Speakers Debate National, International Measures Addressing Crimes against Humanity, as Sixth Committee Continues Resumed Session

As the Sixth Committee (Legal) continued its resumed session today to consider the International Law Commission’s recommendation to codify a convention on crimes against humanity, speakers deliberated over two clusters of draft articles addressing measures States should take on national platforms regarding those crimes, while also exploring the methods of international cooperation between countries when considering extradition of alleged offenders.

Germany's representative was among many delegates who underscored the importance of draft article 6.  It imposes a legal obligation to enact criminal legislation on crimes against humanity, he said, adding that it also sets out a number of elements to make sure that crimes against humanity can be successfully prosecuted, including modes of liability and command responsibility, appropriate penalties and liability of legal persons.

However, Egypt’s representative pointed out that the current formulation of draft article 6 is very general and might jeopardize the rights of the accused.  Further, its mention of command responsibility is not specific enough, and its discussion of adopting “all necessary and reasonable measures” to prevent such crimes opens the door to explanations that could be at the expense of the accused without accounting for facts that make adopting such measures impossible in some cases.

The representative of Canada was among several speakers who also suggested changes to that provision, proposing broadening the scope of the responsibility of commanders and superiors in draft article 6, paragraph 3 to include the criminal responsibility of persons that may effectively be acting as superiors or commanders.

Slovakia’s representative, meanwhile, called for a more detailed regulation on command responsibility, comparable to the one that appears in the Rome Statute, while noting that he also understood the Commission’s intention not to be overly prescriptive and to allow States to implement the provision bearing in mind their national laws, practice and jurisprudence.

The representative of the European Union, in its capacity as observer, addressing “appropriate penalties” noted in that article, recalled that the European Union and its member States oppose capital punishment in all cases and under any circumstances.  The Rome Statute provides for imprisonment for a number of years not exceeding 30 years or a term of life imprisonment when that is justified by the crime’s extreme gravity and the circumstances of the convicted person.  This is a reflection of the fact that the large majority of States have abolished the death penalty or no longer practise it, she added.

Portugal’s representative, during the Committee’s Interactive Forum format, pointed out that his country would not be able to extradite to a country that would apply the death penalty to those crimes — a point echoed by the representative of Mexico during his formal intervention when he joined other delegations in voicing strong opposition to the death penalty.

However, Singapore’s representative, responding, observed that certain delegations seek to promote their own agenda on the death penalty.  Pointing to the absence of international consensus against the death penalty and international law prohibiting its use, he recalled that a number of General Assembly resolutions reaffirm the sovereign right of all countries to develop their own legal systems, including determining the legal penalties in accordance with their international law obligations.

Saudi Arabia’s representative, echoing that view, said no international consensus concerning capital punishment exists and that international law does not prohibit such punishment.  Every country has the sovereign right to determine its own criminal justice system and legislation, she noted.

Many delegations also addressed draft article 7 on the establishment of national jurisdiction, with some underscoring its importance in reducing the impunity gap, while others pointed out its shortcomings.

Iran’s representative, noting that the draft article fails to address the question of priority of jurisdiction, underlined the importance of a connection between the State wishing to exercise its jurisdiction and a State of the alleged person’s nationality.  He suggested adding a paragraph addressing the necessity of such connection to exercise jurisdiction in draft article 13.

The representative of the Russian Federation, in the same vein, said draft article 7, paragraph 3 is preconditioned for confusion and the possibility of a legal conflict.  He suggested simplifying the article and reflecting that the establishment of jurisdiction over crimes committed outside of the territory of a State should not lead to the violation of sovereignty of other States.

Sierra Leone’s representative highlighted draft article 8 and the requirement of “prompt, thorough and impartial” investigations, saying that text is helpful in addressing potential loopholes of a State carrying out a sham investigation and undermining the essence of its obligations under this provision.

Delegations also tackled the draft articles on extradition and the obligation to either extradite or prosecute — aut dedere aut judicare — highlighting the relationship between the draft articles on national jurisdiction and extradition.

China’s representative said the provision “aut dedere aut judicare” in draft article 10 should not be interpreted as recognizing or permitting exercise of universal jurisdiction.  More so, cooperation between States and international tribunals should not be included in the clause.

The representative of the Republic of Korea, pointing out that draft article 13 on extradition provisions does not provide grounds for refusal of extradition in detail, said States should refine their domestic law to fully reflect the purpose of the draft articles.

Qatar’s representative highlighted a principle enshrined in the Constitutions of a number of States including his:  that States shall not extradite their own nationals.  The provisions of draft article 13 should not in any way be interpreted as an obligation on a State to extradite its nationals, he emphasized.

Addressing draft article 15, delegations also discussed the important role of the International Court of Justice in the settlement of disputes, with several speakers noting the careful balance struck in that text, particularly on its current formulation that reflects the seriousness of the crimes against humanity.

However, the representative of the United States, while recognizing the important role that the International Court of Justice can play in settling disputes concerning the interpretation or application of any future convention, also welcomed the inclusion of a process by which States could declare that they do not consider themselves bound to said conventions or otherwise opt out of the Court’s jurisdiction.  Such instruments are more likely to be widely ratified by States, he observed.

Nonetheless, Romania’s representative, on that note, observed that such a stance fails to account for the important role the Court plays in the legal order created by obligations in treaties.  Urging Member States to be cautious when analysing the opt-out clause in draft article 15, she stressed that the Court is essential for ensuring the application of treaties.  Without it, “substantive obligations would be reduced to empty words,” she stressed. 

Also speaking during the debate on Thematic Cluster 3 were representatives of Sweden (also for Denmark, Finland, Iceland and Norway), Philippines, Czech Republic, Colombia, Jordan, United Kingdom, Austria, Italy, India, Netherlands, Cameroon, Australia, Romania, Japan, United States, Argentina, Mexico, Qatar, Belgium, Chile, Russian Federation, Sri Lanka, Türkiye, Brazil, Ethiopia, Gambia, El Salvador, as well as an observer for the State of Palestine.

Also speaking during the debate on Thematic Cluster 4 were representatives Iceland (also for Denmark, Finland, Norway and Sweden), Germany, Czech Republic, Colombia, United Kingdom, Iran, Brazil, Portugal, Slovakia, Italy, Cameroon, Sierra Leone, Australia, Japan, Mexico, Belgium, Chile, Canada, Russian Federation, Sri Lanka, Argentina, China, Singapore, Senegal, Nigeria, as well as a representative of the European Union and an observer for the State of Palestine.

The Sixth Committee will meet next at 10 a.m. on Thursday, 13 April, to continue its work.

Thematic Cluster 3:  Draft Articles 6, 7, 8, 9 and 10

SIMONA POPAN, representative of the European Union, in its capacity as observer, observed that, while many States have already criminalized crimes against humanity in their domestic law, others have not yet done so.  Draft article 6 is key as it creates obligations for States to take measures to ensure that crimes against humanity constitutes offenses under national criminal law, thus closing a lacuna that may prevent prosecution and punishment of such crimes.  Regarding “appropriate penalties”, she recalled that the European Union and its member States oppose capital punishment in all cases and under any circumstances.  The States parties to the Rome Statute dealt with this issue by providing for imprisonment for a number of years not exceeding 30 years or a term of life imprisonment when that is justified by the extreme gravity of the crime and the individual circumstances of the convicted person.  This reflects the fact that the large majority of States have abolished the death penalty or no longer practise it.

She went on to note that draft article 7 does not exclude the exercise of a broader jurisdictional basis, if such a basis is provided for under relevant national law.  She encouraged States to effectively close the gap, as impunity for these heinous crimes must not be allowed.  Further, although not specifically referred to in draft article 8, the investigation of crimes against humanity must be conducted in good faith.  Noting some States’ concerns regarding the obligation to “immediately notify” in draft article 9, she pointed out that the commentaries recognize that sometimes the situation requires more flexibility; this obligation needs to be understood against this background.  On draft article 10 and the issue of amnesties, she said the Rome Statute does not include such a provision.  However, the International Criminal Court Pre-Trial Chamber found that “granting amnesties and pardons for serious acts, such as murder, constituting crimes against humanity is incompatible with internationally recognized human rights”, she noted.

JULIA FIELDING (Sweden), speaking also for Denmark, Finland, Iceland and Norway, voiced support for the obligation under draft article 6 pertaining to criminalization under national law and welcomed paragraph 5.  She, however, noted that this paragraph has no effect on any procedural immunity that a foreign State official may enjoy before a national criminal jurisdiction.  Turning to draft article 6, paragraph 7, she stressed that this provision should, under no circumstance, include the death penalty as an applicable penalty.

It is instrumental that States establish a relatively wide range of jurisdictional bases under national law, she said, while noting that draft article 7, in addition to territorial jurisdiction, obliges States to establish active personality jurisdiction over nationals.  She also welcomed the fact that this article does not exclude the exercise of a broader jurisdictional base, if provided for in national law.  To support the aut dedere aut judicare obligation, national courts may be required to resort to a jurisdictional base other than just territorial or active personality jurisdiction to try the alleged offender if he or she is not extradited or surrendered.  In that regard, she welcomed a broad range of jurisdictional bases encouraged by the draft articles.

