Codifying Draft Articles on Crimes against Humanity into International Convention Entirely in Hands of Member States, Senior Legal Officer Tells Sixth Committee
Recommendations by the International Law Commission are not binding and accepting them is “entirely in the hands of Member States”, a United Nations senior principal legal officer told the Sixth Committee (Legal) today during its resumed session, as he briefed delegates on the Commission’s procedure with the General Assembly and its process in drafting the articles on prevention and punishment of crimes against humanity.
Arnold Pronto, Principal Legal Officer, Codification Division of the Office of Legal Affairs, noted that, while all subsidiary bodies make recommendations to the parent body, the Commission’s work on a particular text is technically not complete without a recommendation for action. Against that backdrop, the Commission commenced work in 2014 on the topic of prevention and punishment of crimes against humanity. After completing and adopting a set of draft articles, the Commission recommended to the General Assembly that an international convention, based on those draft articles, be elaborated by the General Assembly or by an international conference of plenipotentiaries.
The question now before the General Assembly, and particularly the Sixth Committee, is whether or not to accept the recommendation of the International Law Commission, he continued, adding that the Commission also recommended that the future convention be negotiated on the basis of those draft texts. Moreso, because the Commission’s recommendations are not binding on States, he emphasized that the question of whether or not to accept a recommendation of the Commission remains “entirely in the hands of the Member States”.
Delegations also took up the fifth and last thematic cluster of draft articles, with a number of delegates debating on the principle of non-refoulement as contained in draft article 5.
The representative of Mexico noted that the principle has a solid basis in existing law and can be found in a number of treaties on specific crimes that enjoy broad support from the international community, including the International Convention for the Protection of All Persons from Enforced Disappearance — which has 173 States parties — along with the Convention Relating to the Status of Refugees, and the Cartagena Declaration on Refugees.
Egypt’s delegate, while agreeing with the principle that “no State may expel, return, surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity”, as per paragraph 1, said he could not support the approach employed in paragraph 2 for determining whether such grounds exist or not. While similar provisions are provided for in the Convention against Torture it is particularly unbefitting for a potential convention on crimes against humanity.
Sounding an oppositional note, Iran’s delegate said that the way in which draft article 5 has been written will pave the way for arbitrary interpretation by States refusing to grant extradition requests. Further, non-refoulement is a principle applicable in international human rights law, and the draft makes an unsuccessful attempt to extend this principle to crimes against humanity.
Echoing that sentiment, China’s representative questioned whether the non-refoulement reference should apply to crimes against humanity, as there is a lack of widespread State practice or international consensus on the issue. It may be misused by States as a pretext to reject requests by other States to return or extradite offenders, undermining the fight against impunity. Further deliberation is therefore warranted, he said.
The representative of Cameroon, speaking in the Interactive Forum format, asked what the fate of refugees would be when non-refoulement is not recognized. He also questioned what the legal basis for reparation would be if a trial does not clearly indicate who the guilty parties are. There needed to be consistency between the provisions in the draft articles and the Vienna Convention on the Law of Treaties, he stressed.
Taking up reparations under draft article 12, Sierra Leone’s delegate underscored: “We know serious political opposition to reparations for colonialism and slavery remains among the countries that benefited the most from both.” Spotlighting the intertemporal principle, he noted numerous States have appealed to the non-retroactive application of international law to deny that they have a legal obligation to provide reparations. However, racial discrimination rooted in colonialism and slavery that occurred after each had been outlawed cannot be subject to the intertemporal bar.
Argentina’s representative, also spotlighting draft article 12, said a definition of “victim” is needed to avoid fragmentation or a misunderstanding of the concept. This would serve as minimum basis for the treatment of victims in various national legislations. Also missing is the recognition of the right of the victim to know the truth about the circumstances in which the crime took place.
However, the representative of Malta, speaking in the Interactive Forum format, reminded delegates that the United Nations system does contain a definition of the notion of victim in paragraph 8 of General Assembly resolution A/RES/60/147. According to that paragraph, victims are persons who individually or collectively suffered harm, including physical, mental or emotional injury, she said.
Further to that issue, the observer for the State of Palestine noted that the Commission expressed a clear goal to have a more comprehensive concept of reparation — including for material and moral damages — and welcomed the inclusion of “collective basis”. As entire peoples can be victims, she stressed that their collective right to reparations and redress must be enshrined.
Taking up draft article 11, Colombia’s delegate underlined that it lists the guarantees for a fair trial, rights of the accused in the context of a judicial investigation and the guarantee to communicate and to receive representatives from the State or States of which the individual is a national. Nonetheless, more safeguards should be included both in judicial proceedings and during investigation.
The representative of the United Kingdom noted that the language in that draft article’s paragraph 2(a), which provides that a State can exercise a consular function over a stateless person, appears to be novel in international law. Nonetheless, it is not clear how this process would work in practice, he commented.
However, the Russian Federation’s delegate emphasized that draft article 11 must refer to national legislation, adding that it does not indicate the consequences of not ensuring or failing to ensure fair treatment. In addition, although the article does stipulate the right to communicate with the State of origin, it does not indicate the timeframe within which that right must be realized.
Also speaking during the Cluster 5 debate were the representatives of Finland (also for Denmark, Iceland, Norway and Sweden), Germany, Czech Republic, Jordan, Netherlands, Brazil, Portugal, Italy, Australia, Romania, Japan, United States, Poland, Chile, Singapore, Canada, Sri Lanka, Türkiye, Belgium, Mozambique, France, India, New Zealand, Slovakia and Nigeria, as well as a representative of the European Union.
