, including the principle of non-intervention in the internal affairs of States. This is the most relevant principle of the Charter to the draft articles, which are also included in the resolution “Consideration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations” (document A/RES/18/1966). Moreover, all relevant principles of international law pertaining to the draft articles, including immunity of State officials and immunity of States and their properties, have not adequately been incorporated in the Charter. He therefore suggested deleting the last part of the preamble's third paragraph, which subsequently reads “Recalling the relevant principles of international law…”. There is no legal loophole regarding the criminalization of crimes against humanity in international law due to the existing instruments. In that regard, he proposed either deleting the reference to article 7 of the Rome Statute or replacing the word “considering” with the word “noting” in the preamble’s seventh paragraph.
WIETEKE ELISABETH CHRISTINA THEEUWEN (Netherlands), associating herself with the European Union, said that the collective attempt should be to find areas of convergence. However, it is particularly important to agree on a convention considering that the prohibition of crimes against humanity, like the prohibition of the crime of genocide, is a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States. As such, she welcomed the clauses on the jus cogens character of the prohibition of crimes against humanity in paragraph 4 of the preamble. Turning to paragraph 7 of the preamble, she said that drawing from existing legal instruments can provide a good model for the definition of crimes against humanity. In that regard, she voiced support for the International Law Commission largely retaining the definition of crimes against humanity contained in the Rome Statute. The draft articles and a possible future convention should apply to both the prevention and punishment of crimes against humanity. Her delegation, in preparing for its commentary to the draft articles, always seeks advice from an independent advisory body, the Advisory Committee on Questions of International Law, she pointed out, noting that her delegation will refer to this body in its interventions.
VICTOR SILVEIRA BRAOIOS (Brazil) said that a convention on the prevention and punishment of crimes against humanity could serve as an important addition to the current framework of international law. Such a convention would not overlap with the Rome Statute. Rather, it would bring an indispensable complement to the work of the International Criminal Court by ensuring accountability for these serious crimes at the national level. He also stressed that the views his delegation will express during this resumed session in no way prejudge the approach Brazil will take during future negotiations regarding this international convention. Turning to the preamble, he suggested that language be incorporated — in the spirit of the preambular paragraphs of the Rome Statute — that refers to the principles of the Charter relating to the prohibition against the use of force and to non-intervention in States’ internal affairs. He said that doing so would dispel fears of misuse of allegations of crimes against humanity as a pretext for aggression or such interference, thereby facilitating universal adherence to a future convention on such crimes. He also welcomed that the draft articles take into consideration the definition of crimes against humanity set forth in the Rome Statute.
Mr. MAGYAR (Hungary), associating himself with the European Union, outlined the efforts of the International Law Commission in adopting the draft articles on prevention and punishment of crimes against humanity in 2019, stressing it was time to take further steps towards negotiating and adopting an international legally binding instrument. Paying tribute to Benjamin Ferencz, a leading figure of international criminal law of Hungarian and Jewish descent, he said his legacy “still forms our thoughts on our fight against crimes against humanity”, quoting the late jurist as saying: “Law continues to be humanity’s hope for a more just and peaceful world.”
ARIANNA CARRAL CASTELO (Cuba) underscored that a convention should reflect, as a fundamental principle, that the primary responsibility for preventing and punishing serious international crimes taking place under its jurisdiction should fall on the State in question. One of the fundamental principles of international criminal law is that States have the sovereign prerogative to exercise national jurisdiction in their courts over crimes against humanity committed in their territory or by nationals. The International Law Commission cannot be considered, in and of itself, as a legislative body in charge of establishing such norms of international law. The legal basis used in the draft articles for the definition of crimes against humanity is related to the Rome Statute, to which several States, including Cuba, are not a party. Thus, they cannot be forced to negotiate the exact references to issues regulated by the Rome Statute. Only in this way will it be possible for a future convention to obtain broad international acceptance by the international community. Given the current global state of uncertainty, her delegation would prefer not to rush the start of a new and complex negotiation, she said.
The floor then opened up to the Interactive Forum format.