AHMED ABDELAZIZ AHMED ELGHARIB (Egypt) said that the current formulation of draft article 6 is very general and might jeopardize the rights of the accused due to the specific nature of crimes against humanity.  Further, the draft article’s mention of command responsibility is not specific enough, and its discussion of adopting “all necessary and reasonable measures” to prevent such crimes opens the door to explanations that could be at the expense of the accused without accounting for facts that make adopting such measures impossible in some cases.  Noting that this language is mostly taken from the statutes of some international criminal courts that pertain to other international crimes, he urged consideration of how to improve the drafting of this article considering the broader scope of crimes against humanity.  Turning to draft article 7, he reiterated his delegation’s reservations regarding paragraph 2 because “we are consecrating here the universality of jurisdiction”, which is not accepted by all States.  There must be a clear nexus between the State exercising jurisdiction and the crime committed, he stressed, underscoring the need to guard against the imposition of jurisdiction for political considerations.

CHARLENE ARAVEJO BERIANA (Philippines) noted that her country’s Republic Act 9851 remains the legal and policy framework against which she submitted preliminary comments on the draft articles.  On draft article 6, as crimes against humanity already constitute an offence under Philippine national law, she noted her support for working on the basis of the language of paragraph 1.  On paragraph 2, national law specifically states that a person will be criminally liable and penalized if he or she commits such a crime, or orders, solicits or induces its commission, or contributes in any other way.  While paragraph 3 is also covered under national law, she would propose the insertion of the element of “effective control”, so that superiors shall be criminally responsible for such crimes committed by their subordinates under their effective command and control, or effective control or authority.  Voicing support for the retention of the current text of draft article 8, her delegation reserved the right to revisit draft article 6, paragraph 8, as well as draft articles 9 and 10, she said.

MICHAEL HASENAU (Germany), associating himself with the European Union, underlined the importance of draft article 6 as it imposes a legal obligation to enact criminal legislation on crimes against humanity.  It sets out a number of elements to make sure that crimes against humanity can be successfully prosecuted, including modes of liability and command responsibility, appropriate penalties and liability of legal persons.  Draft article 7 further reduces the impunity gap by ensuring that States do not become safe havens for perpetrators of crimes against humanity, while providing flexibility for establishing jurisdiction with a wider scope in its paragraph 3.  Draft article 8 obliges States to ensure that their competent authorities proceed to a “prompt, thorough and impartial investigation whenever there is reasonable ground” for crimes against humanity being committed.  Draft article 9 adds an additional set of preliminary measures to be taken when an alleged offender is present on States’ territory.  Draft article 10 formulates the principle to either prosecute or extradite.  The provisions under Cluster 3 are key to effective prevention and deterrence, he stressed, adding that they provide a set of provisions for further negotiations, which needs to also cover the depth of regulation intended.

EMIL RUFFER (Czech Republic) said draft article 6 is indispensable for the implementation of the future convention, while spotlighting its neutral and generic wording.  Broad formulations of participation modes would enable States to specify them in their national criminal law, while retaining their existing terminology.  Welcoming the inclusion of paragraph 5, he emphasized that it has no effect on any procedural immunity of a State official before a national criminal jurisdiction.  To this end, he stressed that the immunities ratione personae enjoyed under customary international law by incumbent Heads of State and Government, including Foreign Ministers, would remain in place and apply within the new treaty.  Voicing support for draft article 6, he welcomed the inclusion of the provision on the liability of legal persons in paragraph 8.  Draft articles 7 and 9 constitute the prerequisite for the implementation of the obligation aut dedere aut judicare under draft article 10, he said, voicing his approval of the inclusion of the world “surrender” and noting that the draft article reflects different terminology used in various international instruments.

LUCIA TERESA SOLANO RAMIREZ (Colombia) said that draft article 6 is relevant as it avoids any discrepancy between crimes defined in international instruments and those considered in national law.  She also noted that national law can go beyond international customary law, and that States’ obligations with regards to command responsibility are also present in other international instruments and in the statutes of certain specialized tribunals.  On that point, she suggested that the draft articles contain a more-explicit description about superior status not impacting the penalization of a crime.  She also called for a focus on giving greater clarity to all provisions in this draft article in a holistic manner to avoid any discrepancies that might cause greater uncertainty later.  She also encouraged the Committee to consider the possibility of adding the crime of financing crimes against humanity.  Among observations made on other draft articles, she said that paragraph 2 of draft article 7 is a valuable mechanism for preventing impunity; including such provision in a future treaty on this topic would give greater legal security — particularly in light of the nature of the crimes being discussed.  She also welcomed paragraph 3 of that draft article.

ALAA AL-EDWAN (Jordan) said that criminalization under national law is a core component of a State’s obligation under the draft articles; without it, the perpetrators of crimes against humanity will not be effectively brought to justice, and inter-State cooperation will be limited, especially as regards to requests of extradition.  Therefore, he voiced his support for draft article 6, whose language is consistent with other international instruments.  On the responsibility of commanders and subordinates in paragraphs 3 and 4, he noted that the threshold for the commander’s responsibility is balanced, but the Committee may wish to discuss whether the term “had reason to know” is sufficiently clear.  He welcomed the inclusion of paragraph 2 of draft article 7 as an effective tool to bring the perpetrators of crimes against humanity to justice.  Requiring a State to either extradite or establish jurisdiction over an alleged offender who is present in its territory would ensure that such perpetrators have few avenues for impunities.  The same can be said regarding draft article 10 on “aut dedere aut judiciaire”, he added.

MICHAEL TOMBS (United Kingdom), noting that his country has already criminalized crimes against humanity under its national law, said that, given the complexity of such crimes, it is appropriate that draft article 6, paragraph 2 has various modes of responsibility, which also reflect the practice of international courts.  Voicing support for the inclusion of draft article 6, paragraph 6 — which requires States to ensure that statutes of limitations do not apply to crimes against humanity — he said this will allow survivors to seek judicial remedy when they are ready, which could be many years after the incident.  However, it may be helpful for the draft articles to note that the obligation in that draft article does not mean that States are obliged to prosecute crimes against humanity that took place before such crimes were criminalised in their law.  When draft article 7 is taken alongside the extradite or prosecute provision in draft article 10, the draft articles provide quasi-universal jurisdiction based on the presence of a suspect on the territory of a relevant State.  However, it is preferable for crimes to be prosecuted in the State in which they occurred, he said, adding that this reflects the reality that the authorities of the State in whose territory an offence is committed are generally best placed to prosecute that offence.

MOHAMMAD GHORBANPOUR NAJAFABADI (Iran), noting that the Convention against Corruption and the Convention against Transnational Organized Crime and the Protocols thereto serve as inspiration for the draft articles, recalled that they deal with two distinct sets of crimes different in nature.  Pointing out that draft article 6 repurposed articles from both Conventions, he suggested deleting it, while retaining paragraph 1, and leaving criminalization to national jurisdictions.  Draft article 7 fails to address the question of priority of jurisdiction, he said, underlining the importance of a connection between the State wishing to exercise its jurisdiction and a State of the alleged person’s nationality.  To this end, he suggested adding a paragraph addressing the necessity of such connection to exercise jurisdiction in article 13.  Turning to article 9, he expressed his dissatisfaction with the final clause of paragraph 3, which leaves the exercise of jurisdiction up to a State's “intention”.  He recalled that when an extradition request is made before a State where a suspect has been detained, "the State in whose territory the alleged offence has occurred" is given priority.

MAXIMILIAN GORKE (Austria), aligning himself with the European Union, welcomed the statute of limitations provision in paragraph 6 of draft article 6, but said that his delegation would have preferred a clear prohibition without States having to take respective measures.  On paragraph 7 of that draft article, he reported that Austria has already criminalized crimes against humanity with appropriate penalties, adding that existing national laws on this subject do not preclude States from engaging in a future convention.  In addition, the rules regarding establishing national jurisdiction in draft article 7 are well-established bases for criminal jurisdiction under customary and treaty law.  This draft article only requires a State to establish jurisdiction through national legislation — not to exercise such jurisdiction, unless the alleged perpetrator is present in the territory under the State’s jurisdiction.  Therefore, a future convention would not require States to exercise universal jurisdiction, as draft articles 8, 9 and 10 only allow States to exercise jurisdiction when an alleged perpetrator is present in their territory.  A connection between such perpetrator and the forum States is thus required, based on the territoriality principle, he added.

MATEUS KOWALSKI (Portugal), aligning himself with the European Union, said the current in-depth interactive discussions are refreshing, and suggested the model be followed in other Committee topics.  On draft article 6, paragraph 5, he underlined the importance of the provision that the person holding an official position does not exclude substantive criminal responsibility; this ensures that senior civil or military officials do have any type of immunity before their own courts.  Paragraphs 6 and 7 follow the same logic of ensuring accountability without undue restrictions.  While penalties must be in line with international human rights law, he voiced strong opposition to the application of the death penalty in any circumstance.  Stressing the importance of draft article 8, he affirmed that States have priority over the International Criminal Court in the exercise of their jurisdiction over crimes against humanity — but their willingness to conduct a prompt, thorough and impartial investigation is an important test.  He also welcomed the inclusion of the “aut dedere aut judiciaire” principle in draft article 10.