The representative of Israel also spoke on Cluster 4.
The Sixth Committee will next meet at 3 p.m. on Friday, 14 April, to conclude its resumed session.
Thematic Cluster 4: Draft Articles 13, 14, 15 and Annex
NOAM CAPPON (Israel), noting that the topics of mutual legal assistance and extradition have a vast practice in international law, warned States against attempting to “reinvent the wheel”. It is of utmost importance that the balance created between States is respected and upheld, he stressed. He, however, noted that the phrasing of draft article 13, paragraph 3 reads out like a cancellation of this practice and presents a possible loophole allowing for a circumvention of a due process of extradition procedures, and thereby, erodes the gravity of the term. To this end, further deliberations are required before any decision can be made. He also reiterated the value of safeguards to ensure that draft articles are not abused and remain an effective tool for punishment and prevention of crimes against humanity.
Thematic Cluster 5: Draft Articles 5, 11 and 12
SIMONA POPAN, representative of the European Union, in its capacity as observer, noted that draft article 5 on non-refoulement prohibits States from expelling, returning, surrendering or extraditing a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity. That prohibition is explicitly included in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 2006 International Convention for the Protection of All Persons from Enforced Disappearance; and the 1949 fourth Geneva Convention. The principle is also embodied in the Charter of Fundamental Rights of the European Union, which states that “[n]o one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”.
On draft article 11, she recalled that the right of suspects and of accused persons to a fair trial is laid down as a general principle in the Charter of Fundamental Rights, guaranteeing that anyone suspected or accused in criminal proceedings is innocent until proven guilty. A number of delegations had suggested that draft article 11 be strengthened to make a more precise distinction between the rights of suspects and the rights of accused. Turning to draft article 12, she emphasized that it is crucial to empower victims to report crimes, participate in criminal proceedings, claim compensation and ultimately recover — as much as possible — from the consequences of such crimes. Welcoming the reference that measures are to be taken “in accordance with national law” (paragraph 2) — leaving flexibility for States to decide how best to implement their obligations and provide broader rights — she called for the scope of the draft to be more ambitious, including a separate provision on the rights of the child.
VIRPI LAUKANNEN (Finland), speaking also for Denmark, Iceland, Norway and Sweden, said that the principle of non-refoulement, contained in draft article 5, is a central safeguard under international human rights and refugee law, along with customary international law. This principle is neither new nor specific to the draft articles. It has been included in a number of international instruments, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention Relating to the Status of Refugees. Stressing the importance of this principle, she said that draft article 5 is without prejudice to other obligations of non-refoulement arising from other international instruments. She also welcomed the broad scope of draft article 11, which covers all stages, from investigation to imprisonment. Due-process considerations are important — especially in the context of criminal law — and the right to a fair trial is a key element of human-rights protection and a procedural means to safeguard the rule of law.
Turning to draft article 12, she underscored that victims are at the heart of international criminal justice today as, since the 1980s, the international community has paid closer attention to the role of victims and witnesses in criminal proceedings. Existing international instruments and General Assembly resolutions also provide guidance on victims’ rights to justice and reparations. Stressing that the victims of the most serious international crimes — like crimes against humanity — have a right to reparation, she welcomed in paragraph 3 the comprehensive, non-exhaustive listing of forms of reparation. She added that other auxiliary rights of victims — such as the right to truth — can be important for the reconciliation process and for transitional justice.
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt) agreed that “no State may expel, return, surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity” as per draft article 5, paragraph 1. However, he said he could not agree with the approach employed in draft article 5, paragraph 2 for determining whether such grounds exist or not. The subparagraph referred to “all relevant considerations”, including the “existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law”. While similar provisions are provided for in the 1984 Convention against Torture and the International Convention for the Protection of All Persons from Enforced Disappearance as per the commentaries, it is particularly unbefitting for a potential convention on crimes against humanity. On the one hand, such a provision conflates an international atrocious crime with less serious violations. On the other hand, it opens the door for politicization and attempts to impose the exercise of jurisdiction by some States where the alleged offender might be merely present at the expense of States having a genuine nexus with the alleged crime.
MICHAEL HASENAU (Germany), associating himself with the European Union, said draft article 5 establishes a fundamental prohibition of sending offenders to States where they are at risk. In addition, draft article 11 provides for fair treatment and due process rights, in particular the right to a fair trial and consular access. Noting that draft article 12 contains far-reaching standards on the rights of witnesses and victims in criminal proceedings, he said the detail of such provisions, the depth of regulation in a future convention and the role of horizontal national legislation should be subject to negotiations.
EMIL RUFFER (Czech Republic), aligning himself with the European Union, observed that the principle of non-refoulement in draft article 5 is already incorporated in the Geneva Conventions, is part of the interpretation of human rights treaties and is included in extradition and other criminal law treaties. Nevertheless, it is important to reiterate and emphasize the prohibition of sending persons to a country where they might be at risk. Similarly, draft article 11 reflects and refers to relevant rights and guarantees in universal and regional human rights instruments, and in principle, aptly summarizes the norms protecting the alleged offender for purposes of prosecuting crimes against humanity. Welcoming the inclusion of draft article 12 in the future convention, he observed that one article devoted both to the issue of participation and the issue of reparations seems to be prima facie sufficient. He further noted that certain questions might arise concerning the differentiation between the duty of a State to provide reparation and the offender’s duty to do so, as well as questions concerning the scope of such obligation in case of a State exercising its jurisdiction on the basis of passive personal or universal jurisdiction.