The representative of Iceland, speaking as co-facilitator, noted that Brazil made an important point in underscoring that its delegation, by expressing any views or making points, is prejudging any eventual positions it may have. In remembering that delegations are not negotiating, people will feel more relaxed and able to participate, she pointed out, noting that the discussions are on substance; anyone will be able to change their positions as the discussions develop.
The representative of Brazil expressed appreciation for the co-facilitator's agreement with how his delegation is approaching this session.
The meeting then resumed to formal interventions.
AMARAL ALVES DE CARVALHO (Portugal), aligning himself with the European Union, said that his delegation approaches this discussion with tangible goals in mind — to further understand Member States’ positions on the draft articles, to clarify and address concerns that may exist and to identify possible avenues to make progress in the Committee’s discussion of this topic. A convention based on the draft articles is necessary and urgent to fill a gap in international law and in the fight against the most-serious crimes of international concern, he stressed. The preamble is inspired, in part, by the language used in the preambles of international treaties relating to such crimes, he said, highlighting the reference to the jus cogens nature of the prohibition against crimes against humanity. On the proposal to list certain principles of the Charter in the draft articles, he said that — to avoid politicization and cherry-picking — it would be better to incorporate a general reference to the principles of international law embodied in the Charter, as envisioned by the International Law Commission. Turning to draft article 1, he noted the dual scope of the draft articles, which apply to both the prevention and the punishment of crimes against humanity.
MATUS KOSUTH (Slovakia), associating himself with the European Union, said he concurred with the Commission’s finding about the stark contrast between the international regulation of crimes against humanity and other crimes under international law, including genocide and war crimes. The lack of a dedicated treaty instrument to regulate prevention and punishment is not a theoretical problem or exercise, he noted, spotlighting its serious repercussions for the practice of international law and the lives of millions of victims. The four preambular paragraphs were consistent with the standard treaty language and other products of the Commission and set an overall context of the draft articles. Preambular provisions not only provide a good balance in capturing the object and purpose of the draft articles, but intertwine them with other key elements, including the international cooperation or the rights of victims, witnesses and other individuals, he added. Noting that the scope of draft article 1 is consistent with other similar treaty instruments — such as the Genocide Convention or the Convention against Torture — he reiterated the importance of the draft articles’ preventive dimension.
ENRICO MILANO (Italy), aligning himself with the European Union, noted that the draft articles address the important normative gap of horizontal judicial cooperation for the prosecution of crimes against humanity. A future convention will reinforce both the primary responsibility of States in prosecuting and punishing those responsible for those crimes and the principle of complementarity in international criminal law. Unlike the 1948 Genocide Convention, 1949 Geneva Convention and the 1984 United Nations Convention against Torture, the draft articles have not been elaborated in a vacuum. Since the 1990s, a number of international courts and tribunals have been created to prosecute and punish international crimes, including the International Criminal Court. He also called for the preambular section to contain a paragraph acknowledging the important contribution of international courts and tribunals in addressing impunity and protecting the rights of victims. Except for that requested addition, his delegation can support the preamble as drafted. On article 1, for reasons of legal precision, his delegation would prefer the addition of the words “by States” after the words “prevention and punishment”, to avoid conflating other existing instruments establishing international mechanisms and institutions dealing with the prosecution and punishment of crimes against humanity.
ZACHARIE SERGE RAOUL NYANID (Cameroon) noted that the preamble is strongly inspired by the Rome Statute and takes up mutatis mutandis paragraphs 1 to 4, as well as a definition for crimes against humanity from article 7 of the International Criminal Court. This is going to further complicate the modalities of building this legal edifice, given that the Rome Statute, to date, has only been acceded to by 123 countries out of 193 Member States, which means fewer than two thirds. As there is no legally binding international instrument specifically on the definition of crimes against humanity, draft article 1 should arrive at a consensus definition, which would be universally acceptable. “The States therefore should not be confined by the straitjacket of the Rome Statute,” he stressed. Elaborating on his delegation’s other views, he pointed out that the Rome Statute itself indicates that the jurisdiction of the International Criminal Court is complementary to that of national criminal jurisdictions. Current draft articles cannot therefore extend the competency of the Court beyond that, he underscored, also noting the absence of any mention of regional conventions on the prevention and punishment of crimes against humanity.
