Delegates Grapple with Definition of Crimes against Humanity That Supports Future Development, Has Legal Certainty, as Sixth Committee Continues Resumed Session
As the Sixth Committee’s (Legal) resumed session on its agenda item “Crimes against humanity” entered its second day, delegates grappled with the challenge of defining such crimes in a way that balances facilitating future development on the one hand and establishing legal certainty on the other — all in service of preventing and punishing some of the most serious international crimes.
The representative of Sweden, speaking also for Denmark, Finland, Iceland and Norway, voiced her support for the International Law Commission’s decision to use the Rome Statute as a basis for the definition of crimes against humanity in the draft articles. She also welcomed the Commission’s decision not to retain the Statute’s definition of “gender”, which does not reflect current realities.
Portugal’s representative added his agreement to that stance, stating that it is only logical that the Commission used the Rome Statute’s definition as a starting point for its exercise. That definition took a lot of time to develop, largely reflects customary international law, is widely supported by State practice and incorporates many elements from other international treaties. He also welcomed the removal of the concept of “gender”, which allows greater flexibility and protection.
However, the representative of Nigeria, responding during one of the Committee’s Interactive Forum format adopted during its resumed session, encouraged States to avoid deviating from the definition of “gender” included in the Rome Statute’s definition of crimes against humanity. She also underscored the importance of considering existing definitions on the national level.
The representative of Egypt observed that the definition of “crimes against humanity” proposed in the draft articles may not be the best one, as some States — as a matter of principle — reject definitions inspired by the Rome Statute. He also cautioned against adopting too broad a definition — influenced by other instruments or national legislation — as the majority of States would not accede to a convention whose application cannot be anticipated — a point he also raised during an Interactive Forum segment centred on the draft articles’ “without prejudice” clause.
On that point, Mexico’s representative welcomed the inclusion of such a clause, as it leaves open the possibility for other instruments — such as regional human rights instruments or national legislation — to contain broader definitions. He also said that the draft articles’ lack of definition for “gender” allows for future interpretation to consider subsequent developments in human rights and international criminal law.
The representative of Jordan similarly spotlighted the important safeguard offered by the “without prejudice” clause, which ensures that the draft articles do not limit the development of the definition of crimes against humanity in general international law. He also welcomed that the draft articles’ definition of such crimes largely follows that contained in the Rome Statute, which reflects customary international law.
Iran’s representative, however, said he disagreed with the broad description contained in the draft articles. Illustrating another of today’s points of divergence, he observed that the draft articles do not encompass all acts that can be considered crimes against humanity. He spotlighted, for example, the imposition of unilateral coercive measures against civilians to intentionally create suffering or foment dissatisfaction with Governments.
Along those lines, the representative of El Salvador reiterated the importance of categorizing sexual violence as a crime against humanity, also noting that more detail regarding the term “gender” could have procedural implications relating to evidence and witnesses. She also called for a definition that provides broader protection for the crime of enforced disappearance and urged that a debate on issues relating to children impacted by that crime be held.
The representative of the United Kingdom, meanwhile, encouraged the Committee to take the opportunity presented by any new convention to reflect on the definition of crimes against humanity. Observing that forced marriage is not specifically listed as a crime in the draft articles, he pointed out that international jurisprudence has already recognized that forced marriage is a crime against humanity.
Sri Lanka’s representative, for his part, noted that, despite aggression featuring prominently in the Rome Statute, the draft articles notably contain no direct references to that crime. Calling for aggression to be categorized as a crime against humanity, he also observed that, while the “without prejudice” clause provides flexibility, it also leaves room for arbitrariness. Establishing universal jurisdiction is what the Committee is engaged in now, he stressed, underscoring that it must simultaneously establish a practice of accountability while creating norms against radical evil.
The representative of the Republic of Korea emphasized that, while there may be diverse opinions and concerns on the draft articles, most of their content — including the definition of crimes against humanity — essentially reflects customary international law, existing treaties and national practice. While it is not possible to satisfy every Member State with a single convention, she stressed that it is nevertheless high time for States to demonstrate their collective will to prevent egregious crimes against humanity and protect the innocent.
At the outset of the meeting, the Committee concluded its debate on the first thematic cluster. (For background, see Press Release GA/L/3679.)
Speaking during the Cluster 1 debate were representatives of Singapore, Canada, Russian Federation, New Zealand, Peru, Argentina, Slovakia, Cameroon, Eritrea, Nigeria, Egypt, El Salvador, Portugal, Mexico, Switzerland and the Gambia, as well as an observer for the State of Palestine.
Also speaking during the debate on the second thematic cluster were representatives of Latvia (also for Estonia and Lithuania), Germany, India, Czech Republic, Saudi Arabia, Netherlands, Switzerland, Cuba, Austria, Slovakia, Italy, Malta, Australia, Cameroon, Sierra Leone, Israel, Liechtenstein, Indonesia, Romania, Japan, United States, Argentina, Qatar, China, Gambia, New Zealand, Colombia, Brazil, Russian Federation, Belgium, Chile, Singapore, Canada, Türkiye, Nicaragua, Philippines, Peru and Syria, as well as the representative of the European Union, in its capacity as observer, and an observer for the State of Palestine.
The Sixth Committee will next meet at 10 a.m. on Wednesday, 12 April, to continue its work.
Thematic Cluster 1: Preamble and Draft Article 1
YONG-ERN NATHANIEL KHNG (Singapore), pointing out that crimes against humanity are among the most serious crimes of concern to the international community, underlined the need for States to work together to end impunity for the perpetrators — and achieve justice for the victims — of such crimes. He welcomed the amendments made to the draft articles by the International Law Commission, which have generally improved the clarity and legal precision of the articles and the commentaries thereto. This has provided better guidance to States on this important topic, and the Sixth Committee should continue in this spirit with open, constructive dialogue to further build on the draft articles and commentaries. He said that, for its part, Singapore is committed to work during this resumed session to find solutions that appropriately account for the divergence of views present, as well as the gravity and importance of this topic.
Ms. CROCKETT (Canada), while recognizing the value of basing many provisions on other treaties, welcomed the opportunity to explore wording that would encompass a gender perspective more broadly and also ensure enhanced prevention and accountability for sexual and gender-based crimes. Detailing the draft articles, she suggested strengthening preambular paragraph 1 by emphasizing the seriousness of the crimes, which continue at present. On paragraph 7, she recalled that, in coming to agreement on the Rome Statute, the international community was attempting to reflect the status of customary international law, which took into account the view of all States. Noting that customary international law evolves through time, she suggested adding an element to emphasize this point. Further, she highlighted the value of including the elements recognizing the experiences of victims and survivors in paragraph 9. To better reflect article 8, a reference to investigation could be added in the last paragraph of the preamble, as well as a reference to an obligation to extradite or prosecute, she added.
EVGENY A. SKACHKOV (Russian Federation) said that preambular paragraph 2, which states that crimes against human threaten the peace, security and well-being of the world, has given rise to concerns among several delegations. Therefore, it is important to balance the preamble with wording to say that nothing in the draft articles should be interpreted as giving any States the right to interfere in the internal affairs of other States. Preambular paragraph 3 regarding the principles of international law should not be restricted simply to a reference to the Charter of the United Nations. As there are principles of international law not listed in the Charter, a reference to the Charter should be replaced with a reference to universally recognized norms of international law, including the principle of sovereign equality of States and the principle of non-interference in the internal affairs of States. Moreover, it is not appropriate to include in the preamble any description of crimes against humanity as a peremptory norm of general international law — jus cogens, he said.
ZOE RUSSELL (New Zealand), echoing others who said that the draft articles represent an opportunity to address a gap in the international legal framework, noted that the texts have been formulated in a way that complements the Rome Statute of the International Criminal Court. While this is important for ensuring coherence across international law, the Sixth Committee should focus its discussions on the substance of each draft article rather than on the Statute. She then voiced her support for the International Law Commission’s persuasive reasoning regarding the peremptory nature of the prohibition of crimes against humanity in the preamble as well as for the scope as articulated in draft article 1.