PETER KLANDUCH (Slovakia), associating himself with the European Union, observed that the Commission did not include incitement or conspiracy in paragraph 2 of draft article 6, even though the Convention on the Prevention and Punishment of the Crime of Genocide does address both.  Including these two modes of accessorial criminal responsibility would strengthen the preventative aspect of the draft articles.  Holding to account those responsible for inciting or conspiring to commit crimes against humanity might reinforce the overall deterrent effect.  Regarding command responsibility, he called for a more detailed regulation, comparable to the one that appears in the Rome Statute.  However, he also said he understood the Commission’s intention not to be overly prescriptive and to allow States to implement the provision bearing in mind their national laws, practice and jurisprudence.  On draft article 7, regarding jurisdiction over stateless persons, while the formulation is based on the 1979 Convention against the Taking of Hostages, States should seriously consider this jurisdictional basis every time, if there is a reasonable risk of impunity gap.  Draft article 8, in principle, applies to the State with territorial jurisdiction; it does not preclude States with other jurisdictional bases from investigating.  Regarding draft article 10, he said the obligation to prosecute should be interpreted in a way fully respecting the prosecutorial discretion.

ENRICO MILANO (Italy), associating himself with the European Union, voiced approval of draft article 6 as drafted, along with its provisions related to the responsibility of commanders and superiors and the non-inviolability of superior orders as a cause excluding criminal responsibility.  He also expressed support for the non-applicability of functional immunities to State officials in draft article 6, paragraph 5 and the non-applicability of statute of limitations to crimes against humanity under paragraph 6.  Turning to paragraph 7, he said penalties must be determined on the basis of an evaluation of the specific crime committed, the severity of the criminal conduct and the context of the commission.  In this regard, he underlined Italy’s position against the death penalty.  Endorsing draft article 6, paragraph 8, he noted that the liability of legal persons for the commission of crimes against humanity should be determined in accordance with the national law and could be of criminal, administrative or civil nature.  Further, he expressed support for articles 7 and 10, including the inclusion of the principle “aut dedere aut judicare” in the new convention.

The floor then opened up to the Interactive Forum format.

The representative of Egypt noted that convergence seems to exist on the fact that primacy should be given to the country where a crime was allegedly committed, which is consistent with his country’s position.  However, to shed light on his delegation’s concern with paragraph 2 of draft article 7 — regarding establishing jurisdiction based on the mere fact that an alleged offender is present in a country — he offered a hypothetical.  “Country X” and “country Y” are both parties to an international treaty based on the draft articles, and both have taken the necessary measures to criminalize crimes against humanity under national law.  “Country X” is where such a crime was committed — and is where evidence and witnesses are located — but its legislation implements the death penalty for such crime, which is its right under international law.  Against that backdrop, he asked whether “country Y” — whose only link is that the alleged criminal is present on its territory — will surrender such individual to “country X” or choose to prosecute nationally, “which is something we would perceive as problematic”.

The representative of India, noting that her delegation will later submit a detailed written revision, said that, in draft article 7, multiple States may have jurisdiction in a given situation and may wish to exercise it.  However, the draft articles do not explain how such a potential conflict can be resolved.  She therefore suggested suffixing the word “or” to subparagraphs a and b of paragraph 1 of the draft.  Similarly, paragraph 2, besides overriding the existing bilateral treaties existing between States on extradition, would further complicate the issue of jurisdictional conflict.  She suggested that primacy be accorded to the State that can exercise jurisdiction on the basis of at least one of subparagraphs a to c.

The representative of Portugal said his country would not be able to extradite to a country that would apply the death penalty to those crimes by reason of its own Constitution, as well as by reasons of international law, including the European Convention on Human Rights.  While there is an alternative to ask adequate assurances from the requesting State, this could be problematic.  "Who is entitled to provide the assurances of non-application of death penalty?  Is it the judicial body?  Is it the executive, the Government?”, he asked, noting that there might be practicabilities to be solved.

The representative of Singapore said that certain delegations seek to promote their own agenda on the death penalty.  Pointing to the absence of international consensus against the death penalty and international law prohibiting its use, he recalled that a number of General Assembly resolutions reaffirm the sovereign right of all countries to develop their own legal systems, including determining the legal penalties in accordance with their international law obligations.

The meeting then resumed to formal interventions.

MICHAEL IMRAN KANU (Sierra Leone) expressed general support for draft article 6, particularly welcoming the obligation contained in paragraph 1.  However, he noted that the International Law Commission was seemingly selective in listing, in paragraph 2 of that article, the various forms of criminal participation established in State practice at the national and international levels.  While the Commission included some inchoate crimes — such as attempts — it left out other forms, including conspiracy and incitement.  Pointing out that incitement as a form of accessorial liability is well-established in customary international law, he proposed the addition of incitement, and possibly, conspiracy to the list of forms of participation mentioned in paragraph 2.  On draft article 8, he said that its reference to a “prompt, thorough and impartial investigation” is helpful to address potential loopholes of a State carrying out a sham investigation and undermining the essence of its obligations under this provision.  Commenting on other draft articles, he noted that the Commission did not include an explicit clause precluding grants of amnesty or pardons for crimes against humanity.  He emphasized that, since the draft articles’ purposes include ending impunity for the perpetrators of such crimes, an express clause addressing amnesty — particularly in blanket form — “may be of high value”.

MATTHIJS BOERMA (Netherlands), aligning himself with the European Union, addressed draft article 6, noting that there is general development in both national and international criminal law aimed at strengthening the legal positions of victims of serious crimes.  He voiced support for the non-applicability of statutory limitation periods in criminal proceedings, which is also reflected in national legislation.  Welcoming the provision of aut dedere aut judiciaire in draft article 10, he noted it contributes to the fight against impunity, affirming the important role of international community courts and tribunals in that effort.

ZACHARIE SERGE RAOUL NYANID (Cameroon), voicing concern that the role of judges is not sufficiently highlighted, said this could lead to bungled proceedings where judicial proceedings are not sufficiently structured.  Further voicing concern about article 6(c), he said it is not enough to mention "necessary measures".  Modalities must be established as to whether a crime against humanity has been committed based on irrefutable facts.  The wording in article 6, paragraph 3 could suggest a priori that committing a crime against humanity is the preserve of soldiers alone and is committed only during armed conflicts, he noted, stressing that that supposition cannot remain.  Regarding draft article 7, “Each State” in paragraphs 1, 2 and 3 should read “Every State” in line with the idea of the forum State.  Regarding draft article 8, he said it is important to carry out rigorous national investigations, taking into account the considerable differences between various national legal frameworks and disparate practices of States in carrying out investigations.  Draft article 9 is acceptable — apart from paragraph 3, which does not respect appropriate procedural guarantees — provided that arrest measures and provisional detention measures in paragraph 1 are made conditional, upon an expressed request from a competent jurisdiction or the existence of judicial proceedings.  Regarding draft article 10, procedural guarantees must be integrated in accordance with the abundans cautela non nocet rule.

ALEXANDRA HUTCHISON (Australia) voiced support for the establishment of the minimum common standards framework in draft article 6 and the inclusion of paragraph 5.  Endorsing the requirement of “prompt, thorough and impartial” investigations in draft article 8, she said investigations should be conducted when a State has reason to believe that crimes against humanity are being committed or have been committed on its territory, not only when formal allegations have been made.  Draft article 9, paragraph 1 could be strengthened with the inclusion of considerations whether the relevant authorities are satisfied to a reasonable standard that the person has committed crimes against humanity prior to taking that person into custody; the potential application of international law with respect to immunity; and whether the State has received a request from another State to take the alleged offender into custody to ensure that person’s presence at extradition hearings.  She also suggested paragraph 1 should include a reference to the fair treatment obligations owed to alleged offenders held in custody.

NIDAA HUSSAIN ABU-ALI (Saudi Arabia) said that paragraph 3 of draft article 6 creates a new legal rule that runs counter to customary international law concerning the immunity of Heads of State and State representatives.  She then turned to paragraph 2 of draft article 7, whereby each State must take the necessary measures to establish jurisdiction over crimes covered by the draft articles in cases where an alleged offender is present in any territory under its jurisdiction, and it does not extradite or surrender that person.  She said that the text of that draft article — along with the preliminary measures contained in draft article 9 and draft article 10’s contemplation of the principle of “aut dedere aut judicare” — enshrine a principle of international criminal justice that is not applied in the same way in all States.  Such principle must therefore be clarified such that it is not misapplied for political purposes.  Turning to the subject of capital punishment, raised in the preceding interactive forum, she said that no international consensus concerning capital punishment exists and that international law does not prohibit such punishment.  Every country has the sovereign right to determine its own criminal justice system and legislation, she noted.