MICHAEL IMRAN KANU (Sierra Leone), noting that a future convention “would be a gap-filling one”, said that such an instrument should primarily codify existing customary international law, and to the extent possible, include aspects of progressive development, such as incorporating provisions relating to extradition and mutual legal assistance into national law. The Rome Statute is the starting point for a future treaty governing crimes against humanity and proposals towards that end must fully respect the integrity of the Rome Statute, which was a “necessary negotiated compromise amongst States”. Turning to the draft articles, he added his support for the preamble’s characterization of the prohibition against crimes against humanity as jus cogens in nature. He also took note that the articles are “without prejudice to existing customary international law”; appropriate consideration must be given to the definition of crimes against humanity as set forth in the Rome Statute. On that point, he underlined the necessary compromise made and the balance struck by States. A future treaty governing crimes against humanity must cover both measures for the prevention and the punishment of such crimes, as expressed in the preamble and in various draft articles and the commentaries thereto, he added.
KEMAL ONUR EKREN (Türkiye) said his country codified crimes against humanity in its national legislation. Under the Turkish penal code, crimes against humanity are on the list of crimes to which the Turkish law shall apply. Pointing out that these crimes are susceptible for political exploitation, he underlined the importance of non-politicization of this agenda item. To secure the broadest acceptance of any proposed convention, the document should reflect widely accepted principles and contain safeguards against their potential abuse with political motives. In the absence of such, any convention could give rise to tensions between States and undermine rather than strengthen the efforts to promote justice, he stressed. Noting that certain provisions of the draft articles expand the scope of universal jurisdiction, including the reference to jus cogens in the preamble, he highlighted the importance of further studying relevant State practices and uphold recognized principles of immunity and sovereign equality. The expansion of the scope of the draft articles into such issues as “civil jurisdiction”, “amnesty” and “immunity” would be unhelpful for the goal of a widely accepted convention, he said.
The floor then reopened to the Interactive Forum format.
The representative of Cameroon, addressing the delegates of Portugal and Sierra Leone, said that the obvious trend is to put the International Criminal Court Statute at the core of the debate. However, as the representative of Türkiye noted, the issue of crimes against humanity is very complex. Those crimes have changed. If the Committee is confined to the “straitjacket” of the Rome Statute, it runs the risk of having interminable work and greater misunderstanding. He called for work on an effective definition of crimes against humanity, asking how the exploitation of land in Africa, acute deforestation and the theft of artwork cannot effect future generation, and therefore, constitute crimes against humanity. The confines of the definition should extend beyond physical death. If all the oil and gold are looted from his continent, the people of Cameroon will have nothing in 50 years and be doomed to die.
The representative of Sierra Leone responded that the Rome Statute is the core of debate because delegates are dealing with customary international law, as under the work of the International Law Commission, and its codification. He cited progressive development in horizontal cooperation, noting that, in trying to achieve a future treaty, there must be effective international implementation. It is important “not to reinvent the wheel” and ensure the principle of complementarity is safeguarded, with primacy given to States to investigate and prosecute crimes against humanity, he said.
The representative of Colombia, adding her agreement with Sierra Leone’s delegate, said there is a duty to refer to the Rome Statute as a precedent, whether States are parties or not; it is the basis for work. This does not preclude adding other considerations to the preamble. She further voiced her agreement with Sierra Leone that discussion on all crimes that should be listed should be broached when that point is reached, as it is not the specific topic of this cluster.
The representative of Portugal said the Committee should address the question of coherence with the Rome Statute. The definition therein [for crimes against humanity] is not a straitjacket, but a very important reference. It reflects, to a large extent, customary international law, he said, underscoring that the Committee should use that reference to decide how that definition serves the international community to date and whether and how it can and should improve it.
The representative of Cameroon, noting that Member States are present for a debate, added: “We are here to reinvent the wheel. If we didn't have to be here for that, then why are we here?” He called on them to take into account the two dimensions of the International Law Commission: the codification and the progressive development of the law.
The meeting then resumed to formal interventions.