ALESSANDRA FALCONI (Peru), voicing support for the draft articles being the basis for a future convention, commended the preamble for stating that the prohibition of crimes against humanity is a peremptory norm of generational international law. She also lauded it for recognizing the need to prevent such crimes and end impunity for perpetrators, as well as for ensuring consistency by drawing on the definition of crimes against humanity as set out in article 7 of the Rome Statute. However, the Sixth Committee should not be limited in making changes to the text, especially in light of the different purposes between that Statute and the Commission’s articles, she said, drawing attention to the persecution and the forced disappearance of persons as two notable examples. Welcoming the draft articles’ consideration of the rights of victims and offenders, she encouraged them to mention vulnerable groups and include a gender perspective. On draft article 1, she stressed that the articles would apply to the prevention and punishment of crimes against humanity and thus cover the two dimensions which a future convention should address.
MARTÍN JUAN MAINERO (Argentina) recalled that, when the International Law Commission presented the draft articles on prevention and punishment of crimes against humanity in 2019, many States, including his were prepared to proceed to elaborating a convention. However, it was not possible to agree on a road map to achieve that objective. Given the horror of such crimes, the continued inaction of the Committee is hard to justify. The deadlock was broken during the present session, enabling in-depth reflection to frame next steps. Turning to the preamble, he underscored its reference to jus cogens due to its applicability to crimes against humanity, as well as the reference in the sixth paragraph to ending impunity, which lays out the purpose of the instrument. He also voiced support for the reference to the rights of victims in the preamble and the body of the draft articles, as their rights are often denied for various reasons, including the weakness of criminal justice systems. While he agreed in principle with draft article 1, having listened to colleagues’ concerns during the informal debate, he proposed that its framing could follow that of the Convention on the Prevention and Punishment of the Crime of Genocide.
MATÚŠ KOŠUTH (Slovakia) pointed out that the Rome Statute is not just a product of current States parties, especially with regards to its preambular provisions. The Rome Statute was subject to one of the most-extensive inter-State negotiations in the area of criminal law and, therefore, does not only reflect the positions of those party to it. Further, as the Rome Statute was adopted as a package, every provision therein was not subject to diverging views; rather, looking at official records, its preambular paragraphs enjoyed broad support. Against that backdrop, he urged those present to think about all the work States did leading up to the Statute. He went on to say that the draft articles fully reflect the possibility of applying bilateral regimes of inter-State cooperation. However, in practice, it is difficult to have only a bilateral basis for such cooperation. A multilateral framework — common for other international and transnational crimes — both adds value and complements bilateral frameworks. He added that the primary purpose of a convention stemming from the draft articles would to be both oblige and guide States in implementing relevant domestic legislation.
The floor then opened up to the Interactive Forum format.
The representative of Cameroon, responding to the representative of Slovakia’s statement noting that the Rome Statute concerns States not parties to it, recalled that international law established mechanisms for consenting to be bound by a convention through the process of signing, adoption and ratification. Such processes are developed to ensure that States that accede to a specific instrument are doing so being fully aware of the respective consequences, while having a mechanism for reservations. Regarding the legal gaps, he argued that, if the Nuremberg, Arusha and the Yugoslavia Tribunals were able to function and hand down valid sentences, there is legal basis and applicable law to this end. However, he added that he agreed on thinking more broadly and elaborating on other areas.
The meeting then resumed to formal interventions.
ZEBIB GEBREKIDAN (Eritrea) said the creation of an ad hoc committee is an important step for considering the draft articles. Turning to preambular paragraph 7, she voiced concern about the reference to the Rome Statute given its lack of universal jurisdiction. Moreover, the draft articles proposed by the International Law Commission have missed out on other inhumane acts that are part of a widespread or systematic attack directed against a civilian population, namely unilateral coercive measures and sanctions. They are illegal in design and practice with detrimental ramifications for the well-being and development of the civilian populations of targeted States. In the context of crimes against humanity, environmental destruction could arguably fall within four categories of acts, such as deportation and the forcible transfer of population. "We agree that we should not reinvent the wheel as was mentioned yesterday,” she said, pointing out, however, that delegations should not limit themselves to certain categories and pursue the progressive development of international law. It is too early to call for a conference on crimes against humanity as there is still much legal ambiguity and a range of different views for which continued engagement is required, she said.
The floor then opened up to the Interactive Forum format.
The representative of Nigeria, noting the references to legal gaps, asked for a further elaboration on what those gaps are. How can States elaborate on a new convention and move it forward if they do not address the issue on gaps, she wondered. While States must strengthen legal systems, the Committee must also identify other gaps in order to know and define where it is going. She then underscored that States need to know if there will be a reservation and emphasized that the Commission’s report is supposed to be a working document.
The representative of Egypt echoed the need to address remaining gaps, as, given that the Rome Statute is not a universal document, there is no international convention concerning crimes against humanity. To this end, he echoed a comment by a colleague, made during an informal debate, who spotlighted the need for more horizontal cooperation. He also underscored the need to address the gaps in national or international legal frameworks that have led to impunity.
The representative of Slovakia said that he referred to the process behind the Rome Statute because it constitutes important travaux préparatoires that can shed light on how those provisions were drafted. He also pointed out that there is not a legal gap in the material understanding of what crimes against humanity are; rather, the gap exists because no treaty currently obliges States to criminalize such acts in domestic law, which is one of the draft articles’ goals.
The observer for the State of Palestine, recalling that law is built on existing instruments, emphasized that taking into account “what exists” does not mean being bound by it. He, however, said it is not possible to ignore the existence of formulations developed in the Rome Statute. Reiterating that “there is no intention to force people into something they have not committed to”, he argued against ignoring the importance of the existing mechanisms.
The representative of El Salvador said that, while her delegation recognizes the added value of the “mini-debate” [Interactive Forum format] the co-facilitators could perhaps give guidance, comments and questions during informal consultations to enable delegations to clarify things within the mini-debate. In addition to referring to the Rome Statute, of which it is a party, a progressive interpretation of human rights law and better regional rights systems are also needed, she said, adding that the African, European and inter-American systems could help to contribute to the discussions.
The representative of Cameroon, echoing his colleagues from Eritrea, Egypt and Nigeria, pointed out that definitions are fundamental for setting the Sixth Committee’s course. Since what might be self-evident for some will not be for others, the Committee will be lost if it does not clarify what words mean. The Committee must find its own words so as to effectively address the question of crimes against humanity, he emphasized.
The representative of Portugal underscored the importance, necessity and added value of a dedicated convention on crimes against humanity, noting that it is the only such crime without such a convention dedicated to preventing and punishing such crimes, as well as promoting inter-State cooperation. Genocide and war crimes have such dedicated conventions to address them, as do lesser crimes, such as corruption and transnational organized crime. Therefore, a dedicate convention is of added value to the international community and will enable such crimes to be fought more effectively, he said.
The representative of Mexico said that discussions on the Rome Statute should be left to the side, and that the debate should instead focus on the existence of other conventions, such as those on war crimes and genocide. The Rome Statute is an instrument relating to criminal jurisdiction. However, a convention stemming from the draft articles on crimes against humanity would have a broader scope, obliging States to prevent and punish such crimes domestically. He also agreed with other speakers on the need to discuss definitions, which the Committee will do when it moves to Cluster 2.
The representative of Switzerland affirmed that a convention would complement treaty law on core international crimes and serve as a powerful symbol. It would also assist States to implement their primary responsibility in investigating these crimes and promoting inter-State cooperation in their investigation, prosecution and sanctioning.
The representative of the Gambia, noting he values all comments by other delegations, said that a stand-alone convention on crimes against humanity will not only complement existing instruments but also act as a deterrent to perpetrators of crimes against humanity. There is a gap that must be filled to prevent commission of such crimes.
The representative of Cameroon stressed that the Committee cannot let the definition of crimes against humanity slip away as if it were a formality. The Committee is discussing that definition in the preamble precisely because of that section’s importance in guiding what comes next in the text, he pointed out.