ALIS LUNGU (Romania), aligning herself with the European Union, noted that the country’s criminal code regulates crimes against humanity, closely following the definition provided in the Rome Statute.  She expressed support for the non-application of any statute of limitation for such offences as included in paragraph 5 of draft article 5.  She welcomed the inclusion in draft article 8 of a provision related to a “prompt, thorough and impartial investigation” whenever there are “reasonable grounds” to believe that crimes against humanity are being committed (or have been committed) in any territory under a State’s jurisdiction.  The preliminary measures provided in draft article 9 are quite common in national proceedings, she observed, with a view to avoiding the risk of flight by the alleged offender, as well as further criminal acts.  However, these preliminary measures must equally observe the standards related to fair treatment and full protection of the rights provided in draft article 11.

Ms. MARUBAYASHI (Japan) said it is necessary to consider whether the multifaceted examples in draft article 6, paragraph 2 are acceptable.  Her delegation would like to hear specific ideas on possible actions from other countries.  Noting the cause-and-effect relationship required in article 6, paragraph 3, she said “as a result of” should be added before “did not take all necessary and reasonable measures”.  Furthermore, “where appropriate” should be added after “to punish the persons responsible” to allow for appropriate measures according to the circumstances of each country. Necessary measures should include a wide range of alternatives to criminalization in each country, including, as an example, punishment by extradition to the International Criminal Court.  Paragraph 3 of article 6 on the non-applicability of statute of limitations must be amended to include a reference to the provisions of the International Convention for the Protection of All Persons from Enforced Disappearances.  Regarding articles 7 and 10, she said careful consideration should be given to a uniform provision requiring the establishment of jurisdiction in the event of non-extradition to gain the approval of a large number of countries.

CHRIS JENKS (United States), noting that crimes against humanity are not criminalized under his country’s law, said the Joseph R. Biden Administration supported a proposed statute to make these crimes offenses under the criminal law.  Recognizing differences in States’ domestic criminal systems along with different approaches to complicity, he said a future convention should allow for flexibility in how States implement their obligations.  On draft article 6, paragraph 3, he pointed to different ways States might approach the concept of command responsibility and encouraged delegates to share their views.  Turning to article 8, he said States should investigate allegations that their officials have committed crimes against humanity abroad.  Encouraging further consideration of draft article 9, he welcomed the inclusion of a provision in draft article 10 that requires States, if they do not extradite or surrender an offender in their territory, to submit the case to competent authorities for the purpose of prosecution.  More so, it would be useful to clarify the situation of alleged offenders who already have been the subject of genuine investigation or other proceedings by their State of nationality, he said, noting that duplicative or conflicting proceedings could cause international tensions.

MARTIN JUAN MAINERO (Argentina) expressed support for the inclusion of draft article 6, which would be key to a future convention as it establishes minimum standards for States to adopt in national legislation relating to investigating and criminalizing crimes against humanity.  Draft article 6 should also include an explicit obligation for States to take necessary measures to ensure that crimes against humanity will be investigated and prosecuted by civil courts, to avoid granting military tribunals the competence to try such crimes.  Only civil courts are in a position to guarantee independence and due process.  He also called for the inclusion of a prohibition against granting amnesty to those responsible for crimes against humanity, as amnesty does not comport with States’ duty to investigate, try and ensure effective judicial process for those who commit such crimes.  Turning to draft article 7, he said he agreed with the International Law Commission’s approach, which allows for establishing jurisdiction based on traditional principles — such as territoriality and personality — but also leaves open the possibility for States to determine other legal bases on which to investigate and try crimes against humanity.  He also added his support for the inclusion of paragraph 3 of that draft article.

PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico) noted that draft article 6, paragraph 2 lists the various measures that can be carried out to determine the levels of authority and participation in the commission of crimes against humanity, which are generally recognized.  He said he agreed with other delegations who have voiced their opposition to the death penalty under any circumstances, stressing — as expressed by Portugal in the mini-debate — that Mexico does not extradite if there is no assurance that the individual will not suffer that fate.  Regarding the obligation to prosecute or extradite, indicated in both draft article 7, paragraph 2 and draft article 10, he said that its inclusion is necessary considering the seriousness of crimes against humanity — regardless of the fact that this principle is already included in the Convention against Torture and other instruments related to enforced disappearance.

JASSIM ABDULAZIZ J. A. AL-THANI (Qatar) pointed out that there is a contradiction between the articles under Cluster 3 and the principles and norms established in international treaties and practices related to the immunity of State officials in exercise of their powers within national jurisdiction.  This matter is linked to the principle and right of national sovereignty established in international law.  Therefore, more clarification is needed.  It is important to achieve consistency between the immunity of States officials from foreign jurisdiction and the draft articles to avoid any contradiction that may arise, he emphasized.

Mr. PERILLEUX (Belgium), associating himself with the European Union, said his country incorporated crimes against humanity into its domestic legislation.  He suggested the wording “appropriate penalties” should exclude the death penalty in article 6, paragraph 7, while noting that, under Belgian criminal law, crimes against humanity are punished by life imprisonment.  Turning to draft article 9, he noted that preliminary measures for crimes against humanity should be interpreted as all other similar provisions contained in international criminal law conventions.  The provision, however, cannot represent an obstacle to the application of the rules governing immunity.  He went on to say that the provision of draft article 10 must be interpreted in light of the jurisprudence of the International Court of Justice, in particular its judgement of 20 July 2012 [Obligation to Prosecute or Extradite (Belgium v. Senegal)].  Turning to article 7, paragraph 2, he said that prosecution does not depend on a prior extradition request, but is automatically imposed on a State where the arrest is carried out.  To this end, he suggested replacing the expression “aut dedere aut judicare” by “judicare aut dedere” or “judicare vel dedere”.

JOSE JUAN HERNANDEZ CHAVEZ (Chile) said that draft article 6 is an appropriate summary of the measures States must apply to ensure appropriate punishment for various forms of participation in crimes against humanity.  While welcoming the International Law Commission’s simplified drafting of paragraph 3 of that draft article, he said that future negotiations should revise such provision to make clear that, in the case of subordinates who have committed crimes, the superior is also responsible if they did not take necessary, reasonable measures in their power to punish perpetrators.  He also said that a convention based on the draft articles should expressly state — for the purposes of complying with the requirement to establish appropriate punishment for crimes against humanity — that States must not impose the death penalty for such crimes.  Future discussions should consider whether the inclusion of the phrase “as appropriate” is fitting in paragraph 3 of draft article 9, and whether this wording gives excessive discretion to a State that has carried out an investigation.  He suggested that the draft article instead refer to a general rule as a prerequisite, and then add one or more exceptions — such as to protect the identity of witnesses or safeguard an ongoing investigation.

YONG-ERN NATHANIEL KHNG (Singapore) said he agreed with the clarification that paragraph 5 of draft article 6 has no effect on the procedural immunity that a foreign State official may enjoy before national criminal jurisdiction, which continues to be governed by conventional and customary international law.  Turning to draft article 7, he observed that multiple States may have jurisdiction over an offence, citing the need to clarify how potential conflicts should be resolved; the draft article should accord primacy to the State that can exercise jurisdiction under paragraph 1 — as opposed to a custodial State exercising jurisdiction under paragraph 2 alone.  He further supported inclusion of a provision for States claiming jurisdiction to coordinate their actions appropriately, and to elaborate in commentary relevant factors that should be considered in resolving such conflicts.  Recalling his delegation’s position on capital punishment as voiced in the Interactive Forum format, he noted that the European Convention on Human Rights does not constitute international law that is binding on all States, and certainly does not reflect any customary international law prohibition on the death penalty.

Ms. CROCKETT (Canada) said similar language to the “without prejudice” clause in draft article 2 should be added to draft article 6, so as not to limit the possibility for States to either include additional acts that may constitute offences under their national laws, or to define the crimes in accordance with specific elements of criminal responsibility under their domestic laws.  She also proposed broadening the scope of the responsibility of commanders and superiors in draft article 6, paragraph 3 to include the criminal responsibility of persons that may effectively be acting as superiors or commanders.  Noting the inclusion of the liability of legal persons pursuant to paragraph 8 of that draft article, as well as the flexibility granted to States, she wondered if this paragraph should be separated into its own article, as the concept of liability extends beyond that of criminalization.  The human rights of detainees reference could be more apparent in draft article 9, she said, suggesting including a reference to a person’s right to liberty and security in draft article 11.  Draft article 9 seems more appropriate for an inquisitorial system of criminal justice than what it is typically in place in common law systems.  She, therefore, suggested that this provision be reframed to note the obligations of States when conducting a preliminary inquiry more simply.

EVGENY A. SKACHKOV (Russian Federation), voicing support for the proposal to limit draft article 6 to a general obligation, said the inappropriate detailing only creates a problem for national practitioners.  Moreover, the provisions on the possible criminal liability of legal persons in current form could constitute a barrier to the accession of States.  Pointing to a vague wording of the article, he said it could complicate its application, stressing that the draft article should address only factual knowledge.  More so, the draft article should not prejudice norms relating to the immunity of officials from foreign criminal jurisdictions.  The approach of draft article 7, paragraph 3 is preconditioned for confusion and the possibility of a legal conflict, including interference in internal affairs.  To this end, he suggested simplifying the article and reflecting that the establishment of jurisdiction over crimes committed outside of the territory of a State should not lead to the violation sovereignty of other States.  On the use of “aut dedere aut judicare” in article 9, he proposed deleting the reference to competent international criminal courts or tribunals.