AUGUSTINA SIMAN (Malta) noted that the principle of non-refoulement is included in several international instruments. Observing that the principle — as an inherent element of prohibitions against torture and other forms of ill treatment — is characterized by its absolute nature, she expressed support for draft article 5 in this regard. She also said that reparations have been widely recognized by a “rich network of instruments” at the global and regional levels, which confirms that draft article 12 fits into the architecture of global legal efforts to ensure justice for victims of such cruel, inhuman and degrading treatment. When choosing between different forms of reparation, States should adopt a victim-oriented approach — placing victims and their individual needs at the centre of redress proceedings. On this point, she urged States to consider establishing minimum criteria that limits their discretion to decide what forms such reparation should take, such as allowing victims to participate in the process of determining reparations. This would help to ensure that reparations are adequate and take into account the needs of specific victims, she added.
LUCIA TERESA SOLANO RAMIREZ (Colombia) said draft article 5 lacks clarity in terms of its relationship with draft article 13, paragraph 11. This is clear if one looks at the lengthy explanation provided in the commentary, she said, emphasizing that it would be better to seek clarity in the drafting of the text than to provide an interpretation. Draft article 11 lists the guarantees for fair treatment, including a fair trial, the protection of rights which must be guaranteed to the accused in the context of a judicial investigation and the guarantee to communicate and to receive representatives from the State or States of which the individual is a national. Nonetheless, more guarantees or safeguards should be included both in the judicial proceedings, as well as during investigation. At the very least, the article could make a general reference that these guarantees are the minimum and that customary law or the obligations of States under other instruments or arrangements under regional or national law may require more safeguards. Turning to draft article 12, she said the rights of victims of crimes against humanity must be protected in a possible future treaty.
ALAA AL-EDWAN (Jordan) said draft article 15 does not reflect customary international law. The article is proposed as lex ferenda and puts significant burden on the State on whose territory the person is present. To this end, he proposed deleting or redrafting this draft article to ensure that a return of an individual to a part of the territory of a State, where he or she would not be in danger of being subjected to crimes against humanity, is not considered unlawful. This applies to situations when not all parts of a State constitute a danger, including in cases of non-international armed conflict. Thus, a State should not be prevented from returning an individual to those parts, where such danger does not exist, he stressed.
JONATHAN HOLLIS (United Kingdom) underlined the importance in draft article 11, paragraph 2 of ensuring that the provisions in respect of the State of nationality are consistent with the provisions in article 36 of the Vienna Convention on Consular Relations. He further noted that the language in paragraph 2(a), which provides that a State can exercise a consular function over a stateless person, appears to be novel in international law; it is not clear how this process would work in practice. On draft article 12, he stressed that the absence of a crimes against humanity framework fails to give the victims and survivors of such crimes the recognition and redress they deserve. His delegation has previously supported the decision of the Commission to avoid defining the term “victim” given the need to reflect the differing approaches at national levels. However, he is aware that some States, experts and organizations see benefits in including such a definition and that some have called for it to be broadened to include those who have witnessed traumatic crimes against humanity, or have endured indirect harms years later, such as children born of sexual violence.
MOHAMMAD GHORBANPOUR NAJAFABADI (Iran) said that the way in which draft article 5 has been written will pave the way for arbitrary interpretation by States refusing to grant extradition requests. Further, non-refoulement is a principle applicable in international human rights law, and draft article 5 makes an unsuccessful attempt to extend this principle to crimes against humanity. He questioned how a court without access to evidence can refuse to grant extradition based on suspicion of subjecting a person to crimes against humanity — a crime with specific characteristics, committed over time. Similar language does not exist in the Convention on the Prevention and Punishment of the Crime of Genocide. Further, the principle is outside the scope of draft articles focusing on the prevention and punishment of crimes against humanity. He said his delegation, therefore, does not see any added value in incorporating draft article 5. Turning to draft article 11, he suggested adding the Vienna Convention on Consular Relations to paragraph 3 as another source to which the implementation of the draft articles should conform. On draft article 12, he said that only jurisdictions where a crime occurs have competence to consider requests for reparation.
MATTHIJS BOERMA (Netherlands), associating himself with the European Union, welcomed draft article 5 as it represents an essential protection under international law. Regarding draft article 11, he said his country attaches great importance to fair trial and due process, as is stipulated in the European Convention of Human Rights and different United Nations human rights treaties. He underlined his support for strong language on this matter. Regarding draft article 12, he noted that there is a general development in both national and international criminal law aimed at strengthening the legal position of victims of serious crimes. Noting the important work of civil society, he said Amnesty International has included a number of amendments to the draft articles in its 17-point programme that would ensure that victim’s rights are fully recognized.
PEDRO MUNIZ PINTO SLOBODA (Brazil), pointing to a broader scope of the principle of non-refoulement, said many human-rights-monitoring bodies have interpreted their respective instruments to establish an absolute prohibition of expulsion or return based on the risk of "irreparable harm". To this end, draft article 5 should not only include risks of a person being subjected to a crime against humanity, but also of genocide, war crimes and torture. He also suggested draft article 11 be strengthened and brought closer to the fair trial guarantees, including those provided in the Rome Statute. Some of the guarantees in Rome Statute article 55, on the rights of persons during an investigation, and in article 67, on the rights of the accused are not present in the draft articles, he observed. Recognizing that draft article 11, paragraph 1 establishes the right to a fair treatment, he called for more precision and proposed to resort to the text of the Rome Statute on the matter.