The representative of Egypt, while thanking the representative of Portugal for his intervention, countered that “the problem is not so simple”, as the draft articles get into contentious areas, such as immunity and universality of jurisdiction. He noted that there was a lot of space to do something meaningful, even if it may not be as forward-leaning as some delegates would hope.
The observer for the State of Palestine said that the Committee’s objective should be to build on current law and move forward, rather than staying stuck on a particular convention currently in existence. The international instruments on genocide and war crimes are relevant but have a different scope. He added that, as the Rome Statute clearly refers to crimes against humanity, it will necessarily inform the Committee’s debate.
The representative of Iceland and co-facilitator, responding to the representative of El Salvador’s comment on conducting the “mini-debate” [Interactive Forum format], said that, if discussions are going well, then co-facilitators do not have a problem of the mini-debate taking place during the formal session. She also spotlighted the upside of such format being more transparent. “We are at your service, and you call the shots,” she stressed.
The representative of El Salvador, acknowledging the Interactive Forum format’s added value of the mini-debate, suggested — for the sake of efficiency — co-facilitators could establish guide questions for the informal consultations that would lay out detailed points identified in the mini-debate. Recalling yesterday’s informal consultations, she noted that delegations expressed the same positions around one question and things “went out in circles”.
The representative of Iceland took note of the suggestion and said co-facilitators would consult accordingly.
The meeting then resumed to formal interventions.
MAJED S. F. BAMYA, observer for the State of Palestine, said the Sixth Committee is the appropriate forum to discuss the International Law Commission’s draft articles. Expressing general agreement with the Commission’s proposed draft articles, he said preambular paragraph 1 rightly stresses the link between the pursuit of justice and the maintenance of peace and security; it echoes the purposes set forth in Article 1 of the Charter. Given the distinct nature of the draft articles and the crime therein, that reference to principles of justice should also be mentioned, in accordance with the Charter’s Article 1, as well as general principles of international law. It is important that preambular paragraph 4 recalls that the prohibition of crimes against humanity is not only a rule under customary international law, but is also a jus cogens, with certain obligations, of which no derogation can be permitted. As crimes against humanity are essentially systematic and widespread violations of human rights, he suggested adding the standard reference to the Universal Declaration of Human Rights, as an embodiment of the widest possible consensus on human rights.
Thematic Cluster 2: Draft Articles 2, 3 and 4
SIMONA POPAN, representative of the European Union, in its capacity as observer, said that her bloc is pleased that the Commission decided to remove the definition of “gender” as contained in article 7 of the Rome Statute, especially since several national laws implementing that Statute have similarly done so. Since crimes against humanity protect civilian populations, an attack must be directed against a civilian population must be widespread or systematic. These disjunctive requirements have been clarified by the well-established practices of international tribunals. However a widespread attack does not necessarily imply a large geographical area, but rather a large-scale nature which excludes isolated or unconnected acts of violence. Offenders of crimes against humanity are also not limited to State officials or agents; such attacks may be committed by organizations or groups with the capacities and resources to orchestrate a widespread or systematic attack as part of its organizational policy. She also noted that States may provide in their national legislation a definition which goes beyond that contained in the draft articles.
Turning to the general obligations in draft article 3, she emphasized that States are under the obligation to prevent, punish and not engage in crimes against humanity. The words “undertake to” — as also employed in the 1948 Genocide Convention — imposes a clear obligation on parties to prevent and punish crimes against humanity. The wording “whether or not committed in time of armed conflict” settles a long-standing dispute, she said, welcoming also the clarification that no exceptional circumstances may be invoked as a justification for crimes against humanity. On article 4, she pointed out that the obligation of prevention is not specific to the draft articles and have already been included in a number of existing conventions. As most crimes that may qualify as those against humanity have already been widely prohibited in many States, the inclusion of prevention in addition to prohibition is therefore based on previous treaty practice. The reference to “in conformity with international law” further reflects the International Court of Justice’s jurisprudence in clarifying States’ engagements in prevention measures. In that regard, States have a diversity of tools to meet this obligation which includes internal measures — such as effective legislative, administrative and judicial ones — as well as cooperation with other States, other organizations and relevant intergovernmental organizations, she noted.
JULIA FIELDING (Sweden), speaking also for Denmark, Finland, Iceland and Norway, voiced support for the International Law Commission’s decision to use the definition in article 7 of the Rome Statute as the basis for the definition of “crime against humanity”, and welcomed their decision to not retain the Statute’s definition of “gender”, which does not reflect current realities. Underlining the importance of the principle of legality in criminal law, she highlighted paragraph 1 and subparagraph k, which provides that a constituent of a “crime against humanity” could also consist of “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”. The provision resembles one permitting analogy. Therefore, further reflection is needed on how to ensure that its interpretation is kept reasonably narrow. As well, further reflection is needed in regards to the attack directed against a civilian population. Draft article 2 only takes into account the mental element. This element could be regulated in more detail and limited to intent and knowledge.
Turning to draft articles 3 and 4, she said that a possible future convention would fill an important gap in international treaty law, through its focus on States’ obligations to prevent and punish crimes against humanity. While welcoming the further operationalization of the obligation of prevention in draft article 4, she voiced support for the inclusion of additional wording to concretize the nature and content of the obligation of prevention to make it more precise and effective. She also voiced her support for robust obligations of inter-State cooperation in general as well as regards prevention, while also underlining that no such obligations can be construed so as to limit already existing obligations vis-à-vis other crimes.
ELVIRA CUPIKA-MAVRINA (Latvia), speaking also for Estonia and Lithuania and aligning herself with the European Union, said that the definition of crimes against humanity in draft article 2 is clear and comprehensive, welcoming its inclusive, diverse character regarding the circumstances in which such crimes may occur. The definition is victim-centred, meaning that it is designed to protect the rights and interests of the civilian population. She pointed out that such a focus is important, as it ensures that the emphasis remains on preventing and punishing crimes that have a significant impact on civilians. By establishing a clear definition, the draft articles will ensure that such crimes are properly identified and addressed, and that perpetrators are held accountable.
She went on to say that the inclusion of a general obligation to prevent crimes against humanity, as contained in draft article 3, is a much-needed and positive development of international criminal law. Prevention is key to combat these heinous crimes, and the general obligation encourages States to take proactive measures towards this end. Further, such obligation sends a strong message that such crimes will not be tolerated. This reflects the international community’s commitment to uphold human rights and ensure that those who commit such crimes are held accountable, she said.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), addressing draft article 2, argued against creating too broad a category, which could be poli-interpreted or politicized. The definition of crimes against humanity proposed in the draft articles may not be the “best definition”, since some States — as a matter of principle — reject definitions inspired by the Rome Statute. However, adopting too broad a definition influenced by other instruments or by national legislation is not a solution either. Acceding to a convention that opens the way to the application of articles that are not known in advance and cannot be anticipated, would not be accepted by the majority of States. To this end, he suggested reconsidering draft article 3, paragraph 2 and limiting it to cases where a link has been established between the crime and the State exercising jurisdiction. More so, he expressed reservations over the approach taken by the International Law Commission in paragraphs 41 and 42 of its commentaries, noting that the Commission has unilaterally decided to address this question, although it goes outside its mandate and impinges upon competency against other United Nations bodies.
MICHAEL HASENAU (Germany), associating himself with the European Union, noted that the definition of crimes against humanity contained in draft article 2 is based verbatim on article 7 of the Rome Statute, with some minor adjustments. This text appears to be a solid contemporary proposal, which gained widest support. The definition appears to be balanced insofar as it refrains from going into too much detail, he added, noting that it leaves space for more prescriptive national legislation that might exist already or would be considered appropriate in the future. Draft article 3 represents the most important provision of the convention and it sets out the obligation of States to prevent, punish and not to engage in crimes against humanity; this obligation covers acts through States’ own organs or by persons within their control. It importantly prohibits crimes against humanity as crimes under international law, whether or not committed in time of armed conflict. Draft article 4 clarifies the obligation of States to exhaust their legal means to prevent crimes against humanity. The provision promotes a web of prevention and multilateral cooperation in response to mass crimes, thus adding real value to the existing framework of international criminal law.
The floor then opened up to the Interactive Forum format.
