Sixth Committee Concludes Resumed Session on Whether to Codify International Law Commission’s Crimes against Humanity Draft Articles
Concluding its resumed session today debating on whether to codify the International Law Commission’s draft articles on crimes against humanity into a convention, the Sixth Committee (Legal) heard oral reports from co-facilitators on the draft articles’ five Thematic Clusters, as speakers emphasized the need to end such crimes, with some expressing readiness to negotiate a new international instrument.
Opening the meeting, Pedro Comissário Afonso (Mozambique), Chair of the Sixth Committee, commended the delegations’ high level of engagement, enthusiasm and their willingness to try out the novel “interactive” working format. Acknowledging the leading role of the Secretariat in developing the unique working arrangements, he noted: “I think we have all benefited from the experience.”
Although delegations’ views varied on the way to reflect the principles of international law and the Charter, and whether the time was ripe for a new convention, he also spotlighted a common thread of the importance of criminalizing, preventing and punishing these international crimes within States’ national legal systems. “The United Nations is to be a centre for harmonizing the actions of nations in the attainment of these common ends,” he stressed, noting that “pure multilateralism” lays at the heart of it all. “This is what we have been trying to do this week,” he said.
Co-facilitator Edgar Daniela Leal Matta (Guatemala), giving a detailed report on Thematic Cluster 1, noted that several delegations said a convention based on the draft articles would fill a gap in the existing legal framework. (See Press Release GA/L/3679.) However, other delegations, citing various instruments and courts, asked to what extent there is such a gap. Also debated was the reference in the draft articles’ preamble to the definition of crimes against humanity in article 7 of the Rome Statute. While some speakers highlighted the importance of consistency between a possible convention and the Rome Statute to avoid fragmentation of international law, others pointed out that Statute does not enjoy universal adherence and therefore could harm acceptance of a future convention, he reported.
Anna Pàla Sverrisdóttir (Iceland), in her report on Thematic Cluster 2, said that the central question delegations discussed concerned article 7 of the Rome Statute, after which draft article 2, on the definition of such crimes, was modelled. (See Press Release GA/L/3680.) With many States not parties to the Statute, several speakers pointed out that article 7 did not reflect customary international law. However, other speakers stated that using article 7 of the Rome Statute as a starting point for draft article 2 was reasonable and did not affected the obligations of States that were not parties to the Statute. A suggestion was made to incorporate certain aspects of the International Criminal Court’s Elements of Crimes into draft article 2 for clarity, she reported.
Sarah Zahirah Ruhama (Malaysia), reporting on Thematic Cluster 3, recalled the diverging views expressed on paragraph 7 of draft article 6, which concerns appropriate penalties. (See Press Release GA/L/3681.) She noted that several delegations said that there could be no death penalty for crimes against humanity. Others, however, pointed out that there is no universal prohibition against the death penalty under customary international law. She also recounted several proposals to refine draft article 9 — concerning preliminary measures — one of which emphasized the need to introduce safeguards to prevent this provision’s abuse for political purposes.
Also reporting on Thematic Cluster 4, on national and international measures, she recalled that some delegations welcomed the fact that draft article 13 — concerning extradition — was derived from widely accepted provisions of certain international instruments. (See Press Release GA/L/3681.) However, some delegates said that those instruments should not be a basis for the draft articles, since crimes against humanity require a more specific approach. Still others proposed following the example of the international convention governing genocide, which gives more discretion to States in defining extradition agreements. On draft article 1 — dispute settlement — she reported that some delegations did not support paragraph 3, which allows States to opt-out of the dispute-settlement mechanism. Such delegations said this paragraph weakens the provision, while others stated that draft article 15 reflects a careful balance in this regard.
Mr. Leal Matta, in his report on Thematic Cluster 5, said that, while some States endorsed the principle of non-refoulement, others had reservations about its inclusion. (See Press Release GA/L/3682.) Speakers also underlined the importance to fair-trial guarantees in the future convention, with some delegations proposing to bring the text closer to the Rome Statute and specify these guarantees under national or international law. Highlighting victims’ and witnesses’ testimonies for prosecution, some delegations said this matter should be left to national law. Calls for adopting a definition for witnesses of atrocities and children born of sexual violence were also made. Several delegations requested further discussions on reparations, pointing to the absence of such for the transatlantic slave trade and other colonial crimes. The inclusion of a gender perspective, Indigenous Peoples and the rights of children was also suggested, he noted.
Ms. Sverrisdóttir, informing the Committee that a briefing by the Secretariat, in lieu of a debate, is scheduled at next year's resumed session, declared: “Our fight to end crimes against humanity must unite, and not divide us.”
As the floor opened up, Singapore’s representative, while welcoming the co-facilitators’ reports, pointed out that his delegation objected to the proposal of introducing safeguards to draft article 13 in cases of extradition to a State where an alleged offender may face capital punishment. He expressed hope that all views will be reflected in a balanced way in the final report.
The representative of Cameroon, however, noted that “these reports are what they are” — summaries that do not in any way undermine ideas communicated, but not included in the report. He also stressed that his delegation will not be distracted or intimidated “by any attitude or manoeuvrer”, and that it “serenely commits” to working with other colleagues to fulfil the Committee’s mandate. The immediate challenge, he added, “is to climb the long and winding path to provide provisions to fight impunity”.
Egypt’s delegate emphasized the importance of reflecting “sticking points” and issues presented during the resumed session, including politicization, capital punishment, non-refoulement, assessing Member States’ human rights situations for extraditions and gender. Such matters should be given sufficient space in the oral reports and in the final report, he stated.
On another note, the representative of the Gambia said that the conduct of the resumed session “has given us hope. Our differences are getting narrower and narrower.” Because of the constructive engagement between delegates, his delegation was ready now to negotiate for a new convention, he reported, adding that, by the seventy-ninth session, the Committee should be ready to produce such an instrument. Emphasizing that there is a need to end crimes against humanity, he said that for all the people who have suffered from such crimes and cannot speak for themselves, the Committee is here to speak for them.