SERGIO AMARAL ALVES DE CARVALHO (Portugal), aligning himself with the European Union, welcomed the principle of non-refoulement in draft article 5 — even though it is not new or specific to the draft articles on crimes against humanity. Addressing Egypt’s delegate, he said there should be time to reflect on his concerns about too much vagueness in the provision. On draft article 11, he noted that the expression “fair treatment at all stages of the proceedings” is intended to incorporate all the guarantees generally recognized under international law to a detained or accused person. Draft article 12 of particular relevance, as ensuring the protection of the rights of victims, witnesses and other persons affected by the commission of these crimes is not only consistent with international law, but instrumental in empowering victims to speak up, report crimes and participate in criminal proceedings. While expressing support for the principle in paragraph 3, according to which victims have the right to obtain reparation for damages — including both material and moral damages — he nonetheless called for a stand‑alone article dealing specifically with that issue.
ENRICO MILANO (Italy), aligning himself with the European Union, expressed support for the inclusion of draft article 5, noting that the application of the principle of non-refoulement in this area reflects general principles of international human rights law. He also underlined the importance of draft article 11, which expressly recognizes the accused’s right to fair treatment and a fair trial in accordance with constitutional guarantees and international human rights standards. Regardless of the gravity of the offense, States must fully respect such rights. Turning to draft article 12, he welcomed its contemplation of the rights of victims of crimes against humanity, in accordance with international human rights treaties and the statutes of international criminal courts and tribunals, including that of the International Criminal Court. Such rights include participation in criminal proceedings in accordance with the national law of the State exercising criminal jurisdiction, he added, also expressing support for the way in which paragraph 3 was drafted to encompass different types of reparation that can be provided under national legislation, including compensation, restitution, satisfaction and rehabilitation.
The floor then opened up to the Interactive Forum format.
The representative of Cameroon, noting the different opinions on non-refoulement, asked what the fate of refugees would be when non-refoulement is not recognized. He voiced agreement with the United Kingdom’s call for consistency between the provisions in the draft articles and the Vienna Convention on the Law of Treaties. Noting that he “agreed less” with that representative regarding the right to reparation not needing to depend on the outcomes of trial, he asked what the legal basis for reparation would be if a trial does not clearly indicate who the guilty parties are.
The meeting then resumed to formal interventions.
ZACHARIE SERGE RAOUL NYANID (Cameroon), noting that the principle of non-refoulement comes from a refugee law, said its application seems questionable and subjective. It may open the way to abuses and legal insecurity, as it requires the requested State to appreciate and evaluate what is happening in a foreign country. Noting that the provision is “misplaced”, he said it would be hard for a small, requested State to justify the existence of human rights violations in larger requesting States, as suggested in paragraph 2. Outlining the right to refuse extradition in judicial cooperation as legitimate and credible, he said it requires a proper justification based on unequivocal mechanisms. Questioning draft article 11, paragraph 3, he noted that, in some legislations, implementation of the provisions is subject to strict regimes that may limit the meaning of the content. He also recognized the vagueness of some notions in the provision, warning that the spirit of paragraph 1 could be flouted if the definitions are not properly structured. Voicing support for article 12, paragraph 3, he said it does not concern prison sentences, but, rather, forms of cooperation, including restitution, compensation, cessation and guarantees of non-repetition, among others.
ALEXANDRA HUTCHISON (Australia) noted that, in terms of the specific threshold that would give rise to the non-refoulement obligation in draft article 5, her delegation views that, for there to be “substantial grounds” for a person to be in danger of being subjected to the relevant conduct, there must be a personal, present, foreseeable and real risk to that person. Draft article 5 could potentially provide greater clarity around this standard. That draft article strikes the right balance without being too prescriptive, in relation to the wide array of rights to which a suspect or defendant before a national court is entitled under international law. Expressing support for draft article 12, she suggested that paragraph 1 could benefit from clarification that this obligation would apply with respect to alleged crimes against humanity occurring “within the territory under that State’s jurisdiction”. As foreshadowed during Cluster 1, her delegation is also considering how the draft articles could strengthen the integration of gender equality and First Nations perspectives, she said.
ALIS LUNGU (Romania), aligning herself with the European Union, expressed support for the inclusion of a non-refoulement provision in draft article 5, also noting that such a principle is incorporated in a number of human rights and humanitarian treaties. She welcomed draft article 11 — “one of equal importance” — which underlines the necessity of providing an alleged offender with the necessary protection during relevant proceedings. Ensuring a fair trial, fair treatment and due-process rights is essential for establishing the legitimacy of national courts’ efforts to end impunity, she said, adding that the fairness of criminal proceedings is expressly provided for in Romanian law. In addition, she stressed the importance of the rights to be heard during criminal proceedings and to obtain reparation for material and moral damages — in the forms indicated in paragraph 3 of draft article 12 — also stating that her delegation is open to additional suggestions that would strengthen this provision.
Ms. MARUBAYASHI (Japan) said it is necessary to carefully deepen the discussion on how exactly the determination of the substantive grounds on which crimes against humanity may occur is supposed to be made in determining the application of the non-refoulement principle in draft article 5. Regarding paragraph 1(b) of draft article 12, she proposed that language such as "where appropriate" be added, as it is not clear as to the scope of actions envisioned as protecting victims.