The representative of India said that her delegation sees no justification for the Commission to not include terror-related acts and the use of nuclear weapons in the definition of crimes against humanity. Are such subjects not so serious a crime as to qualify, she asked. While the concept of terrorism was alien to the world during the Nuremberg Trials, the past four decades have seen the devastation caused by terror-related activities at the hands of some States, be it through actively conniving in such activities or providing support to other groups. Does the Commission not recognize that such crimes endanger the important contemporary values of peace, security and the world’s well-being, she wondered.
The meeting then resumed to formal interventions.
EMIL RUFFER (Czech Republic), welcoming the International Law Commission’s using article 7 of the Rome Statute as the reference point for draft article 2, said that possible expansion or narrowing of the definition could blur the lines of the definition of crimes against humanity under treaty law. Flexibility in this area is sufficiently guaranteed by paragraph 3. However, he called for the definition to be construed “strictly and narrowly”. Turning to draft article 3, he noted it contained a paragraph stating the obligation of States not to commit crimes against humanity and endorsed its emphasis on the obligation to punish crimes against humanity, whether or not committed in time of armed conflict. On draft article 4, he said it might benefit from mentioning certain concrete examples of preventive measures, in line with previous conventions, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Noting the inclusion of the requirement that States must act “in conformity with international law” when they take action to prevent the commission of crimes against humanity, he said that the requirement excludes the possibility to invoke the provision in support of the legality of use of force without relevant State consent or without authorization by the Security Council.
LIGIA LORENA FLORES SOTO (El Salvador), reiterating the importance of criminalizing sexual violence under the category of crimes against humanity, said that more detail when it comes to the term “gender” could have procedural implications, such as those involving the assessment of evidence or witnesses in cases of such violence. On the definition of “enforced disappearance” in draft article 2, she recalled that her delegation has repeatedly proposed incorporating “groups of people or people who act with the authorization, support or acquiescence of States” within this term. This would bring it in line with the International Convention for the Protection of All Persons from Enforced Disappearance, which provides broader protection for victims of such crime. She also called for debate on the prevention, investigation and punishment of actions or omissions relating to the appropriation of children subject to enforced disappearance, whose parents are subject to such crime or who are born while their mother is subject to enforced disappearance. Such debate should also consider actions or omissions aimed to falsify, conceal or destroy documents relating to the true identity of children in such situations.
NIDAA HUSSAIN ABU-ALI (Saudi Arabia) said draft article 2, paragraph 1(k) includes many acts that could be difficult to identify, which allows for the qualification of any act that includes an element referenced in the text as a crime against humanity, despite the fact that such crimes have already been referred to in previous paragraphs. This might lead to expanding the applicability of the provisions of the draft articles without clear controls, she stressed. Turning to draft article 3, paragraph 2, she recalled that draft articles already define crimes against humanity, and suggested to avoiding repetition in the context of the paragraph.
CHANAKA LIAM WICKREMASINGHE (United Kingdom) voiced support for the definition of crimes against humanity in draft article 2. However, the Committee should take the opportunity presented by any new convention to reflect on the definition. Observing that forced marriage is not specifically listed as a crime in the draft articles, he pointed out that international criminal law jurisprudence has already recognized that forced marriage is a crime against humanity. For example, the Ongwen Case before the International Criminal Court held forced marriage to be a form of an “other inhumane act”. As such, the draft article could be updated to explicitly include such a crime. Regarding draft article 2, paragraph 1(f), he said that, given the lessons learned from the application of the Rome Statute and the repugnance of forcible interference with reproductive rights to the values that international criminal law protects, he would be in favour of exploring how the definition of forced pregnancy found in draft article 2, paragraph 1(f) could be strengthened. Draft articles 3 and 4 are also of vital importance to tackling the scourge of crimes against humanity as the aim of all States should be to prevent these crimes from occurring in the first place, he said.
MOHAMMAD GHORBANPOUR (Iran) voiced his disagreement with the broad description contained in draft article 2. It does not encompass all acts that can be considered crimes against humanity, such as the imposition of unilateral coercive measures against civilians to intentionally facilitate their suffering and dissatisfaction with their Governments. If such an extensive definition is to be kept, then there should be an entirely separate article entitled “Elements of Crime”. Moreover, since the threshold for crimes against humanity should be higher than for other less serious ones, the acts listed in draft article 2 are only considered as such crimes if they are committed as part of a widespread and systematic attack against civilians. Underscoring the need for a more appropriate reflection of States’ obligations in draft articles 3 and 4, he emphasized that the critical invisible role of external players – particularly foreign States – cannot be overlooked. Draft article 4 in particular should address, among others, the obligations of States not to intervene in the internal affairs of other States that result in crimes against humanity, he said, calling for the addition of a new paragraph 2 that is based on article 2 of the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty.
MATTHIJS BOERMA (Netherlands), aligning himself with the European Union, emphasized the importance of using the definition in the Rome Statute so as to ensure legal certainty. Challenging the definitions in that Statute — which are in line with the practices of other international tribunals, including those established by the Security Council — can jeopardize certain achievements. On gender, he said he is pleased that its definition has been removed and stressed that definitions should focus on the evolving jurisprudence of international and national legal bodies. Further, draft articles 3 and 4 should be seen as separate provisions. The obligation to prevent depends on the ability of States to influence possible perpetrators of crimes against humanity, he pointed out, noting that the provision on prevention provides an obligation of conduct — and not of result — where States can. Such an obligation of conduct would notably require States to employ all means reasonably available to them. Yet, it is territorial States who have the primary responsibility to protect their populations. While draft article 4 also contains the obligation to prevent, it has a clear delineation of scope in its first paragraph, unlike draft article 3, he said.
RICCARDA CHRISTIANA CHANDA (Switzerland), stressing the need to fill the gap in codifying crimes against humanity, which are essential to prevent and punish, she said the convention’s universal value across legal systems and cultures will be a powerful symbol and will ultimately be an essential tool to ensure accountability. She welcomed that the definition of such crimes in draft article 2 is based on the definition in article 7 of the Rome Statute, with the exception of some non-substantial changes. It is important to avoid a definition that would deviate from that of the Statute, she added. She also welcomed that paragraph 3 provides that the draft article is without prejudice to any broader definition provided by any international instrument. As well, she welcomed the importance given to prevention in draft article 4. Further, paragraph 3 of draft article 3 emphasizes that no exceptional circumstances whatsoever could be invoked to justify such crimes.
ARIANNA CARRAL CASTELO (Cuba) said that paragraph 2(a) of draft article 2 is ambiguously drafted; it is unclear what an “attack directed against any civilian population” consists of. Further, it notes that such attacks may be committed in line with “State or organizational policy”, but does not define the kind of organization to which it refers. She also said that the definition of “forced pregnancy” in paragraph 2(f) must be overhauled to account for international practice in the area of sexual and reproductive health. She added that paragraph 2(g) does not provide a clear definition of the concept of “persecution”, and that the legal definition of “deprivation of liberty” in paragraph 2(i) remains incomplete.
ALEXANDER MARSCHIK (Austria), associating himself with the European Union, reiterated his country’s support for the early convening of a diplomatic conference to finalize and adopt an international convention. Noting that the definition of crimes against humanity in draft article 2, from a legal point of view, is not “based” on article 7 of the Rome Statute, he said the only aspect in common is the definition of these crimes under customary international law. Supporting the explicit mentioning of the obligation of States “not to engage in acts that constitute crimes against humanity” in article 2, paragraph 1, he also welcomed the addition of the obligation to prevent crimes against humanity in paragraph 2. Pointing out that the obligation of prevention in draft article 4 was inspired by the Convention against Torture, he said a similar approach on the prevention of crimes against humanity is only consequential. At the same time, the explicit requirement of preventive measures to be “in conformity with international law” is in line with the jurisdiction of the International Court of Justice and may alleviate concerns of certain States, he added.