ALEXANDRA HUTCHISON (Australia) said that a convention would close a gap in the current international legal framework and provide a new, catalytic basis with which to strengthen international cooperation in this area. Noting that there will be divergences on some of the draft articles, she said that she does not see this as a reason not to progress discussions. Rather, “we see it as a sign that we are ready to engage on the basis of the draft articles”, she said. Turning to the draft articles, she welcomed the preamble’s emphasis on the primary responsibility of States to investigate and prosecute crimes against humanity, which underpins the need for a convention to equip States with the tools needed to fill the current impunity gap. The International Law Commission’s reasoning regarding the jus cogens status of the prohibition of crimes against humanity is persuasive, and therefore, is an important inclusion in the preamble. This reflects that the prohibition against such crimes is accepted and recognized by the international community as a norm from which no derogation is permitted. Further, her delegation is also considering how to better integrate gender equality and First Nations perspectives as cross-cutting issues throughout the draft articles, she said.
EOGHAN MCSWINEY (Ireland), associating himself with the European Union, noted that, despite crimes against humanity among the most serious of all international crimes, to date, that the international community has failed to agree upon and adopt a stand-alone instrument criminalizing the crimes against humanity. The elaboration of such an international convention would send an important message that impunity for those who commit these crimes will not be tolerated. Reiterating his country’s strong support for such a convention, he said the draft articles provide a strong foundation to this end. The draft articles are complemented by the international initiative for the development of a multilateral treaty for mutual legal assistance and extradition in domestic prosecution of atrocity crimes, he added, stressing that both endeavours are very important.
LIGIA LORENA FLORES SOTO (El Salvador) noted that her country’s constitutional jurisprudence has reaffirmed that, by their nature, crimes against humanity have no statute of limitations according to international law. Further, no internal measures may impede investigation, clarification of the truth and full reparations to the victims — further meaning they cannot be the object of amnesty or pardon. She voiced her support for the reference to the Rome Statute as part of the preamble, since that instrument is the cornerstone for determining the scope of different crimes against humanity. She further encouraged delegations to adhere to the current international legal framework, taking into account that the draft differs from the Rome Statute. Citing the cohesive interpretation of regional legal systems, including jurisprudence from her region, Europe and Africa, she called for expanding the progressive discussion into the dimension of reparations for victims, and the meaning of the term “gender”, which should be a fundamental issue in the draft.
NOAM CAPPON (Israel) called for achieving wide acceptance of the rules for the prevention and punishment of crimes against humanity, noting that such wide acceptance should be based on customary international law, as well as established principles. Regarding preambular paragraph 7, he said the application of article 7 of the Rome Statute mutatis mutandis may not be appropriate and might even work against the broad acceptance that the Committee is trying to achieve, adding that his delegation will elaborate on its comments in the next cluster. Draft article 1 and the preamble set the tone and provide a strong basis for discussion of the issues requiring further attention in the remaining four clusters, he noted.
PABLO AGUSTIN ESCOBAR ULLAURI (Ecuador) said that the International Law Commission’s draft articles provide an adequate foundation for the negotiation of a convention on the prevention and punishment of crimes against humanity. He voiced his support for the preamble and draft article 1, which establish the two fundamental duties that States must fulfil regarding such crimes — prevention and punishment. The preamble establishes that the prohibition of crimes against humanity is a peremptory norm of international law, which reflects the international community’s position that this norm is superior in hierarchy to other norms of international law and is universally applicable. He also highlighted the draft articles’ focus on “the internal space of countries”, which makes them complementary to the other international instruments already mentioned in today’s dialogue.
NIDAA HUSSAIN ABU-ALI (Saudi Arabia) said that combating crimes against humanity is a noble goal for the promotion of justice and the rule of law. Underscoring the importance of promoting accountability and combating impunity, she said her country is committed to the administration of justice in accordance with the rules, national legislation and international conventions. Turning to article 1 and recalling that the goal of the draft articles is to combat and publish crimes against humanity, she said the wording does not correspond to the context. She suggested wording this article to conform with the following two proposals: “The present draft articles apply to crimes against humanity,” and “The present draft articles aim to prevent and punish crimes against humanity.” To this end, she also noted that the latter proposal would require changing the title of this article.