BRIAN KELLY (United States), noting that some States have faced challenges in implementing their non-refoulement obligations, said draft article 5, in contrast to article 33 of the Convention Relating to the Status of Refugees, provides for no exceptions. To this end, he suggested this obligation and the scope of the draft article be further considered by States in connection with any future convention on the prevention and punishment of crimes against humanity. Noting that draft article 11 reflects an important principle — recognized by the International Military Tribunal at Nuremberg and reflected in other international instruments — he said it could further specify which rights under applicable national or international law, including international human rights law and international humanitarian law, are included. The focus that draft article 12 places on the rights of victims, their relatives and representatives is an important step for providing justice and accountability, he observed. He also suggested further discussing the concept of the “right to obtain reparations” and welcomed the views of other States.
KATARZYNA MARIA PADLO-PEKALA (Poland), aligning herself with the European Union, welcomed draft article 12 on victims and witnesses, but noted their protection could be further strengthened by adding a direct referral to States’ obligation towards victims. At the same time, the draft could be even more ambitious by including a separate provision with particular attention to the most vulnerable category of victims, children. She stressed that the best interests of children must be a primary consideration in the process of their physical and psychological recovery and social reintegration. She also noted that her delegation advocates that the language of the draft articles should not depart from the agreed language of the widely ratified human rights instruments. She did not view the exclusion of a definition of “gender” from article 2 of the draft as a positive change, as the definition agreed upon and codified in the Rome Statute should be retained in the draft articles, adding to the terminological consistency and coherence in international law.
JUAN GÓMEZ ROBLEDO VERDUZCO (Mexico) said that the principle of non-refoulement contained in draft article 5 — a valuable addition — has a solid basis in existing law, as it can be found in a number of treaties on specific crimes that enjoy broad support from the international community. These include the Convention against Torture — which has 173 States parties — along with the Convention Relating to the Status of Refugees, and from the Latin America region, the Cartagena Declaration on Refugees. On draft article 11, he stressed that the human rights of the accused must be fully respected — regardless of the severity of the alleged crime — and therefore, paragraph 1 must be interpreted broadly to cover all stages of proceedings. He then turned to draft article 12, which contains obligations key to the success of any future convention on crimes against humanity. Underscoring the need to recognize victims’ rights, he said that the list contained in paragraph 3 is not an exhaustive one — as other forms of reparation will depend on the nature of a given case. He also highlighted the importance of mental health to an individual’s rehabilitation, which applies to both victims and family members impacted by crimes against humanity.
The floor then opened up to the Interactive Forum format.
The representative of Cameroon reported that his capital informed him of their concern that there are interpreters making impolite remarks about certain countries. This interpreter is judging the attitude of a country that is here to contribute to the development of international law. “We are not here for jokes,” he stressed, asking why such remarks were made only against an African, while other delegations also deliver interventions without receiving similar remarks. The incident should be the subject of a detailed explanation by that interpreter, he stressed.
The meeting then resumed to formal interventions.
JOSE JUAN HERNANDEZ CHAVEZ (Chile), welcoming the deletion of the reference to “territory under jurisdiction of another State” from draft article 5, paragraph 1, said the meaning of the provision is not to keep an individual from being sent to a specific physical location, but rather ban the surrender of an individual to another State when there are grounds to believe that an individual is a subject of crimes against humanity. He voiced support for adding a reference to international humanitarian law in paragraph 2, while emphasizing that this legal regime should be applicable only in the context of armed conflict. To this end, he suggested including the expression “as appropriate” to this provision. He also said the text of draft article 12 could be further improved. Welcoming the inclusion of paragraph 3, he observed that it clarifies which States are required to provide reparations and encouraged the Commission to consider this issue in more detail.
YONG-ERN NATHANIEL KHNG (Singapore) welcomed the succinct provision in draft article 11 that an alleged offender of crimes against humanity is entitled to fair treatment, as in other international conventions. He said he agreed with the Special Rapporteur that it is not necessary to replicate a wide array of rights before a national court, also observing that, under paragraph 1, a State must accord the legal protections that an accused is entitled to under national and international law. On draft article 12, he noted his delegation does not believe it is necessary to include a reference to moral damages in paragraph 1, as the scope of damages should be left to each State in each case. He further welcomed the explanation in paragraph 22 that reparation may be through the use of regular civil claims processes in national courts, indicating that the obligation in paragraph 3 may be fulfilled through those courts, which should be included in the draft article.
Ms. BOURDON (Canada) suggested considering whether draft article 5 could be improved based on language used in the Convention Relating to the Status of Refugees. She also suggested that the title of this draft article be revised, as non-refoulement is usually understood to be limited to refugees and asylum-seekers. Further, she noted that the draft article uses the terms “surrender” and “extradite”; the former refers to surrendering a person to a court or international tribunal, while the latter refers to delivering a person to a State. Given that the draft article is limited to non-refoulement to a State, she said that the use of the term “surrender” should be re-examined. Turning to draft article 11, she said that it should be enriched to include protection against arbitrary detention or arrest, and that paragraph 2 should clearly mention that this draft article does not modify international humanitarian law. On draft article 12, she urged clarification that the scope of measures a State should take is limited to the scope of its jurisdiction, and that paragraph 2 be expanded to include both victims and their families.
EVGENY A. SKACHKOV (Russian Federation) said the provision on non-refoulement is not an element in international criminal law, but rather stems from human rights law. Thus, his delegation does not see any grounds to include this draft article. Noting problems with the wording, he said “substantial grounds to believe” leaves broad discretion to the State when it comes to issues of extradition. This could lead to abuse and the politicization of extradition and the provision of legal assistance. Draft article 11 must refer to national legislation, he said, adding that it does not indicate the consequences of not ensuring or failing to ensure fair treatment. In addition, although the article does stipulate the right to communicate with the State of origin, it does not indicate the time frame within which that right must be realized. Draft article 12 has no added value, he said, noting that its language is fairly vague and opens the door to different interpretations. For example, the phrase “shall be protected against ill treatment or intimidation” could give rise to disagreements over what forms of protective measures are appropriate. On the whole, these matters should be resolved in national legislation, he said.