PETER MOHAN MAITHRI PIERIS (Sri Lanka) said that draft article 9 is a salutary provision that aims to deny suspected criminals a haven.  On draft article 10, he underscored that “we must give local jurisdictions a chance to work”.  This article seeks to address a situation in which there are reasonable grounds to believe that a crime against humanity has been committed and an investigation has commenced to determine this.  In this context, “reasonable suspicion” would mean “sufficient evidence”; to fix the threshold differently would violate established jurisprudence.  However, a State “does not need to wait for a watertight case to bloom”, he noted.  Crimes against humanity have repeated throughout history and continue to occur in the present.  How countries that are in positions of power should or should not respond to these crimes is controversial.  Some say States should do what is best for them, which, sometimes, is choosing not to do anything at all, while others advocate for intervention — even militaristically — on the basis that such crimes should not be tolerated.  Still others believe that a joint effort by the international community should mediate this endeavour.  The Committee’s present effort “is surely a step in the right direction” to reduce human suffering in a basic way, “which is the most we can hope for”, he said.

The floor then opened up to the Interactive Forum format.

The representative of Egypt aligned his delegation with the comments made by the delegate of Singapore on capital punishment.

The meeting then resumed to formal interventions.

KEMAL ONUR EKREN (Türkiye) said the criteria governing responsibility of military commanders and superiors in draft article 6 are ambiguous and need clarification.  The statement in paragraph 31 of the commentary to draft article 6 should be incorporated into the draft article itself to ensure that it is interpreted in accordance with well-established principles of international law.  As well, the clause regarding the principle of non-retroactivity must be included in the draft articles; this approach would also be compatible with the applicable rules of international law on treaties.  Paragraph 8 of draft article 6, which provides that States should take measures to establish criminal, civil or administrative liability of legal persons for the persons referred to in the current draft article, does not reflect existing customary international law.  As there is neither sufficient State practice nor established rules of customary international law to this effect, this provision should be excluded.  Noting that crimes against humanity have a highly political nature, he cautioned against the risk of its exploitation for political reasons.  This risk is especially embedded in draft article 7, he said, stressing that it is in the interest of justice that territorial or national jurisdiction be given primacy.

The floor then opened up to the Interactive Forum format.

The representative of the European Union, in its capacity as observer, noting that she was not imposing any views on delegations, said the death penalty should not be considered an appropriate penalty under draft article 6.  Recalling that 144 countries have abolished the death penalty, she emphasized that all delegations have the right to express views by any matter covered by the draft articles.  “It was the cooperative tone of our debate so far and we hope we can continue on this note,” she added.

The meeting then resumed to formal interventions.

VICTOR SILVEIRA BRAOIOS (Brazil) said that, while the International Law Commission’s attempt to allow Member States policy space is “laudable”, paragraph 3 of draft article 6 would benefit from a more detailed approach.  The wording “had reason to know” in that provision may be too vague a term for a criminal provision, he said, suggesting terms similar to those in the relevant provision of the Rome Statute — which specifies that the “reason to know” is verified in light of the circumstances of the time.  Otherwise, there is a theoretical risk that strict liability would be applied, which would not be in line with international jurisprudence.  He also noted that he understands that nothing in the draft articles shall be interpreted as affecting the immunities of State officials from foreign criminal jurisdiction.  Therefore, he urged complementing draft article 6 with a provision in this regard.  Turning to draft article 10, he noted that the obligation is to prosecute the alleged offender, and that the alternative is to extradite or surrender the accused.  Therefore, the text must be read in conjunction with other draft articles relating to national jurisdiction and extradition.  On this point, he said that a future convention would benefit from additional safeguards to prevent the abuse of the universality principle.

The floor then opened up to the Interactive Forum format.

The representative of Singapore, responding to the representative of the European Union, expressed appreciation for her clarification that her delegation was not seeking to impose any views on others, as any delegation is entitled to express itself on matters covered by the draft articles.  However, he noted that some speakers seemed to be shifting the debate towards the merits of the death penalty, which should not be the case.  While some countries may have abolished the death penalty in form or practice, a majority of Member States have reaffirmed the sovereign right to that measure.

The meeting then resumed its formal interventions.

LEMLEM FISEHA MINALE (Ethiopia) said existing human rights, humanitarian laws and other treaties, as well as domestic criminal laws, avail the necessary legal basis for prosecution of crimes against humanity.  To the extent legal gaps are observed, they can be addressed by national legislations and institutional mechanisms. Noting that such crimes are susceptible to political subjectivity, she highlighted the importance of legislative balancing.  “The reference to the international criminal court or its constitutive statute that is not accepted by more than one third of the UN membership also complicates our discussion and undermines consensus,” she said, noting that her country is not a party to the Rome Statute.  Any international tribunal established must be ad hoc and designated for specific cases, based on the consent of the State concerned, she stressed, also reiterating her country’s reservations about the International Criminal Court's violation of sovereignty of States.  Noting that selective approaches undermine sovereign equality and peaceful resolution of security challenges, she added that discussions on this draft must be centred around national laws and judicial processes.  She also expressed concern about the definition of culpability to crime against humanity which draft article 6 limits to military officials and pointed out that crimes against humanity can take place outside conflict situations.

AMADOU JAITEH (Gambia) said that draft article 6 provides for each State to take measures ensuring that crimes against humanity constitute an offence under its national laws.  Draft article 7 provides for States to establish national jurisdiction over crimes against humanity committed within its territory or by its nationals.  As such, draft articles 6 and 7 are essential for the investigations and prosecutions of such crimes by States.  Draft articles 8 and 9 provide for the investigations of those crimes and the preliminary measures to be taken when an alleged offender is present in a State.  The obligation outlined in the draft articles is in line with international law.  He also welcomed draft article 10, which provides that the State, where a person who has alleged to have committed crimes against humanity is staying or living, shall either extradite or prosecute the alleged offender.  The fight against all violations of human rights should not have a safe sanctuary to hide from prosecutions, he stressed.

LIGIA LORENA FLORES SOTO (El Salvador), referring to draft article 6, paragraph 3, said her delegation does not see the reference to command authority, which arises when an individual with command authority uses another individual as an instrument.  The very structure of that command authority necessarily presupposes the involvement of at least two people, she pointed out, adding that the drafting could have been clearer in defining that type of situation.  That form of authority supposes that one is acting through another, and it is a modality which is independent from the others because it does not presuppose direct commission, but, rather, the commission of a crime through another who is being used as an instrument.  Turning to draft article 7 on the establishment of national jurisdiction, particularly paragraph 2, she underlined that this type of jurisdiction, without territorial or individual ties, seems to refer to the principle of universal jurisdiction.  However, language must be improved to ensure differentiation from the principle of extradite or prosecute, she said.

LIU YANG (China), emphasizing that draft article 6 is one of the core provisions, encouraged States to build consensus.  Establishing a definition and reaching consensus on it are prerequisites for national criminal legislation to stipulate on the crime, he said, urging States to avoid using a one-size-fits-all approach for penalization.  Underlining States’ legislative sovereignty in article 6, paragraphs 2 to 8, he said countries should make their own decisions conforming to their legal systems.  Draft paragraph 5 has no effect on procedural immunity of Government officials, he said, suggesting including the International Law Commission’s commentary in the paragraph.  Whether legal persons should become subjects of crimes against humanity and what kind of liability they bear should be decided by States, he added.  In draft article 7, the establishment of jurisdiction should be based on clear linages, whereas broad jurisdiction may lead to the application of universal jurisdiction.  To this end, the provision “aut dedere aut judicare” in draft article 10 should not be interpreted as recognizing or permitting exercise of universal jurisdiction.  More so, cooperation between States and international tribunals should not be included in the clause.

LOUREEN SAYEJ, observer for the State of Palestine, called for the inclusion of incitement in draft article 6, paragraph 2, adding:  “We have enough history to recognize the role of incitement in the physical realization of the message.  Those who incite should not go unpunished.”  On draft article 6, paragraph 4, she said there are no grounds for excluding criminal responsibility, as it is incompatible with the prevention or punishment of crimes against humanity.  Turning to jurisdiction, she said that a State has similar obligations to investigate crimes against humanity when such acts are committed by its organs, armed forces and private personnel, wherever they may be acting, including on a foreign territory.  While welcoming the Commission’s language on “prompt, thorough and impartial investigation” and the general duty and the threshold of “reasonable ground to believe”, she said it was not enough; investigations into crimes against humanity have to be legitimate, available, effective and sufficient.  In this context, she said that concerns had been raised about the impartiality and lack of independence of military courts, stressing that sham investigations carried out in bad faith only shield the perpetrators.  On draft article 8, she said that “acts” is more appropriate than “act”.