SERGIO AMARAL ALVES DE CARVALHO (Portugal), associating himself with the European Union, said it is only logical that the International Law Commission used the definition in article 7 of the Rome Statute as a starting point for this exercise. That definition took a lot of time to develop and largely reflects customary international law, is widely supported by State practice and incorporates many elements from other international treaties. Noting that the Commission itself introduced tweaks to the definition, he welcomed the removal of the concept of “gender”, which allows greater flexibility and protection compared to previously adapted solutions. It would be up to Member States to decide on how to adjust what the Commission has put forth, drawing from other sources and determining the level of progressive development that might be warranted. Draft article 3 is a fundamental provision as it clearly sets out the obligations of States not to engage in and to prevent and punish crimes against humanity. Regarding draft article 4, he stressed that the obligation to prevent the commission of crimes is not specific to the draft articles, adding that similar references can be found in other conventions as listed by the Commission in its commentary.
MATÚŠ KOŠUTH (Slovakia), aligning himself with the European Union, voiced his support for the definition in draft article 2. Setting the Rome Statue’s definition as a point of reference is legitimate and reasonable, he said, adding that this in no way affects the rights and obligations of non-State parties. He also noted that the requirements for an attack to be widespread or systematic are disjunctive. He pointed out that both attributes exclude isolated or unrelated acts and echoed the Commission’s view that the intention of an attack — rather than its physical result — is the critical component of crimes against humanity. He also expressed his satisfaction with removing the “war nexus” and suggested that the requirement for attacks to be “pursuant to or in furtherance of a State or organizational policy” be subjected to further substantive exchanges. Turning to draft articles 3 and 4, he registered his openness to further discussions on whether the passive obligation to not engage in acts constituting crimes against humanity also encompasses abetting or incitement. He also said he was pleased that paragraph 3 of draft article 3 does not limit the applicability of the provision to the conduct of States only.
ENRICO MILANO (Italy), aligning himself with the European Union, voiced support for draft article 2 and welcomed its alignment with article 7 of the Rome Statute. Specifically, the definition under draft article 2 is aligned with case law elaborated by international courts and tribunals, with regard to the requirement that the attack is made in pursuance or in furtherance of a State or organizational policy and the commentary to that article, which does not require that the offender be a State official or agent. On draft article 3, he voiced his support for the provision as it stands, adding that its paragraph 1 identifies a clear legal standard from the perspective of law of State responsibility. On paragraph 3, which provides for an obligation of due diligence, he said that the application of such an obligation requires a case-by-case evaluation. Turning to article 4, and its obligation of prevention involving positive actions in the territory and under the jurisdiction of the State, the requirement that actions are conducted “in conformity with international law” is an important one.
The floor then opened up to the Interactive Forum format.
The representative of Egypt, spotlighting the “without prejudice” clause in paragraph 3 of draft article 2, questioned how Member States can accept such a provision when there are clear obligations based on the definition of crimes against humanity. Member States are required, under the draft articles, to prevent and criminalize such crimes. He urged those present to consider, therefore, how they will fulfil their obligations going forward if the definition of such crimes can change based on the fluid characterization in that clause, as international law can develop unpredictably.
The representative of Nigeria, addressing draft article 2 and the definition of “gender”, questioned whether the International Law Commission’s report was a legal document and if delegates were supposed to use its recommendations. Her delegation sees it as a working document, she said. Noting that the Rome Statute provides a definition of crimes against humanity, including a definition of “gender”, she encouraged States to avoid deviating from that definition. She also underscored the importance of considering the existent definitions on the national level and urged States to strengthen international cooperation on the legal system.
The representative of Malta, noting the definition of crimes against humanity in draft article 2, applauded the decision of the International Law Commission to exclude the limited definition of “gender” from the draft article, thus extending the product’s provisions towards all people. As clearly explained in the commentaries of the draft articles, the Rome Statute is just one of inspirational sources of the Commission’s work. Thus, it would be more useful to focus more on the product before the Committee rather than continuously reiterating and calling upon the Rome Statute.
The representative of Australia said that the “without prejudice” clause in paragraph 3 of draft article 2 does not create ambiguity over future obligations since States would not be bound by the legal definition of such crimes by joining the convention or any future ones. Rather, it is a valuable addition to ensure that States are not precluded from elaborating on broader definitions of crimes against humanity in their national laws or other international instruments, she stressed.
The meeting then resumed to formal interventions.
ZACHARIE SERGE RAOUL (Cameroon), addressing draft article 2, said that it came as no surprise that the definition of crimes against humanity in the preamble reproduces the definition enshrined in the Rome Statute, which is concerning to his country, due to its unwavering position on that instrument. Underlining his concern, he highlighted paragraph 3, which unambiguously states that the draft article is “without prejudice to any broader definition provided for in any international instrument”. “In reality, this is a more subtle, user-friendly version of article 7 of the Rome Statute,” he observed, adding that Cameroon is not a party to the Statute, which is not universal and not based on consensus. To that end, he cited an African proverb: “The wind casts dry leaves into holes, but does not lift them out.” He suggested that the definition of crimes against humanity encompass those who are responsible for the unsustainable pillaging of resources, which is apocalyptic and threatens present and future generations. In a similar vein, the definition of such crimes should be extended to those who destroy or confiscate world heritage recognized by the United Nations Educational, Scientific and Cultural Organization (UNESCO), he added.
The floor then opened up to the Interactive Forum format.
The representative of Egypt then asked the Committee to consider a hypothetical. “Country X” and “country Y” are both parties to a treaty stemming from the draft articles. “Country X” enacts a law that contemplates a broader definition of crimes against humanity — based on the “without prejudice” clause in paragraph 3 of draft article 2 — that categorizes the pillaging of resources as such a crime. He then asked how the treaty would oblige “country Y” vis-à-vis this crime and whether it must enact legislation to criminalize and prevent this act. He also asked what happens if “country X” decides to rely on this broader definition in its relationship with “country Y” based on such a treaty. He said that this is a practical example of questions that national legislatures will ask when they look into a treaty based on the draft articles.
The meeting then resumed to formal interventions.
MICHAEL IMRAN KANU (Sierra Leone), expressing support for the approach taken by the Commission on draft article 2 to ensure consistency with the Rome Statute, said the deletion of the definition of “gender” may seem to serve a pragmatic purpose. While the Rome Statute includes provisions for enslavement and sexual slavery as crimes against humanity, which are transplanted in draft article 2, it does not contain provisions for the slave trade. Given Sierra Leone’s experience on forced marriages and the notion of the so-called “bush wife”, he suggested including slave trade under crimes against humanity. Expressing support for draft articles 3 and 4, he noted that the commentary provides guidance for the measures to be taken, including the adoption of laws penalizing crimes against humanity, the investigation of credible allegations, and the education of Governmental officials. To this end, he underscored the importance of capacity-development and ensuring effective horizontal cooperation.
ALEXANDRA HUTCHISON (Australia) noted that the International Law Commission reached a balanced outcome in draft article 2, having made only minor amendments to the Rome Statute definition of crimes against humanity to suit a different context. The Commission’s decision to remove the definition of “gender” ensures the term can be applied to account for an evolving understanding of its meaning, she said, adding that her delegation is considering how gender equality can be better integrated as a cross-cutting issue throughout the draft articles, and is open to considering adjustments that would ensure any future convention remains fit for purpose. She voiced support for the characterization in draft article 3 of the general obligations of States, noting that it is consistent with the principle that it is the primary responsibility of each territorial State to prevent and punish serious international crimes that occur within its jurisdiction. Draft article 4 provides high-level and non-exhaustive guidance on the scope of States’ obligation to prevent crimes against humanity, while maintaining a level of flexibility for States when implementing preventative measures that are most appropriate for their national systems. It also makes clear that all preventive measures and interstate cooperation must be in conformity with international law, she added.
The floor then opened up to the Interactive Forum format.
The representative of the Czech Republic pointed out that an expanded or widened definition of crimes against humanity in national law or other international instruments which go beyond the current definition contained in draft article 2 would fall outside the scope of the draft articles and any future convention based on that draft. Paragraph 46 of the commentary states that “any elements adopted in national law which do not fall within the scope of the present draft articles would not benefit from the provisions set forth within them, including on extradition and mutual legal assistance unless the States concerned so agree,” he noted.