ANDY ARON (Indonesia) noted that there have been nine years of process to make progress on the draft articles. Recalling the critical importance of holding responsible the perpetrators of heinous crimes against humanity, he emphasized that the draft articles represent a step towards clarifying and strengthening the legal framework for prevention and punishment. Citing the obligations of States to take measures to hold perpetrators accountable through fair and impartial legal procedures, he pointed out that such crimes can be committed during peacetime and wartime alike — a critical acknowledgement of the importance of prevention. However, there remain divergent views among Member States that merit further consideration by the Committee, especially on preambular paragraphs 3 and 4, he said, underlining the importance of striving towards future consensus.
MAXIMILIAN GORKE (Austria), associating himself with the European Union, concurred with the Commission’s view that the prohibition of crimes against humanity already constitutes a peremptory norm of general international law, adding that his delegation hopes to learn more about opposing views in this regard. The definition of crimes against humanity, as set forth in the Rome Statute, ensures a consistent codification of customary international law, he said, adding that the last preambular paragraph underlines the ambition that effective prosecution of crimes against humanity can only be ensured by complementing measures at national level with international tools, such as extradition. The scope of a future convention, as stated in draft article 1, will apply to the prevention and the punishment of crimes against humanity. Nevertheless, matters that may not be covered by a future convention would still, to a large extent, be regulated by customary international law. Other grave international crimes, such as genocide or war crimes, should remain regulated by dedicated conventions and not be touched upon by the convention in question, he stressed.
ALIS LUNGU (Romania), aligning herself with the European Union, said that the draft articles provide an excellent starting point for negotiating an international legal instrument, which would consolidate the existing international law framework. Further, the adoption of such an instrument would encourage national-level prosecutions of alleged perpetrators and would constitute a strong basis for inter-State cooperation on the prevention, investigation and prosecution of such crimes. The preamble establishes the basis and conceptual framework for the provisions that follow, supporting its retention in its current form. She also underlined the need to recall the peremptory character of the prohibition of crimes against humanity, as well as the duty of every State to exercise its domestic criminal jurisdiction with respect to such crimes. Further, she welcomed the reference to the Rome Statute, noting that her country has consistently supported a coherent approach regarding the definition of these crimes. She added that the clarity and brevity of draft article 1 — which outlines the scope of the draft articles — could add to the overall acceptability of a future agreement.
The floor then reopened to the Interactive Forum format.
The representative of Cameroon, recalling that some delegations were pointing to an existing legal gap requiring codification, noted that there are rules that would allow crimes against humanity to be punished, not excluding the fact that the current legal framework could be improved. Article 10 of the Rome Statute opens the door to innovation and the creation of a new instrument. The codification being discussed by the Sixth Committee concerns the principle of international law.
The meeting then resumed to formal interventions.
Mr. MARUBAYASHI (Japan) emphasized the importance of adopting a convention on crimes against humanity with broad support, while giving appropriate consideration to the circumstances of each country, including consistency with its criminal law principles and national legal system. As indicated in the commentary prepared by the Commission, she confirmed the non-retroactivity of the draft articles — a widely accepted principle in the international context. Noting that the prohibition of retroactive punishment is a crucial principle — especially in the criminal field — as clearly provided in the Rome Statute, she therefore called for that prohibition to be explicitly stipulated in the text.
KAJAL BHAT (India) said the State with territorial or active personality jurisdiction is best suited for effective prosecution of crimes against humanity. It is in the interest of justice and the rights of the accused, as well as the interests of victims and other such considerations, that territorial or national jurisdictions should be given primacy. The draft articles, which are inspired by the Rome Statute and the Convention on the Prevention and Punishment of the Crime of Genocide, are neither new nor universal. “We fail to see the urgency of an accelerated adoption of the draft without an exhaustive study of its contents through the methods traditionally employed by the International Law Commission,” she stressed, pointing out that several countries in Africa and Asia, including India, are not parties to the Rome Statute. Her delegation is not in favour of simply transposing already existing regimes into a new convention, she stressed, noting that there are some glaring anomalies in the draft articles. As the preamble is drawn from the Rome Statute, which does not enjoy universal acceptance, it must be reformulated particularly with regard to the reference to article 7 of the Rome Statute in preambular paragraph 7.