Thematic Cluster 4:  Draft articles 13, 14, 15 and Annex

Ms. POPAN, representative of the European Union, in its capacity as observer, observed that extradition is a useful legal tool in the fight against impunity and that draft article 13 is an important element of inter-State cooperation in the punishment of crimes against humanity.  She pointed out that a State requested to extradite, before refusing to do so, must consult with the requesting State to provide the latter with the opportunity to present its opinions and provide relevant information.  Such consultations are useful, allowing a requesting State to clarify its request, and if necessary, to modify it to address the requested State’s concerns.  She also welcomed draft article 13’s clarification that all offenses listed in the draft articles are extraditable and that there is no exception for “political offenses”.  Further, underscoring that no one should be prosecuted or punished on account of gender, race, religion, nationality, ethnic origin, culture, membership in a particular social group or political opinion, she stressed that requests for extradition should not be used as a tool for such purposes.

She also voiced her support for draft article 14 — relating to mutual legal assistance — as inter-State cooperation is key for the investigation and prosecution of crimes against humanity.  Noting that draft article 14 and the annex apply only where there is no mutual-legal-assistance treaty in place, she recalled the “MLA Initiative” that is supported by 77 States from all over the world — including all European Union member States.  The Initiative aims to enhance inter-State cooperation to facilitate the prosecution of international crimes before national courts, and formal negotiations for a convention based thereon will occur in Ljubljana from 15 to 26 May.  “We see the two Initiatives as not being antithetical,” she said.  Turning to draft article 15, which governs the settlement of disputes, she noted that it does neither provides a time limit for concluding negotiations nor contemplates monitoring or enforcement mechanisms.  She expressed support for this built-in flexibility that allows States to develop this provision further.

Mr. THORVARDARSON (Iceland), speaking also for Denmark, Finland, Norway and Sweden, noted that, to close the impunity gap, States must be able to prosecute at the national level — requiring a clear treaty definition, but also a joint understanding of and clear provisions on inter-State cooperation.  Otherwise, States run the risk of unintentionally becoming safe havens for those who commit core international crimes.  The draft articles are a strong addition to international law, as well as contributing to the implementation of the principle of complementarity as prescribed by the Rome Statute.  Draft articles 13, 14 and 15, read together with the annex, strike the right balance, building on widely adhered-to treaty provisions previously accepted by States, with a structure incentivizing States to strengthen national legislation to end impunity, and also providing a clear overview on international cooperation.

While international law currently lacks a special regime for State-to-State cooperation concerning international crimes, he spotlighted the Mutual Legal Assistance and Extradition Initiative as a very positive development.  He further welcomed the diplomatic conference in Slovenia next month to negotiate a multilateral treaty for inter-State cooperation mechanisms towards the investigation and prosecution of the most serious international crimes.  He also voiced support for draft article 13, paragraph 3, which provides that an offence covered by the draft articles shall not be regarded as a political offence, and accordingly, a request for extradition based on such an offence may not be refused on these grounds alone.  However, on paragraph 11, the Commission’s commentary points out that this paragraph may, strictly speaking, not be necessary for an extradition occurring solely pursuant to the present draft articles.  Draft article 15 on the settlement of disputes strikes a careful balance, which should lay a good foundation for universal membership of what eventually would become a new international agreement on crimes against humanity, he noted.

Mr. HASENAU (Germany), aligning himself with the European Union, said that draft articles 13 and 14 and the Annex promote cooperation among States with regard to crimes against humanity, adding that the text before the Committee is largely based on existing treaties.  Draft article 13 on extradition sets out in detail the rules governing the extradition regarding individuals accused of crimes against humanity, while draft article 14 promotes the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings for crimes against humanity.  The additional annex is meant to cover requests, which are not already subject to a mutual legal assistance treaty, thereby addressing a legal gap that might exist in regard to the prevention and punishment of crimes against humanity, he said, among other things.  On draft article 15, constituting the draft convention’s enforcement mechanism, which is standard language, he noted that, while details will be the subject of further negotiations, a clause giving compulsory jurisdiction to the International Court of Justice would be the strongest path for promoting accountability for crimes against humanity.

Mr. RUFFER (Czech Republic) said that draft articles 13 and 14 on extradition and mutual legal assistance provide an excellent basis for further negotiations.  He also welcomed that draft article 13 is not overly prescriptive, provides sufficient legal clarity and outlines the grounds for refusing in general terms.  Whatever the reason for refusing extradition, the obligation to submit the case to its own competent authorities for prosecution under draft article 10 remains applicable, he stressed, adding that the requested State should be able to take into account all criteria relevant in the concrete situation of multiple requests for extradition.  With regard to draft article 14, he said it provides sufficient legal framework for mutual legal assistance.  The annex would be a useful guidance for international cooperation concerning crimes against humanity.  Draft article 15 — providing for immediate resort to the International Court of Justice if the negotiations between States fail, unless States agree to submit the matter to arbitration — reflects the seriousness of the crimes against humanity, he said, adding that States should be able to opt out from this settlement of disputes mechanism, as suggested in the draft.

Ms. SOLANO RAMIREZ (Colombia), noting that her country is signatory to many international treaties and agreements, said that draft article 13 contains positive steps forward regarding extradition, which are not to be found in applicable conventional laws concerning crimes against humanity.  The content of this article is applicable and compatible with the practice of States.  Describing that article as a significant tool for international cooperation, she said it will meet the need to carry out justice in the absence of institutional diplomatic processes or bilateral or multilateral extradition treaties.  Further, the contents of this draft article are compatible with a number of existing documents, she said, including the Rome Statute and the Convention on Torture.  Highlighting paragraph 5 of article 13, she said it is necessary to address the confusing practice in the area of extradition when there are a number of treaties which can be applied.  Turning to draft article 15, she said the mechanism in that draft is standard and well-thought-out.

Mr. TOMBS (United Kingdom) said his delegation would support an amendment to draft article 13 to more closely reflect the Convention against Corruption, by including a reference to “domestic law provisions” in draft articles 13, paragraphs 2 and 3.  He noted that the list of impermissible grounds in draft article 13, paragraph 11 has been expanded to reflect the list of factors found in draft article 2, paragraph 1(h) and appears to be wider than those found in the treaties upon which those draft articles are based.  Thus, he questioned whether this broader scope is necessary given that the commentary is clear that there is no obligation on the requested State to extradite if it is believed that the request is being pursued on grounds that are impermissible under international law.  Turning to draft article 14 on mutual legal assistance provisions, he underscored that survivors must be at the heart of the evidence gathering process to avoid the need for multiple testimonies and thereby reducing the risk of re-traumatization.  Regarding the annex, he said he would prefer a slightly more detailed language in paragraph 14 on the use of information by the requesting State.

Mr. GHORBANPOUR NAJAFABADI (Iran) noted that draft articles 13 and 14, on extradition and mutual legal assistance, are “strikingly similar” to the texts of the Convention against Corruption and United Nations Convention against Transnational Organized Crime.  While reiterating Iran’s previously expressed position on those Conventions as the source for the present text, he expressed the view that the prospective instrument should follow the pattern of drafting of the Convention on the Prevention and Punishment of the Crime of Genocide, in that arrangements in those draft articles should be left to sovereign States.  He voiced his strong opposition to draft article 14, paragraph 9, which his delegation could not support in any way, “since it acknowledges mechanisms that were neither adopted by consensus nor were legitimate and legal, as they were established based on political agendas by bodies that lacked the authority and competence to do so or will be established with a similar practice”.  Turning to draft article 15, he voiced support for its current formulation, particularly paragraph 3, which serves as a safeguard for the International Court of Justice’s non-compulsory jurisdiction.

Mr. BRAOIOS (Brazil), pointing out that the text is consistent with other international treaties, said that extradition and mutual legal assistance should be subject to the requested State’s national law.  Draft article 13, paragraph 11 preserves the right of the requested State not to extradite when there are grounds to believe that the accused may be punished on account of gender, race, religion, among other aspects.  To this end, the draft article could benefit from an additional paragraph, he said, stating that no provision in a future convention could be interpreted as imposing an obligation to extradite when a person is to appear before an extraordinary court or when they may face the death penalty.

Mr. KOWALSKI (Portugal), aligning himself with the European Union, observed that draft article 13 is a logical consequence of the principle of aut dedere aut judicare, which is enshrined in draft article 10.  Extradition is an important tool to ensure accountability when a State does not prosecute an alleged offender found in its territory.  Thus, he welcomed paragraph 4 of draft article 13.  That provision holds that the draft articles may be considered a legal basis on which to extradite in relation to crimes against humanity, which is particularly important for States that require an extradition treaty to be in place in order to carry out an extradition.  Among other comments, he expressed disapproval of paragraph 3 of draft article 15, which allows States to opt-out of the International Court of Justice’s jurisdiction or arbitration as a means to settle disputes.  Given the particular nature of crimes against humanity, he said that, while the International Law Commission chose to follow the Convention against Corruption in this regard, the draft articles should instead follow the example of the Convention on the Prevention and Punishment of the Crime of Genocide — which does not provide any such opt-out clause.