The representative of Cameroon, explaining the doubts of States which are not party to the Rome Statute over that Statute’s inclusion, stressed that the rules of international law and their application are subject to the criteria of objectivity. The rules of law cannot be applied to a State that is not a party, he emphasized, also calling attention to paragraph b of article 13 of that Statute. Can the Rome Statute be applied to all or just some and what about the right to veto, he asked. Against this complex backdrop, he stressed that non-party States would continue to say no to anything that leads to an unknown destination.
The meeting then resumed to formal interventions.
YARDEN RUBINSHTEIN (Israel) said the draft articles containing the definition of crimes against humanity should be as widely acceptable as possible. However, an approach that recreates the Rome Statute word-for-word is not the most effective means of gaining wide acceptable, she said, pointing out that the two legal vehicles are like “apples and oranges”, with the one under discussion meant to be applied in domestic courts rather than an international tribunal. “Given that these are two different legal systems, it may be erroneous to equate them,” she added. The scope of the draft articles must focus on the most severe crimes. Therefore, there must be safeguards to prevent the abuse and misuse of this important tool, she said.
SINA ALAVI (Liechtenstein), aligning himself with the European Union, voiced his support for the elaboration of a convention as an important step to close a gap in the international criminal justice system. In that regard, the Commission’s draft articles for providing an excellent basis for such work. Under the definition of crimes against humanity as currently reflected in draft article 2, persecution may only constitute a crime against humanity if it is in connection with any of the other acts enumerated in that draft. Since this formulation notably limits when an act of persecution may constitute a crime against humanity, he proposed amending draft article 2, paragraph 1(h) to incorporate references to war crimes, genocide and the crime of aggression. If phrasing from the 2017 version of the draft articles — “persecution in connection with any act referred to in this paragraph or in connection with the crime of genocide or war crimes” — is reinstated, then the crime of aggression must be added to listed crimes, he said.
ALAA NAYEF ZAID AL-EDWAN (Jordan) said that a convention based on the draft articles would not infringe on States’ sovereignty or their immunities under international law. Rather, it would strengthen States’ ability to exercise jurisdiction over crimes against humanity and facilitate inter-State cooperation in preventing such crimes and punishing their perpetrators. He welcomed that the definition in draft article 2 largely follows that contained in the Rome Statute, which reflects customary international law. He also spotlighted the “important safeguard” contained in paragraph 3 of draft article 2, which ensures that such definition does not limit the development of the definition of crimes against humanity in general international law. In addition, for purposes of the draft articles, States’ obligations are measured against the definition in draft article 2. He also suggested the deletion of paragraph 1 of draft article 3, as it is inconsistent with the draft articles’ purpose as a law enforcement instrument against individual perpetrators of crimes against humanity. “We do not want to be in a situation” where national judges or prosecutors bring charges against a foreign State based on the draft articles, he stressed.
ANDY ARON (Indonesia), underscoring the importance of draft article 2, said the International Law Commission took its first two paragraphs almost verbatim from the Rome Statute. The additional “without prejudice clause" in paragraph 3 provides States with the flexibility of using either the customary international law or their national law definition of crimes against humanity. To this end, Indonesia enshrined the definition and the prohibited acts for these crimes in its national law. Underscoring the importance of taking into accounts States’ concerns on draft article 2 paragraph k, he encouraged further discussions on the list of offences. He noted that the last phrase of draft article 4(a) is outstretched and unclear, while also imposing on States the obligation of prevention. The phrase leaves multiple interpretations on how broadly "other appropriate preventive measures" should apply in practice, he added, pointing to the need for clarifying its scope to ensure legal certainty.
ALIS LUNGU (Romania), associating herself with the European Union, welcomed the approach of the Commission not to depart from the similar provision of the Rome Statute that defines crimes against humanity in order to ensure consistency and prevent normative fragmentation. Noting that the drafting reflects a solid contemporary definition of these crimes, widely endorsed and accepted, she said it is the product of a historical evolution. Further, she endorsed the decision of the Commission not to include the definition of “gender” in the draft articles, pointing to the existence of other terms that are left undefined. Detailing draft article 3, she supported the inclusion of a clause, stating that no exceptional circumstances whatsoever may be invoked as a justification of crimes against humanity. On draft article 4, similar provisions related to the obligation to take preventive measures are included in several multilateral treaties addressing crimes since the 1960s, she noted, underlining the consistence of the Commission’s approach with existing treaty practice.
The floor then opened up to the Interactive Forum format.
The representative of Cameroon said comments by the International Law Commission members feed into the draft articles, so the Sixth Committee can ponder the spirit in which the commentary was drafted. None of the Commission’s commentary is set in stone, he added. He also suggested that racism and xenophobia be added in draft article 2(j), which addresses apartheid. Noting that there is no specific definition of murder under draft article 2(a), he suggested adding the idea of planning, so it can be determined whether attacks were planned regardless of the entity. Moreover, the definition of extermination in draft article 2(b) is not specific enough.
The meeting then resumed to formal interventions.
Ms. MARUBAYASHI (Japan), noting that it is desirable for draft article 2 to gain broad support, underscored the need to carefully deepen discussions on that text. Clarity on the elements of crime — which is the general principle of criminal law — must be taken into consideration, she stressed.
BRIAN KELLY (United States) stressed that some of the terms used in draft article 2 — “the most important provision of the draft articles” — lack clarity, which could create challenges for prosecutions under any future convention based on this definition. In this regard, he spotlighted the important role that the International Criminal Court’s Elements of Crimes have played in clarifying the definition of crimes against humanity in the Rome Statute. In comparison, draft article 2 does not include the definition of “gender” found in article 7 of the Rome Statute, he said, citing this as a positive change. Turning to draft article 3, he welcomed that it draws inspiration from article I of the Convention on the Prevention and Punishment of the Crime of Genocide in providing that States undertake to prevent and punish crimes against humanity and clarifying that crimes against humanity are crimes under international law, whether or not committed in time of armed conflict. With respect to draft article 4, he commended the clarification that efforts to prevent crimes against humanity must be undertaken in conformity with applicable international law.
CHANG WUN JEUNG (Republic of Korea), underlining the necessity of a comprehensive international convention, stressed that the draft articles — if adopted — would provide a suitable legal basis for strengthening law enforcement cooperation among States particularly in the absence of bilateral treaties on mutual legal assistance or extradition. While there may be diverse opinions and concerns on the draft articles, most of their content — including the definition of crimes against humanity in draft article 2 — essentially reflects customary international laws, existing treaties and national practices. Since ensuring conformity with the Rome Status on definitions is essential for preventing any confusion, she voiced her support for the current formulation and the deletion of the phrase “in connection with any acts referred to in this paragraph” from draft article 2, paragraph 1(h). Paragraph 3 of that same draft article notably gives Member States flexibility to elaborate on their own definitions and in turn refine their domestic laws to further strengthen investigation, prosecution and punishment, she pointed out. While it is not possible to satisfy every Member State with a single convention, it is nevertheless high time for Member States to demonstrate their collective will to prevent egregious crimes against humanity and protect the innocent, she emphasized.
Mr. MAINERO (Argentina) voiced support for the International Law Commission’s approach in formulating draft article 2, by using the broadly accepted definition set out in article 7 of the Rome Statute. While acknowledging that not all States are a party to the Statute, he said that using it as the basis for a convention is nonetheless the right approach, as its definition was reached as a result of the evolution of customary law and extensive jurisprudence from domestic courts and international tribunals. Nonetheless, the definitions of crimes set out in the Statute are not set in stone, as the essence of international law is its evolution on the basis of the practice of States; it is simply a model, and the Committee can, in the future, consider others. For example, he pointed out that the definition of “enforced disappearances” in the International Law Commission’s draft articles, also based on the Rome Statute, differed from the definition contained in the 2006 International Convention for the Protection of All Persons from Enforced Disappearances, and could, in the future be incorporate elements of the latter instrument’s definition, as it reflects the state of normative development of the crime.