PETER MOHAN MAITHRI PIERIS (Sri Lanka), noting that the principle of non-refoulment often finds accommodation in extradition treaties, recognized its value in draft articles 11 and 13. Drawing attention to the protection of victims and witnesses, he underscored the importance of reparations for material and moral damage in a post-crime scenario. Detailing a number of legal instruments on extradition and mutual legal assistance, he recalled a series of procedures addressing the issue of accountability in different parts of the world. Turning to General Assembly resolution 3074(XXVIII) on the principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, he said it requires States to cooperate on bilateral and multilateral basis to prevent such crimes. “We must ensure that the resolution is effective,” he stressed, adding that reparations and guarantees of non-repetition should be considered human rights. Individuals who have individually or collectively suffered harm, including physical or mental injury, economic loss or substantial impairment of their fundamental rights as a result of war crimes or crimes against humanity, should be compensated by a facilitated access to justice and fair treatment, including restitution, compensation and reparations, he said.
KEMAL ONUR EKREN (Türkiye) noted that the existing wording on compensation in draft article 12, paragraph 3 should indicate that such obligations could be satisfied by the availability in States’ national law of civil claims processes.
Ms. GRANDJEAN (Belgium), aligning herself with the European Union, said that the principle of non-refoulement, contained in draft article 5, is essential to protecting human rights and is present in many widely ratified conventions, including the Convention against Torture and the International Convention for the Protection of All Persons from Enforced Disappearance. This principle has also been affirmed by various international and regional bodies and transposed by many States — including Belgium — into national legislation. She also said that the safeguards in draft article 11 must be ensured at every stage of proceedings, noting that the right of detained persons to communicate with their State of nationality is present in the Vienna Convention on Consular Relations. Turning to draft article 12, she underscored the need to adopt a victim-centred approach. Such individuals must not only enjoy the right to make complaints, but to have their opinions and concerns taken into account at every appropriate stage of proceedings, she added.
MARTÍN JUAN MAINERO (Argentina) voiced support for the inclusion of draft article 12 as it is vital for the rights of victims and witnesses to be safeguarded in an instrument on crimes against humanity. However, other elements could also be added to strengthen that draft article. A definition of “victim” is needed to avoid fragmentation or a misunderstanding of the concept. This would serve as minimum basis for the treatment of victims in various national legislations. Also missing is the recognition of the right of the victim to know the truth about the circumstances in which the crime took place. Turning to the issue of witnesses, he noted that, in some cases, a person received abroad and required to provide evidence or testimony in person does not have travel documents, such as in the case of stateless persons or refugees in camp or asylum. It would be important to ensure cooperation by the State where that person is residing, so that that the individual called upon to provide testimony can receive appropriate travel documentation. Further, it would be beneficial for the article to require the cooperation of third States where witnesses are to travel.
PAULA DA CONCEIÇÃO MACHATINE HONWANA (Mozambique), voicing support for draft articles 11 and 12, said her country has enacted specific legislation to protect victims and witnesses. Moreso, it updated its penal code to include provisions that prevent and punish crimes against humanity, as well as genocide, torture and war crimes in general. Noting that draft article 5 might pose difficulties in interpretation of the expression “consistent pattern”, she suggested adding the phrase “according to international standards” at the end of the sentence. She also said an alternative text could be provided to specify this concept, taking into consideration different specificities and contexts of the future convention’s application.
The floor then opened up to the Interactive Forum format.
The representative of Malta noted that the United Nations system contains a definition of the notion of victim in paragraph 8 of General Assembly resolution A/RES/60/147, which was adopted by consensus in 2005. According to that paragraph, victims are persons who individually or collectively suffered harm, including physical, mental or emotional injury.
The representative of France, aligning herself with the European Union, noted that her country has consistently underlined the high quality of the International Law Commission’s draft articles and supported the adoption of a convention based on the same. Noting that the wording of draft article 5 is in line with international conventions, she said that, while her delegation is not opposed to improving its wording if necessary, it must be included in a future convention on the prevention and punishment of crimes against humanity. The fact that such language is not present in certain other conventions — such as the Convention on the Prevention and Punishment of the Crime of Genocide — should not be an obstacle to strengthening prevention in this case, she said.
The representative of India said that the use of the word “shall” in paragraph 1 of draft article 5, on the one hand, makes it obligatory for a State not to expel returned persons intruding on its territory. On the other hand, by incorporating the word "believing” in the same paragraph, a window for non-compliance is left open by affording discretionary powers to the same State. In addition, this draft article has the effect of overriding existing bilateral treaties between States concerned regarding extradition and mutual legal assistance.
The meeting then resumed to formal interventions.
ZOE RUSSELL (New Zealand), voicing support for the inclusion of the safeguards in articles 5, 11, and 12, encouraged views from other States on possible changes to the draft articles. She welcomed the obligation to protect and consider the rights of victims of crimes against humanity and recognized its significance in prevention and punishment of these crimes. Highlighting the flexibility incorporated into draft article 12, paragraph 3 that enables States to have discretion to determine the appropriate form of reparation, she noted that various scenarios may arise in the aftermath of the commission of crimes against humanity, which may require reparations to be tailored to specific circumstances.