BRIAN KELLY (United States) recalled his country’s proud history of supporting accountability for those responsible for crimes against humanity, dating back to the instrumental role the United States played in the first prosecution of such crimes in Nuremberg. The preamble draws inspiration from language used in the Convention on the Prevention and Punishment of the Crime of Genocide in setting out the general context and main purpose of the draft articles. That Convention, in many respects, is the primary model for any future convention on the prevention and punishment of crimes against humanity. However, he suggested that draft article 1 could be clarified in certain respects. For instance, nothing in the draft articles should be construed to authorize any act of aggression or any other use of force inconsistent with the Charter. Additionally, it should be made clearer that the draft articles would not modify international humanitarian law, which is the lex specialis applicable to armed conflict. “We would not want,” he emphasized, the draft articles to be interpreted in ways that purport to alter international humanitarian law or criminalize conduct undertaken in accordance with such law.
PETRA LANGERHOLC (Slovenia), aligning herself with the European Union, said the adoption of a convention strengthens States’ ability to prosecute crimes against humanity at the national level. It would provide the legal basis for the inter-State cooperation that is crucial for effective national investigations and prosecutions. The proposed convention, along with the mutual legal assistance initiative that aims to improve the investigation and prosecution of atrocity crimes at the national level, are mutually supportive frameworks which can develop side by side. The Mutual Legal Assistance Diplomatic Conference will be held in Slovenia in May. The adoption of the mutual legal assistance convention will be a major step towards State cooperation to end impunity for atrocity crimes as it will put into practice the principle of complementarity. She also recalled the duty of each State to exercise its domestic criminal jurisdiction over perpetrators of the most unspeakable atrocities that deeply shock the conscience of humanity.
KATARZYNA MARIA PADLO-PEKALA (Poland), aligning herself with the European Union, said that the draft articles address States’ obligation under customary law to prevent, prosecute and punish crimes against humanity and aim to fill the existing gap, also by regulating horizontal relations between States in this domain. She advocated for a victim-oriented approach and welcomed the inclusion of article 12 on victims and witnesses. However, the scope of the provision could be even more ambitious by adding a separate provision on the rights of a child, she said, noting that she will elaborate during discussions on cluster 5. The draft articles are not in any way dependent or contingent on the Rome Statute. Thus, States’ position towards the Court should not affect or influence work on the draft. Stressing that the draft articles rely extensively on provisions that most States have already accepted in widely adhered-to treaties, she affirmed that those ready to accept the need for a treaty to combat torture and corruption will find all the more reason to support a convention on preventing and combating the widespread or systematic murder, extermination, rape or torture of civilian population.
JUAN GÓMEZ ROBLEDO VERDUZCO (Mexico), recognizing the quality and the legal rigor of the draft articles, said the texts found a balance between codification and progressive development of international law and would serve as a foundation for a future convention. He underscored the importance of including in the preamble a reference to the principle of international law and mentioning the purposes of the United Nations contained in the Charter to develop an instrument reflecting universal consciousness and not a vision of a few. Noting that the future convention should pay the same attention to prevention and punishment, he said a preventive focus at the domestic level would be useful. He further detailed the questions relating to the existence of a legal vacuum in conventional law; the ways and instruments to fill this gap; and the “sources of inspiration” that should be used for the purpose. Recognizing that these questions can only be answered once the negotiations have been initiated, he encouraged the Committee to identify areas of convergence and disagreement to reach a final decision on the way forward for drafting a new convention in 2024.
JASSIM ABDULAZIZ J. A. AL-THANI (Qatar) said the draft convention has not addressed the question of formulation of reservations. It does not explicitly mention the inadmissibility of any reservations, he added, noting that this is particularly important with regards to preserving the rule of law or the right of States to issue reservations on a convention. This raises several questions, he stressed, asking: “If a State desires to issue a reservation regarding an article in the convention, would that mean that that State can no longer become a party to the convention?” He also asked whether States have the right to make reservations on the basis of the provisions of the Vienna Convention on the Law of Treaties, provided that those reservations do not contradict the objective of that Convention. Also asking whether a reservation could be of general nature and what sort of means for declaring a reservation could be used to avoid the legal effect of such a reservation, he underlined the need for clarification with respect to those questions.