JUAN GÓMEZ ROBLEDO VERDUZCO (Mexico) said that draft article 2 reflects the normative progress that has been made on this topic in various international tribunals and treaties. An example of such evolution is paragraph 1 of that draft article, which states that crimes against humanity are categorized as such only if they are committed as part of a systematic attack against civilians. He said that, to incorporate this element in the draft articles gives the definition the correct context, as the draft articles pertain to the most-serious crimes of international significance. He also pointed out that another reflection of this evolution is that the draft articles do not include a definition of “gender”, which allows for future interpretation to consider subsequent developments in human rights and international criminal law. Further, he welcomed the draft articles’ inclusion of a “without prejudice” clause, which leaves open the possibility for other instruments — such as regional human rights instruments or national legislation — to contain broader definitions. Regarding comments by the representative of Cameroon as to the value of the commentaries, he said that — as a former member of the International Law Commission — the Commission attaches the same importance to the commentaries as it does to the text of the draft articles.
The floor then opened up to the Interactive Forum format.
The representative of Cameroon, commenting on the intervention by Mexico’s delegate, said that, once the articles have been adopted, the commentary would only serve to help understand the spirit in which they were adopted. It is worthwhile to refer to the commentary to understand the wording of the articles, he noted, underlining that delegations cannot draw on the commentary to understand the legal value of the decision. To interpret a treaty, one looks at its letter; but the spirit in which one interprets the document draws to the preliminary work, including the negotiations, he said.
The meeting then resumed to formal interventions.
JASSIM ABDULAZIZ J. A. AL-THANI (Qatar) stressed the importance of maintaining the phrase “widespread and systematic attacks” in draft article 2. Crimes against humanity, when defined as constituting a widespread attack, means an attack targeting a large number of victims. A systematic attack means that crimes against humanity are crimes committed in implementation of a premeditated policy or plan. It is important to ensure consistency in terminology between the draft articles and relevant United Nations Conventions, he stressed, adding that this is a logical starting point and will advance dialogue and lead to consensus. As these terms have been discussed in other contexts, consistency in terminology must be ensured, especially with terms such as enslavement, torture or forced disappearance. In addition, the term “gender” means male or female; there is no other interpretation nor other concept covered by this term, he said.
PETER MOHAN MAITHRI PIERIS (Sri Lanka), encouraging all to give some thought to the process of labelling someone as the enemy of humanity, warned that denying the humanity of others would be acting in a manner repugnant of all tenets of law. Establishing universal jurisdiction is what the Committee is engaged in now, he stressed, underscoring that it must simultaneously establish a practice of accountability while creating norms against radical evil. On draft articles 2, 3 and 4, he noted the exhaustive definition and general obligations. These are a reminder of what most choose to ignore, he said, encouraging the Committee to examine the far-too-wide definition of “extermination” in draft article 2, paragraph 1(b). Despite aggression being a main feature in the Rome Statute, this draft article notably does not contain any such direct references. It cannot miss the transition from aggression to atrocity, he insisted, calling for language on aggression as a crime against humanity. He also pointed out that the ”without prejudice clause” in draft article 2 leaves room for a broader definition which may be found elsewhere. While this provides flexibility, it also leaves room for arbitrariness. “Where that is going to be is anyone’s guess,” he said, adding: “We have to make the law clear, easily understood and predictable if we are to ensure easy, efficient, affordable access to laws governing the prevention of crimes against humanity and the rule of law.”
LIU YANG (China) said it would be difficult to reach consensus on draft article 2, which draws verbatim from article 7 of the Rome Statute, recalling that many States decided not to accede to the latter in 1988 after lengthy debates and differences. Responding to comments by some delegates that article 7 refers to customary international law, he begged to differ, noting that, even without considering non-State parties to the Statute, State parties do not have a definition of such crimes in domestic law, or have a different definition. Further, the definition of crimes against humanity was too broad and included torture, enforced disappearances and apartheid, which have dedicated conventions addressing them. In addition, some elements of draft article 2 lack clarity, with paragraph 1(k) containing vague phrasing such as “other inhumane acts”. He called for further discussion on crimes against humanity that occur in non-conflict contexts, and voiced concern about paragraph 1 of draft article 3, whose language gives the impression that States can perpetrate crimes against humanity. Given that the Conventions on genocide and torture do not contain such a provision, paragraph 1 can be removed, he added.
AMADOU JAITEH (Gambia), welcoming the obligation placed on States to prevent and punish crimes against humanity, whether committed in armed conflict or not, said it is the responsibility of every actor to the conflict to observe the rules-based order that governs it. However, he called the International Law Commission’s failure to include the definition of “gender” unacceptable. To this end, he placed a reservation on draft article 2, paragraph 1(h) until the definition is revisited and gender is conceived to mean a man and a woman. Moreso, the rationale provided by the Commission was unacceptable, he stated, adding that, in the Gambia, the definition of “gender” is “nothing else other than man and woman”. He, thus, reiterated a call for reconsideration of the Rome Statute’s definition of “gender”. Further, he suggested deleting draft article 2, paragraphs 1(k) and 3 due to their ambiguity and lack of clarity. Welcoming the suggestions of expanding the list of crimes under draft article 2, he said other crimes that delegations may deemed necessary and relevant be added.
Ms. RUSSELL (New Zealand) said her delegation is pleased that the definitions have been formulated consistently with the Rome Statute. The elaboration of a new convention would not affect the status of non-parties to the Court. She voiced support for the substantive change made by the International Law Commission in not including the Rome Statute definition of “gender”. She further voiced support for the inclusion of a “without prejudice” clause in draft article 2 to ensure that the definition of crimes against humanity in this treaty does not pull into question broader definitions, which may exist in international law or State or domestic law. Regarding draft article 3, she welcomed the inclusion of text which makes it clear that the obligation being referred to is that of preventing and punishing crimes against humanity. She also said she supports making it clear in this draft article that crimes against humanity are crimes under international law, whether or not they are committed in a time of armed conflict.
LUCIA TERESA SOLANO RAMIREZ (Colombia) stressed that a substantive definition of punishable conduct enshrined in domestic law must be fully compatible with the generic definition contained in draft article 2. The specific list of acts constituting crimes against humanity and their definition should be as broad as those in the Rome Statute or other international treaties. In that vein, the definition of persecution should use concepts contained in customary international law and the jurisprudence of regional courts; the definition on enforced disappearance should use the one contained in relevant conventions. While the list of acts in subparagraph k is not exhaustive, it could lead to too broad of an interpretation which does not meet the Commission’s high standards in identifying acts. To ensure legal certainty, the preamble should refer to the adoption of a criteria on restrictive interpretation and to the principles of nullum crime sine lege and in dubio pro reo. On draft article 3, she called for a separate sentence in paragraph 2 making it clear that crimes against humanity are international crimes regardless of their criminalization in natural legislation. On draft article 4, she pointed out that the obligations it sets forth are too vague. Further, subparagraphs a and b of paragraph 4 are somewhat confusing regarding jurisdictional scope, she said.
The floor then opened up to the Interactive Forum format.
The representative of Brazil expressed a doubt concerning the way persecution is drafted, questioning whether its current phrasing could lead to its being interpreted as not a standalone crime, but a simple means to commit another crime against humanity, contributing to the theoretical risk of double jeopardy in its prosecution. In this context, he questioned whether persecution should not be a crime in itself.
The meeting then resumed to formal interventions.
Mr. SKACHKOV (Russian Federation), noting that the Rome Statute is not the only document containing a definition of crimes against humanity, said the Convention of the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity — drafted on the basis of the Nuremberg and Tokyo Tribunals — also contains such definition. “Why not take this definition as the basis for our work,” he enquired. Noting the absence of a clear definition in the draft articles, he said the subjective side of what constitutes this crime is weakly worded. To this end, he questioned the added value of drafting a new convention, arguing that the methodology of listing the elements of the offences is not the right approach. Recognizing the non-exhausting nature of the list, he suggested adding references to unilateral coercive measures and other crimes, including neo-Nazism; inciting the commission of crimes; and financing coups d’état and uprisings. He also voiced his support for the proposals to include in the draft articles the need to avoid meddling in the domestic affairs of States.