XI YANG (China) questioned whether the reference in draft article 5 to non-refoulement should apply to crimes against humanity, as there is a lack of widespread State practice or international consensus on the issue. If that reference is to be applied to crimes against humanity, it may be misused by States as a pretext to reject requests by other States to return or extradite offenders, undermining the fight against impunity. Further deliberation is therefore warranted. While voicing general support for draft article 12, he noted that, on some modalities and scope, consideration should be given to differences in national conditions and legal systems, and States should be given some discretion — for example, regarding paragraph 3, the criminal laws of some States do not provide for reparations for moral damages, an issue best left to each State.
LOUREEN O. A. SAYEJ, observer for the State of Palestine, said that the draft articles, as a whole, should reflect applicable standards and best practices concerning victims’ rights. Such individuals’ right to reparations must be consistent with international law and normative standards ensuring accessibility for all victims to both procedural and substantive aspects of complaints or reparations. Turning to draft article 12, she said her delegation looks forward to further discussing subparagraph 1(b) to ensure wider protection for victims and those cooperating with them. Noting that the International Law Commission expressed a clear goal to have a more comprehensive concept of reparation — including for material and moral damages — she welcomed the inclusion of “collective basis”. Entire peoples can be victims to crimes against humanity, she noted, stressing that their collective right to reparations and redress must be enshrined.
MICHAEL IMRAN KANU (Sierra Leone), citing draft article 12, noted that, over the course of a decade of brutal war, nearly two thirds of Sierra Leone’s 5 million people were displaced from their homes, with many losing their lives, limbs and all their property. His delegation had therefore asked the Commission to deliberate further on whether the obligation in paragraph 3 might impose too ambitious a burden on a conflict-torn State party to a convention containing this article. Noting it will be a missed opportunity to discuss reparation without addressing slavery and the transatlantic slave trade, he stressed: “We know serious political opposition to reparations for colonialism and slavery remains among the countries that benefited the most from both.” He spotlighted the intertemporal principle which states that a State is responsible for violations of international law only if, at the time of the violation or its continuing effects, the State was bound by the legal provisions it transgressed. Numerous States have appealed to the non-retroactive application of international law to deny that they have a legal obligation to provide reparations. However, States that had hitherto stressed the intertemporal principle as a barrier to international responsibility regarding genocide and reparations, with suggestions of their obligations to be “historical” and “moral”, are addressing reparation owing to political consideration. He affirmed that racial discrimination rooted in colonialism and slavery that occurred after each had been outlawed cannot be subject to the intertemporal bar.
The floor then opened up to the Interactive Forum format.
The representative of Cameroon welcomed the statement by Sierra Leone’s delegate, which pertained to the criminalization of slavery and the matter of reparations for the same. He underscored that it would be “tragic” for Africa to forget this historical fact, which traumatized a continent still struggling to recover. He also recalled the 12 April statement by the representative of Ethiopia, who pointed out that sexual slavery is just one form of slavery. He urged those present “to envisage slavery as trafficking”, spotlighting the people still affected from this wound — which remains open even today.
Briefing on International Law Commission
ARNOLD PRONTO, Principal Legal Officer, Codification Division of the Office of Legal Affairs, briefing the Committee on the International Law Commission’s recommendation regarding the draft articles on prevention and punishment of crimes against humanity, said the Commission is granted the authority to make recommendations by its Statute, which was adopted by the General Assembly in 1947 and which established the Commission as a subsidiary body to assist it. In the context of both progressive development and codification, the Statute envisages the Commission concluding its work with the preparation of a final draft text which is to be transmitted to the General Assembly together with “a recommendation”.
While all subsidiary bodies make recommendations to the parent body, authority is expressly granted to the Commission by its Statute, he continued, pointing out that the Commission’s work on a particular text is technically not complete without a recommendation for action. Given its substantive nature, the Commission’s work is typically subject to annual comment and review by States. The formal submission of the text, with commentaries and recommendation, to the General Assembly marks the end of the Commission’s work and inaugurates a new phase of work for the Sixth Committee. Noting that the Sixth Committee’s task is procedural, he said the Committee has, on occasion, chosen to consider matters of substance as part of its decision-making process towards taking action on a recommendation made by the Commission. “Indeed, this is precisely the function of the two resumed sessions that have been scheduled for this particular agenda item,” he underscored.
Although the Commission’s recommendations are not binding on States, they are an integral part of the machinery that has been established to operationalize the outcome envisaged in Article 13(1)(a) of the Charter of the United Nations, he noted. It serves as a key procedural step in the progressive development and codification of international law. Each recommendation is debated extensively in the Commission, which routinely considers the comments made by States as to the final form of the text. The Commission typically adopts its recommendations by consensus, reflecting the collective view of all its 34 members. “Nonetheless […] the question of whether or not to accept a recommendation of the Commission remains entirely in the hands of the Member States,” he emphasized.
Turning to the recommendation of the Commission regarding crimes against humanity, he recalled that the Commission commenced its work on the topic in 2014. The intention since was the preparation of a set of draft articles intended to serve as the basis for an international convention. Detailing subsequent events, he said that, upon adopting the draft articles, the Commission at its seventy-first session in 2019 “decided, in conformity with article 23 of its statute, to recommend the draft articles […] to the General Assembly. In particular, the Commission recommended the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles.”