Mr. KLANDUCH (Slovakia), aligning himself with the European Union, noted that, under draft article 10, a State can satisfy its obligation arising out of the principle aut dedere aut judicare by extraditing or surrendering the alleged offender to another State or a competent international court or tribunal.  Draft article 13 is herein useful, facilitating such extradition, clearly setting out applicable rights, obligations and procedures.  By contrast, he highlighted that draft article 14 regulates situations where the State undertakes to prosecute crimes against humanity instead of extradition and seeks assistance from another State in one of the envisaged forms.  As with draft article 13, he welcomed that the source of inspiration for draft article 14 was the Convention against Corruption with some acceptable modifications.  On draft article 15, he said that Slovakia supports the International Court of Justice’s jurisdiction in disputes concerning the interpretation or application of draft articles as envisaged in paragraph 2.  However, as there is no specific duration of negotiations prescribed in order for a State to submit the dispute to the Court, he called for that paragraph to feature the language of the Convention on Genocide, providing for an immediate resort to the Court.

Mr. MILANO (Italy), aligning himself with the European Union, welcomed the fact that draft article 13 is modelled on article 44 of the Convention against Corruption, as well as on article 16 of the Convention on Transnational Organized Crime.  Those two agreements have received almost universal ratification, he noted, adding that they have proved to be effective tools for inter-State cooperation in extradition.  Expressing support for the exclusion of the political offense exception as a ground for refusing an extradition request, he also welcomed the specification in paragraph 7 that “Extradition shall be subject to the conditions provided for by the national law of the requested State or by applicable extradition treaties, including the grounds upon which the requested State may refuse extradition.”  That enhances legal certainty which is one of the central conditions for effective additional cooperation.  Turning to draft article 14 on mutual legal assistance, he expressed support for inserting the non-prejudice clause, adding that it will serve legal certainty.  However, he noted, the commentary to that draft article may be confusing and pointed to the need for more precise language to be considered for a future treaty.

Mr. RAOUL (Cameroon), while welcoming the spirit of draft article 13 on extradition, said it could include respect for international law, in terms of the conclusion of bilateral or regional agreements.  Therefore, for greater clarity, he suggested that paragraphs 1 and 2 could be joined.  He voiced his opposition to paragraph 4, which holds that the extradition be conditional on the existence of a treaty.  He expressed support for paragraph 8, which calls on the requesting and requested States to respect domestic law in extradition proceedings, and paragraphs 10, 12 and 13, on the enforcement of sentences.  The content of paragraph 11, on the refusal of extradition, contradicts paragraph 3, which is prescriptive and removes the State’s ability to assess the extradition request.  He also welcomed the settlement of disputes dealt with in draft article 15 in the event of a failure of negotiation.  However, the referral to the International Court of Justice mentioned in paragraph 2 should not be automatic, but subject to the acceptance of the Court’s jurisdiction by subscribing to the optional compulsory jurisdiction clause.  Citing the words of African sages, he said:  “If we want to walk quickly, we should walk on our own; if we want to go far, we must go together.”

Mr. KANU (Sierra Leone), spotlighting draft article 13, said that, although frequently occurring in political contexts, extradition for core international crimes such as genocide, crimes against humanity and war crimes are not to be regarded as “political offences” for the purposes of denying extradition.  The detailed provisions on mutual legal assistance, enshrined in draft article 14, are fundamental to the future convention.  Recalling the process implementing the Convention against Corruption — which serves as an inspiration for this draft article — he expressed satisfaction with the approach taken.  However, the dispute-settlement clause of draft article 15 may be “unworkable” for a convention on crimes against humanity.  Noting that article 15 contemplates a system of opting in and out that may be appropriate for conventions that are truly reciprocal in nature, he said States might not invest the political and other capital to initiate disputes against other States.  Moreover, article 15 should establish a compulsory jurisdiction of the International Court of Justice, he said, offering an alternative text based on the dispute settlement clause contained in article IX of the Genocide Convention text.  States should include a monitoring mechanism and monitoring body for crimes against humanity, he added.

Ms. HUTCHISON (Australia) said that, in relation to draft article 13 on extradition, the primary responsibility for investigating and prosecuting serious international crimes rests with the State in whose territory the alleged criminal conduct occurred, or the State of nationality of the accused.  States with territorial jurisdiction are often best placed to achieve justice, given their access to evidence, witnesses and victims.  Moreover, States with nationality jurisdiction have significant interests in securing accountability with respect to their nationals.  Therefore, paragraph 12 of the draft article would benefit from requiring States to give due consideration, not only to an extradition request from the State in the territory under whose jurisdiction the alleged offence occurred, but also from the State of nationality of the accused.  Turning to draft article 14 and the annex on mutual legal assistance, she commended the present level of specificity in situations where no mutual legal assistance treaty exists between the requesting and requested States.  She further underlined that draft article 15 should limit the ability for States to make a declaration under paragraph 3 only upon ratification or accession.  However, a key issue is missing from the draft articles, that being capacity development, she asserted.

Ms. LUNGU (Romania), aligning herself with the European Union, observed that draft articles 13 and 14 draw inspiration from the Convention against Transnational Organized Crime and the Convention against Corruption.  As both instruments enjoy wide ratification, drawing from them is advantageous because a significant number of States are already familiar with these detailed and technical procedures.  Turning to draft article 15, she said her delegation generally supports the inclusion of clauses in new bilateral and multilateral treaties that confer jurisdiction on the International Court of Justice to deal with disputes between States parties.  On that point, she observed that the argument could be made that, by introducing an opt-out to such a clause, some States may be willing to sign treaties that they otherwise would not — thereby increasing their substantive obligations, and in turn, strengthening the international legal framework.  However, she said that this fails to account for the important role the Court plays in the legal order created by such obligations.  The Court is essential for ensuring the application of treaties, and without it, “substantive obligations would be reduced to empty words”, she stressed.  For this and other reasons, she urged those present to be cautious when analysing the opt-out clause in the draft article 15.

Ms. MARUBAYASHI (Japan) suggested clarifying that covered offenses are only applicable to those that are provided for in national laws on the implementation of the Convention against Corruption in paragraph 2 of draft article 13.  On paragraph 3, she pointed out that there is no provision in the Convention against Transnational Organized Crime which would not uniformly deem a covered offense as a political offense.  Since the provision in paragraph 9 does not exist in either of those conventions, that paragraph as a whole must be discussed carefully with attention to specific envisaged situations.  She then noted that the relationship to the International Criminal Court on extradition could benefit from the addition of the phrase “except in the case of extradition to the [International Criminal Court]”.  She also proposed adding “without prejudice to domestic law” before “State” in paragraph 1 of draft article 14 and to annex paragraph 16.  The phrase “where appropriate” after “wherever possible and consistent with fundamental principles of national law” should be added to annex paragraph 16 so as to allow for flexibility according to each country’s circumstances.

BRAIN KELLY (United States), noting that history has shown that crimes against humanity rarely respect international borders, said that draft articles 13 and 14 play an important role in the overall structure of the draft articles.  Closely following the provisions of widely ratified instruments — such as the United Nations Convention against Corruption and the United Nations Convention against Transnational Organized Crime — on extradition and mutual legal assistance would be beneficial, he stressed.  On draft article 15, he recognized the important role that the International Court of Justice can play in settling disputes concerning the interpretation or application of any future convention in paragraph 2.  He also welcomed the inclusion of a process by which States could declare that they do not consider themselves bound by that paragraph.  Conventions under which States may make reservations to or otherwise opt out of the Court’s jurisdiction — such as the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment — are more likely to be widely ratified by States, he pointed out.

Ms. JIMENEZ ALEGNA (Mexico) noted that, for the purposes of extradition, as proposed in draft article 13, paragraph 8, States can establish their jurisdiction over crimes against humanity, not only those committed in their territory, but also when there is a nationality link with the alleged perpetrator or victims.  This serves as a tool for the international community to combat inaction or unwillingness to prosecute those who may have committed the conduct covered by the treaties.  As draft article 14 and its annex serve as a solid legal basis for mutual legal assistance between States, she called for establishing the terms, obligations and powers of States on cooperation as clearly as possible.  Citing the importance of draft article 15 for a possible international treaty, she expressed support for a mechanism that grants the International Court of Justice the jurisdiction to consider possible conflicts between States regarding the interpretation and application of their obligations under the articles.  However, as such mechanisms must be obligatory, she suggested deleting paragraphs 3 and 4, as previously stated by the delegations of Sierra Leone and Romania.

Mr. AL-THANI (Qatar) said that extradition is governed by legal and constitutional arrangements set out in national legislation and bilateral cooperation agreements.  On draft article 13 addressing extradition, he highlighted a principle enshrined in the constitutions of a number of States including his:  that States shall not extradite their own nationals.  The provisions of article 13 should not in any way be interpreted as an obligation on a State to extradite its nationals.  Turning to article 15, he noted that paragraphs 1 and 2 provide for the settlements of disputes by negotiation, arbitration and resorting to the International Court of Justice.  This needs to be clarified since paragraph 3 states that each State may declare that it does not consider itself bound by paragraph 2.  Further, it is important to examine issues related to applicable national legislation, especially on extradition when crimes are committed outside the national boundaries of States.