Ms. GRANDJEAN (Belgium), associating herself with the European Union, welcomed that draft article 2 similarly defines crimes against humanity, as does article 7 of the Rome Statute. She also welcomed the deletion of the definition of “gender”, underscoring that any convention that does not reflect in its definition of “gender” the current state of play in international law runs the risk of marginalizing lesbian, gay, bisexual, transgender and intersex (LGBTQI) persons and other groups and could lead to greater impunity for sexual and gender-based crimes, which could constitute crimes against humanity. Draft article 3 must clearly state in paragraph 3 that no exceptional circumstances whatsoever, such as armed conflict, internal political instability or any other public emergency, may be invoked as justification for crimes against humanity. She underscored the importance of paragraph b of draft article 4, which stresses the need for international cooperation between States, adding that States must also cooperate with relevant intergovernmental organizations. While the latter undoubtedly have a role in preventing crimes against humanity, they also have a responsibility to punish such crimes, she said.
JOSE JUAN HERNANDEZ CHAVEZ (Chile) suggested that the general criteria in draft article 2 be adjusted to reflect normative developments since 1998 and respond to the draft articles’ aim to prevent and punish the commission of crimes against humanity — an objectively which is notably different from the Rome Statute. A future convention will have to be applied by national tribunals which have the jurisdiction to prosecute any crimes against humanity. As such, the Committee should not distance itself fully from the Rome Statute but, rather, discuss the incorporation of certain elements and conduct defined in draft article 2 to achieve coherence. In that regard, draft article 2, paragraphs 1(k) and 3 should be maintained since they do not prevent States from subscribing to more a detailed definition of crimes. Welcoming draft article 3 as an acceptable basis for discussions on implementing obligations, he voiced his support for the first paragraph in reflecting that States already have an obligation not to commit crimes against humanity under international law. Paragraph 2 should have an opening sentence that is similarly worded to paragraph 1 of the same draft article so as to convey that States already have an obligation to prevent and punish such acts.
Mr. KHNG (Singapore), addressing draft article 4, said paragraph b, concerning the obligation of prevention of crimes against humanity through cooperation with other States, relevant intergovernmental organizations and other organizations, leaves room to clarify the scope of States’ cooperation in this regard so they understand the nature of their commitment. The same applies to draft article 9, which requires States to make a preliminary inquiry, and draft article 14, which pertains to the obligation of States on rendering mutual legal assistance, he said, observing that the phrasing seems to imply the need for a general undertaking by States rather than calling for specific actions.
Ms. CROCKETT (Canada), supporting the Commission’s decision not to define gender, said the exclusion of this concept might help bridge the divide. Suggesting broadening some definitions in article 2, she said the article could further clarify the definition of sexual violence and include forced marriage. She also recommended against implying that only grounds recognized as universally impermissible under international law could constitute prosecution, noting that international law also includes treaties with varying groups of States parties subject to different obligations. With regards to the definition of “an attack directed to any civilian population”, she said States should consider whether to retain the requirement that the act be committed pursuing to a State or organizational policy in light of existing customary international law and the decisions of international tribunals. Pointing to other definitions that have evolved over time, she highlighted the definition of “torture” and “forced pregnancy”. Additionally, she voiced her support for the inclusion of the “without prejudice” clause in draft article 2.
KEMAL ONUR EKREN (Türkiye) said, in regards to the terms “widespread attack” and “systematic attack”, it might be preferable that the requirements for those terms be accepted as two distinct elements — both of which must be met, rather than as an alternative to the other. He also pointed out that the Rome Statute stipulates that persons are responsible for the crime of genocide, while on the other hand, the first paragraph of draft article 3 indicates that States have the obligation not to engage in acts that constitute crimes against humanity. As States cannot be the perpetrator of the crime of genocide, they cannot be the perpetrator of crimes against humanity either. The commentary to draft article 3 is not sufficient or convincing. Deleting the first paragraph of article 3 will be adequate. Regarding draft article 4, further clarification is required on the obligation of prevention, he said, voicing concern that the current approach creates a broad and potentially ever-expanding set of obligations for States in relation to crimes against humanity.
ALINA J. LLANO (Nicaragua) underlined her belief in an impartial international justice that is not selective and not politicized, does not practice double standards and is complementary to national justice systems. Voicing her concern that many of the proposed legal provisions have been linked to the Rome Statute, she recalled that this Statute is not a universal agreement. Some of those advocating for progress on this topic, despite the lack of international consensus, do not promote with the same conviction the urgent need to address fundamental causes such as underdevelopment and structural problems, she observed. As it is the sovereign right of each country to decide on its own definitions and its own domestic legislation, any international legal instrument must respect the purposes and principles of the Charter of the United Nations, respect the sovereign equality of each Member State and be consistent with national legislation.
CHARLENE ARAVEJO BERIANA (Philippines), recalling her country’s legal and policy framework as set out in its Republic Act 9851, adopted in 2009, voiced her support for draft article 2, with the following suggested revisions: article 2(1)(a) could read “wilful killing” instead of murder; in article 2(1)(d), the word “arbitrary” could be added before “deportation or forcible transfer of population”; and in article 2(1)(h), “sexual orientation” could be added after “gender”. Turning to draft article 3, she voiced support for the inclusion of the general obligation of States to not engage in acts that constitute crimes against humanity and the general obligation to prevent and punish crimes against humanity, with no exceptional circumstances being invoked as a justification of such crimes. On draft article 4, she supported its inclusion, noting that her country has complied with this obligation by taking legislative measures to prevent crimes against humanity.
Ms. FALCONI (Peru), addressing draft article 2, noted that crimes against humanity can be committed in time of armed conflict or in time of peace. Turning to draft article 3, she said that the persecution of a group or individual should be considered as a basis for crimes against humanity. Additionally, the forced disappearance of persons in article 1, paragraph 1(e) should drop the reference to “an extended period of time”. Pointing out that the draft articles contain a preventive approach to administrative, judicial and other preventive measures and cooperation with other States, she said the effective punishment of these crimes constitute an important aspect.
RIYAD KHADDOUR (Syria) said the fundamental problem in defining crimes against humanity is not related to the categories of crimes or violations. The fundamental problem is the question of adapting those acts and the mechanism for including them in the context of crimes against humanity, namely the problematic concept of widespread or systematic attack. “Who decides that? What are the criteria for determining that a widespread or systematic attack took place?”, he asked. The definition of crimes against humanity was unfamiliar until the end of the 1990s, he added, noting that neither the International Criminal Tribunal for the Former Yugoslavia or the International Criminal Tribunal for Rwanda adopted that vague definition. The definitions in both Tribunals were more specific and accurate, while the definition before the Committee is broad, vague and limited to the requirement of a widespread or a systematic attack against a civilian population, without specifying what is meant by any of the concepts therein. The practical application of prosecution of perpetrators of such crimes has given rise to inconsistencies and contradictions. The proposed definition is nothing more than an expression of a hypothetical situation that paves the way for unprecedented cases of conflicts of jurisdiction, laws and judicial ruling based on the political orientation of States. It is not in the service of justice or victims, he stressed.
LOUREEN O. A. SAYEJ, observer for the State of Palestine, voicing her support for a broader definition of “any civilian population”, agreed with the jurisprudence and commentaries that the motives of the perpetrator for partaking in an attack is irrelevant. The policy referenced in “pursuant to or in furtherance of a State or organizational policy” need not necessarily be formalized, but rather can be inferred from the way acts are committed. She further pointed out that a policy adopted by regional or local organs of a State could also satisfy required elements. Concerning the acts themselves, she emphasized that the legality requirement on the presence of people in the deportation or forcible transfer of populations has to conform with international law. Since the draft articles do not confer jurisdiction to an international tribunal, restricting the scope of prevention and punishment is not necessarily applicable, especially since the intentional and severe deprivation of human rights by the reason of a group’s identity is in itself a crime against humanity. She also underscored that the obligation to take domestic measures in draft articles 3 and 4 must not violate international law norms, including rules on the use of force and human rights law.