The question now before the General Assembly, and particularly the Sixth Committee, is whether or not to accept the recommendation of the International Law Commission, he said, adding that, if so, which procedure to follow: either the elaboration of a convention by the General Assembly or the elaboration by an international conference of plenipotentiaries. The Commission also recommended that the future convention be negotiated on the basis of draft articles. While there have been exceptions, it has been the traditional practice for the text developed by the Commission to serve as the base text for a subsequent treaty negotiation. The Commission’s recommendation must also be considered in light of its general practice on recommendations, as well as that of the General Assembly and the Sixth Committee, in connection with recommendations made by the Commission in the past.
Providing an overview of such practice, he said the Commission has concluded its consideration of 47 items, including phases of items, on its programme of work. Of the 44 recommendations adopted by the Commission in its 74‑year history, the Commission proposed the conclusion of an international convention, either immediately or as a possible future action, on 27 occasions. Of those, 14 recommendations were followed and resulted in the adoption of 17 treaties, he said, naming those various conventions. The Sixth Committee is presently considering such a recommendation for the adoption, or possible future adoption, of a further eight international conventions, he said, citing the relevant draft articles concerned. Any decision to pursue the recommendation of the Commission should be expressly and clearly reflected in a resolution adopted by the General Assembly, he emphasized, noting that such decision would ideally be preceded by a reflection on the various procedural options and consequences, both practical and financial, of pursuing the outcome in question.
He referred interested delegations to the report the Secretariat will prepare for the eightieth session of the General Assembly, in fulfilment of operative paragraph 6 of General Assembly resolution 77/97 on the responsibility of States for internationally wrongful acts, “on all procedural options based on precedents regarding action taken on other products of the International Law Commission”. That report will cover some of the specifics, were the Assembly to pursue the recommendation by the Commission that an international convention be concluded in that context, which would likely apply in the present context as well, he said.
The floor then opened for questions and comments.
The representative of Mexico, expressing his agreement with Mr. Pronto, commended the level of ongoing scrutiny by the International Law Commission and the General Assembly. Pointing to the rigorousness of the process and the constant scrutiny by the General Assembly, he detailed his experience as a special rapporteur between the first and second readings. The work of the rapporteur is to bear in mind the commentaries of the States, he said, pointing of the importance of the second reading, when the comments and observations made by the Assembly are also taken into account. To this end, he also underscored the importance of improving dialogue between the Commission and the Sixth Committee.
The representative of Portugal echoed Mexico’s delegate, further emphasizing that the resumed session was very useful, allowing for in-depth discussion on positions, but also addressing the practical issue that during International Law Week, delegates have their hands full. It is therefore easier to hold resumed sessions outside the regular October-November period to focus more deeply on issues and projects.
The representative of Egypt, expressing his support for the resumed session’s format, said that the Committee must be consistent when using this tool. It should be widely utilized, not limited to specific products important to a group of Member States. He also emphasized the need to consider when the Committee has “taken a decision” on a recommendation by the International Law Commission. Wondering whether the recommendation itself must be recited or simply taken note of by the Committee, he said that, if the latter is the case, the Committee may have already “taken a decision” on crimes against humanity in 2019.
The representative of China requested the Secretariat to provide historical records of instances where the International Law Commission recommended that the General Assembly conclude an international convention based on the Commission’s recommendations, as well as information on the ultimate decisions made by the Assembly on those occasions. This would be helpful in the current work on crimes against humanity, he emphasized. Noting that the Commission is a body of experts, he pointed out that the Ambassador of Mexico, when he served as member of the Commission, acted in his personal capacity and not on behalf of his country. As well, the incumbent Commission member of China also acts as an individual expert and not on behalf of his Government.
The representative of Colombia, recalling that the Sixth Committee works on the information coming from the International Law Commission, underscored the importance of improving the relationship between the two entities. She pointed out that sometimes the Commission does not listen to States, in particular smaller and developing ones, because they do not submit information on time and in full. Acknowledging the room for improvement, she expressed hope that ongoing discussions will contribute to a more direct interaction between the members of the Sixth Committee.
The representative of Slovakia said it was interesting that, despite the Commission’s new practice of a two-step approach, with respect to this product [before the Committee], the Commission decided to revert to the direct recommendation to adopt a convention or to convene a conference. This might be an element that could inform the Committee’s consideration, he noted.
Mr. PRONTO noted that 27 of the 44 recommendations were for treaties or conventions to be adopted as either the next step or a possible future step. Fourteen resulted in treaties, including the Vienna Convention on the Law of Treaties, the Convention on the Law of the Sea and the Rome Statute. One — the 1996 draft code of crimes — was nebulous in that it ended up being subsumed by the work on the Rome Statute. Four — the Model Rules on Arbitral Procedure from the 1950s, the first phase of the most-favoured-nations clause from 1978, the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier and effects of armed conflicts on treaties — saw the General Assembly deciding on something else.
In these four instances, the Assembly did not follow recommendations and instead provided a basis for revisiting the issue in the future, he noted. The eight remaining recommendations, which includes the current draft articles, are still on the Sixth Committee’s agenda. In terms of next steps, he said the Secretariat will prepare a draft on procedural options which will be presented at a briefing during the seventy-ninth session in the summer of 2024. Many questions will be dealt with in that context, he added, underlining that those options will be generic, non-specific to any topic and applicable across the board.
The representative of Nigeria, expressing appreciation for the explanation from the Secretariat, said: “I am smiling now.” Noting the non-binding nature of the [future] treaty, she said the opportunity to negotiate is key and looked forward to further negotiations.
Mr. PRONTO, responding to the representative of Slovakia, said that the Commission had the perfectly viable option of a two-State approach, but it decided not to pursue that. The Commission felt confident in the status of the text and decided to go for the option of a full convention, he said.