Mr. PERILLEUX (Belgium), associating himself with the European Union, spotlighted draft article 13, which offers a solid basis for extradition requests.  It is useful for States such as Belgium, which make extradition conditional on the existence of treaty with the requesting State, he said, adding that a “clear, detailed extradition procedure is essential in the fight against impunity”.  Turning to mutual legal assistance, in draft article 14 and its annex, he emphasized the value of the proposal contained in paragraph 2 of the annex to designate a central authority with the responsibility and power to receive requests for mutual legal assistance.  Belgium’s International Humanitarian Law Unit of its Federal Public Service Justice has demonstrated the practical value of such an authority to facilitate cooperation.  He outlined the Mutual Legal Initiative launched by his country, Netherlands, Argentina and Mongolia, to fight impunity for the most serious crimes, adding that the group is holding a conference in May in Ljubjana to work towards the adoption of a convention.  On draft article 15, he proposed the inclusion of an arbitration clause similar to article 9 of the Convention on the Prevention and Punishment of the Crime of Genocide, which does not allow the jurisdiction of the International Court of Justice to be declined.

Mr. HERNANDEZ CHAVEZ (Chile), noting that draft article 13 is designed to facilitate and establish uniform rules for extradition, said it does not establish an obligation to extradite.  He welcomed the new paragraphs, including paragraph 12, that would facilitate extradition of alleged offenders to the States where crimes were committed.  During future negotiations of a new convention, draft article 13 will be applicable solely to States parties to this treaty.  To this end, the text of paragraph 1 would need to be clarified.  Turning to draft article 15, he underlined the importance of establishing dispute-settlement mechanisms to resolve disputes peacefully, including by resorting to the International Court of Justice.  More so, different models of dispute-settlement, enshrined in other universal treaties, could be considered in future negotiations.  In addition, the text in paragraph 3 could provide guarantees to States; it should be considered carefully.

Ms. CROCKETT (Canada) said that, with regard to requests by States to make extradition conditional on the existence of a treaty — pursuant to draft article 13, paragraph 5 — it would be relevant to add that such request should be made at the time of deposit of instruments of ratification, similar to the reference contained in the Convention against Transnational Organized Crime.  Also noting with appreciation for the encouragement to expedite procedures under paragraph 8, she said that differences may arise in the treatment of these cases by States.  She recommended further review of the language used in the paragraph.  Regarding draft article 13, paragraph 11, she suggested that it should not imply that only grounds recognized as universally impermissible under international law can lead to a refusal of extradition.  Underlining the importance of draft articles 13 and 14, she said that the scope of draft article 14, paragraph 3(h) could be clarified with respect to potential “other proceedings”.  Some interlinkages within the article itself could also be reviewed and refined, such as the use of “investigations, prosecutions, judicial and other the proceedings” and “investigations, prosecutions and judicial proceedings” in paragraphs 1, 2 and 6.

Mr. SKACHKOV (Russian Federation), commenting on draft articles 13 and 14, said that it is not justified to use the provisions of existing regimes in the areas of corruption and organized crime.  These crimes have a different legal nature, and therefore, imply a different approach.  Draft article 14 “cannot solve all the problems that arise” in the investigation and prosecution of crimes against humanity; however, its high level of detail may negatively impact participation in a potential convention.  Further, paragraph 9 of that draft article is “unacceptable”, because of the existence of illegitimate structures established in violation of international law and the Charter of the United Nations.  “Everyone is well-aware of the politicized nature of the activities of such bodies,” he stressed.  Turning to draft article 15, he said that it is balanced in its current state, also underscoring the need to retain paragraph 3 of that draft article.  Its deletion could negatively affect the mechanism to settle disputes, he added.

Mr. PIERIS (Sri Lanka), while commending the effort behind draft articles 13, 14 and 15, sounded a note of caution regarding the text on extradition in its present form.  Citing General Assembly resolution A/RES/3074 on extradition, he affirmed that the threshold criteria of reasonable suspicion of sufficient evidence must be satisfied to trigger jurisdiction — as had been mentioned by the Russian Federation’s delegate in the morning session.  Such suspicion cannot be arbitrary or politically grounded.  “That would be anathema to the rule of law,” he stressed, adding that the liberty of any human being is sacrosanct and cannot be used as a tool of the powerful to move human beings like pawns on the chessboard of global politics.  Draft article 13 must be given more than careful consideration, he stated.  Spotlighting sub-article 8, he stressed that justice cannot be sacrificed on the altar of expediency.  “If we do not defend the worst of them, we cannot defend the best,” he emphasized.  Draft article 14 is a sweeping provision, he said, while conceding that the underlying principles laid out are worthy of consideration.  On draft article 15, he stressed that the importance of mutual respect for the concept of sovereignty must be respected.

Mr. MAINERO (Argentina) highlighted his country’s national experience in investigating and prosecuting crimes against humanity and its extensive judicial practice in this area.  Proposing numerous elements to be included in draft articles 13 and 14, as well as the annex, he said improving their language will ensure more effective international cooperation.  On draft article 13, he said, in his country, there are no legal obstacles for proceeding to extradition when judicial authorities request extradition of an individual to another State for crimes which are considered crimes against humanity.  Highlighting the possibility of double prosecution for criminal proceedings, as well as noting that, in some cases, the individual might be a dual national, he said it is essential to have legal tools to find procedural solutions to potential obstacles.  Also expressing support for the inclusion of a reference to channels of transmission for extradition requests, he said normally the diplomatic channels are used.  However, in the annex, the Commission has referred to the central authorities being the channel.  Perhaps this is to ensure harmony between draft articles 13 and 14, but, in order to do so, draft article 13 should include a reference to central authorities, as well, he said.

Ms. CHANG (Republic of Korea), elaborating on draft articles 13 and 14, said that it is essential that each State criminalizes crimes against humanity under their national law.  However, inter-State cooperation by extradition and mutual legal assistance is also required to ensure that crimes against humanity are effectively punished.  Draft article 13 does not provide grounds for refusal of extradition in detail, she stressed, noting that States should refine their domestic law to fully reflect the purpose of draft articles.  For example, granting amnesty to offenders who committed crimes against humanity may serve as an obstacle in carrying out a request for extradition, although the International Law Commission commented that an amnesty by one State would not hinder prosecution by another State over that offence.  Draft article 14 does not threaten the judicial independence of Member States, she observed, adding that the inter-State cooperation framework will contribute to preventing crimes against humanity by raising the possibility of punishing perpetrators effectively and by isolating them diplomatically.

Mr. LIU (China) voiced approval for draft article 13 in general; it is an effective tool for inter-State cooperation and is necessary in the fight against impunity.  However, it should fully reflect the customary practice of States.  On paragraph 11, on the grounds for refusal of extradition, some elements did not reflect international consensus.  He proposed that “cultural” and “membership of a social group” be deleted from the list.  He voiced concern about paragraph 9 of draft article 14, which is about the mandate of the United Nations or other international organizations to gather evidence for a crime, calling for the paragraph to be further explored as it is difficult to accept in its current form.  On draft article 15, he voiced support for the “balanced arrangement” set out in paragraphs 1, 2 and 3 on article 15, noting that his country supports the right of parties to pursue their own means of dispute-settlement.

Ms. SAYEJ, observer for the State of Palestine, reaffirmed her consistent position and long-standing adherence to all political, legal and diplomatic means for the dispute settlement.  Welcoming the inclusion of draft article 15, she commended the work of the International Court of Justice and outlined its centrality in the peaceful settlement of disputes.  To this end, she suggested enhancing the Court’s role in enforcing and promoting international law, including in prevention and punishment of crimes against humanity.

The floor then opened up to the Interactive Forum format.

The representative of Singapore voiced his disagreement with the suggestion that draft article 13 could benefit from an additional paragraph relating to extradition when the alleged offender may face the death penalty, as the conventions on which that draft article was based did not have such a provision.  He added that the delegation proposing such suggestion made a reservation to article 2 of the second Optional Protocol to the International Covenant on Civil and Political Rights to allow for the exercise of the death penalty for certain crimes in times of war.  The Constitution of that delegation’s country also retains the use of the death penalty in certain cases in times of war, all pointing to the fact that consensus does not exist on prohibiting the use of the death penalty.

The representative of Cameroon expressed solidarity with the delegate of Saudi Arabia on the death penalty.  Noting that Sri Lanka’s representative invoked a General Assembly resolution that obligates extradition, he asked if it is part of regular practice.  He further called on the delegate of Canada for her opinion on States’ ratification of bilateral extradition treaties.  Welcoming the comments made by the representatives of Mexico and Sierra Leone, he asked if, when suggesting deleting the competence of the International Court of Justice, that they are suggesting States are obligated to come to an agreement when negotiating, or if it is acceptable to end up with none.

The representative of Senegal, noting that his country co-sponsored the resolution on crimes against humanity, emphasized:  “This means must be well-established and should not include notions that can be interpreted in various ways.”  The Commission should clarify the expression pertaining to a social group listed in article 13 and in paragraph 19 of the annex.

The representative of Nigeria asked for clarity on what is meant by “political offenses” in paragraph 3 of draft article 13.  Issues in the domain of national jurisdiction should be handled by the involved State, she pointed out.