NASIR UDDIN (Bangladesh) said that his country — having experienced genocide, crimes against humanity and other crimes during the liberation war in 1971 — “cannot overemphasize the importance of this process”. To ensure accountability for those crimes and restore dignity to the victims, Bangladesh conducted trials in national tribunals established in complementarity to the Rome Statute. As a result, a number of individuals were found guilty of crimes against humanity, including targeted killings, sexual violence and torture. Punishing such crimes is critically linked to preventing them; the Committee’s deliberations should place an equal focus on both aspects; and the preamble should reflect a more balanced approach in this regard. Reaffirming States’ duty to exercise criminal jurisdiction with respect to crimes against humanity, he also recalled States’ sovereign right to determine aspects of national criminal justice systems, including the form of punishment for such crimes, in accordance with international obligations. National efforts to prevent and punish such crimes must be supported by international cooperation, he said, adding that the Committee’s deliberations must address the practical challenges faced by national justice mechanisms, including extradition.
MANTSHO ANNASTACIA MOTSEPE (South Africa), voicing her support for the draft articles, recalled the horrors the vast majority of her country endured due to the crime of apartheid. “It is largely due to our dark history that South Africa ardently supports that those guilty of crimes against humanity […] must be brought to justice,” she said. Reiterating that the draft articles are in line with the principle of complementarity, she said States should retain control over the prosecution and punishment of offenders of international crimes. To this end, she underscored the importance of cooperation among States and the need for accommodating cultural specificities and geographical realities, stressing that the legitimate concerns of Member States should not be ignored. Expressing her support for the elaboration of a convention, she said she would like to propose certain changes and recommendations to the text in due course.
MOHAN PIERIS (Sri Lanka) recalled the millions of men, women and children who have perished due to genocide, crimes against humanity and war crimes in the last century, while perpetrators have only rarely been held accountable. While the preamble represents a broad reflection of contemporary international criminal law, similar to the Rome Statute preamble, this approach has many shortcomings, particularly as a one-size-fits-all distinction between the international and domestic offences gets very complicated. He urged delegates to affirm that stopping the cycle of violence and promoting justice requires that impunity must yield to accountability. This is easier said than done, he noted, addressing the respective roles of national courts and international tribunals. Universal jurisdiction is based solely on the nature of the crime and when national courts administer universal jurisdiction appropriately, they act to vindicate their own interests and values, as well as those common to the international community. However, the jurisprudence of universal jurisdiction is unfortunately disparate, disjointed and poorly understood, and potentially beset with incoherence, confusion and even injustice. Enhancing the proper exercise of universal jurisdiction will help close the gap in law enforcement that has favoured perpetrators. However, he also urged delegates to guard against improper exercise of criminal and universal jurisdiction, as it can be used merely to harass political opponents, thereby requiring principles of guidance and coherence.
AMADOU JAITEH (Gambia) said the lack of progress made on finished products, presented to the Sixth Committee by the Commission for endorsement, have made them redundant or reduced to technical roll-overs. “We must, therefore, dare to be different in our pursuit of the progressive development of international law, as well as the protection and promotion of human rights guiding principles, be it nationally or internationally,” he said. The Sixth Committee’s resumed sessions in 2023 and 2024 provide an opportunity to engage constructively on the Commission’s draft articles and elaborate them into a convention. “We must not allow this opportunity to be lost in loose technical debates,” he added. Delegates’ fight to end crimes against humanity must unite Member States, not divide them. This space and time should be used to engage with an open mind that is results-driven and aims to prevent and punish every crime that fits the definition of crimes against humanity.
SERGEI A. LEONIDCHENKO (Russian Federation), noting the significant divergence in the positions both on the content of the draft articles and the International Law Commission’s recommendations, said his delegation continues to not see the prospect for the development of a universal international instrument based on those draft articles. The international legal basis for resolving challenges facing States has existed for a long time, namely in the plethora of treaties on legal assistance and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968, he said, adding that questions of crimes against humanity are also regulated within national legal systems. The group of countries that refer to alleged shortcomings of legal regulations should focus first and foremost on developing their own legislation. While his delegation did not object to convening the resumed session, he said it does not see this work as a process of developing a text or a convention. Turning to accusations voiced against his country and the so-called arrest warrants of the International Criminal Court, he said the biased, politicized and non-competent so-called Court once again has proven that it is harmful and flawed. That Court is a puppet in the hands of the collective West, which will never act against its backers, he added.
ELISA DE RAES (Belgium), aligning herself with the European Union, welcomed that the preamble recalls the link between combating impunity in relation to crimes against humanity and maintaining international peace and security. Establishing responsibility and accountability for the most serious crimes is essential for restoring confidence in inclusive institutions, and in so doing, for achieving lasting peace. She also said that the draft articles constitute a good basis for discussions on drafting a convention governing the prevention and punishment of crimes against humanity, which would fill a gap in international treaty law. Highlighting paragraph 8 of the preamble — which focuses on States’ responsibility to prosecute the perpetrators of such crimes — she pointed out that, to shoulder such responsibility, States must have the necessary legislative, administrative and judicial capacity. She also welcomed the preamble’s language regarding the importance of measures taken at the national level and of international cooperation, stressing that the fight against impunity for perpetrators of crimes against humanity “is the business of all members of the international community”.
JOSE JUAN HERNANDEZ CHAVEZ (Chile) said the draft articles constitute an appropriate conceptual framework for discussing the universal convention. Observing that all preambular paragraphs offer a balanced view and consider elements relevant to the topic, he said the preambular paragraph would serve an interpretative purpose. Detailing each preambular paragraph, he underscored that drafting of a universal convention would allow for the development of the general duty that falls on the entire international community. However, this affirmation does not mean that all the provisions suggested would enjoy that legal status. Noting that preambular paragraphs 5 and 6 are mutually reinforcing, he said they are also useful for defining the future convention’s scope of application. Preambular paragraph 7 offers consistency between the new convention and the Rome Statute, he said, noting that the paragraph does not affect the State parties to the Rome Statute, but rather offers a substantive definition in line with general international law. Its inclusion would not have an effect of accepting the International Criminal Court’s jurisdiction, he clarified, while expressing hope that the future convention be compatible with the Rome Statute.
MHD. RIYAD KHADDOUR (Syria) said that the preamble does not offer enough guarantees or normative rules, particularly in regards to sovereign restrictions and peremptory norms included in the Charter, or a commitment from all parties to refrain from the threat or use of force on the territorial integrity or political independence of another country. He called for more wording to ensure that no provision of the convention can be considered as authorization for another State party to interfere in the internal affairs of another State or an armed conflict. Paragraph 2 provides a definition of crimes against humanity as though one already existed, while paragraph 4 states that prohibition of such crimes is a peremptory norm. “But, what crimes are we talking about?”, he asked. Citing several controversial definitions, such as in the Nuremberg Tribunals or the Rome Statute, he called for the Committee to draw inspiration from the latter, which refrains from listing or describing the crimes in its preamble. The Committee cannot work on the basis of the Genocide Convention for a definition, as it is based on a precise resolution of the General Assembly that genocide is a crime under international law. He further stated that the scope of draft article 1 is brief and vague, requiring an in-depth discussion, as the world of today faces many types of conflict.
YOUSSEF HITTI (Lebanon) said the preamble should define a framework and provide an aspiration that includes important references, including the reaffirmation of the principles of international law enshrined in the United Nations Charter, the jus cogens nature of the prohibition of crimes against humanity, the fight against impunity, and the main responsibility of States in the fight against those crimes. He noted with caution the reference in the preamble to article 7 of the Rome Statute, which defines crimes against humanity, recalling that those draft articles drafted by the International Law Commission concern all States, whether or not they are parties to the Rome Statute. The review of this first cluster is also an opportunity to recall that the work by the International Law Commission on this topic aims to strengthen domestic legal systems and cooperation between States, through the drafting of provisions that are effective and acceptable to States, he added.