Delegates Raise Definitional Concerns and Discuss States’ Obligation to Prevent and Punish Crimes against Humanity as Sixth Committee Resumed Session Continues
As the Sixth Committee (Legal) continued its resumed session on the International Law Commission’s draft articles on “Crimes against humanity” today, delegates sparred over issues including the Commission’s use of the Rome Statute of the International Criminal Court as a starting point for the definition of such crimes and the contours of States’ obligation to prevent and punish the commission of these serious offenses.
Today’s meeting began as delegates resumed consideration of the second thematic cluster — the draft articles’ provisions relating to definitions and general obligations. (For background, see Press Release GA/L/3708.)
The representative of France, while noting that the draft articles’ definition of crimes against humanity is identical to that contained in the Rome Statute, acknowledged several delegations’ position that the draft articles should not be modelled on that text because it is not universally accepted. However, she observed that the resemblance between the draft articles’ definition of such crimes and the formulation found in the Rome Statute is not surprising, given the latter’s historical importance to the codification of international criminal law.
The representative of Argentina, also expressing support for the use of the Rome Statute’s definition of crimes against humanity, pointed out that the draft articles establish that the definitions therein exist without prejudice to other, broader definitions. Adding, however, that one of the goals of a future convention in this area would be to harmonize national legislation, he suggested that it would be worthwhile to consider more recent developments in international law — such as those that concern forced disappearances.
Reconciling historical language with emerging realities emerged as a theme during the day, typified by one of the “mini-debates” [Interactive Forum format] that arose in the Committee’s discussion. (This format was used during the 2023 resumed session to encourage additional substantive exchanges between delegations. For background, see Press Release GA/L/3679.)
In one such exchange, while Colombia’s representative said that the Rome Statute was a suitable point of departure for defining crimes against humanity in a future convention, Syria’s delegate urged those present not to limit consideration to definitions derived from the Nuremberg principles because the way war is fought has changed.
Building on that, Cameroon’s representative called on the Committee to formulate an autonomous definition of crimes against humanity, highlighting the limitations of using a “copy” of previous formulations by observing that, now, “some thoughts are more murderous than weapons”. Meanwhile, Portugal’s delegate noted that there are good legal reasons to use the Rome Statute’s definition as a starting point, but added: “That doesn’t mean we’re not ready to discuss its adjustment.”
For her part, the representative of Colombia said that the specific list of acts considered crimes against humanity by the draft articles “must be the floor, and not the ceiling”. Jurisprudence is constantly evolving, she said, stating that the draft articles’ definition of persecution is too restrictive. Stressing the need for a cross-cutting gender focus, she said such an approach should consider the pronouns that are used as well as the differentiated approaches needed for victims.
Noting that her country is a signatory to the Rome Statue, Nigeria’s delegate welcomed that the draft articles’ definition of crimes against humanity was modelled on that Statute. However, she expressed concern over the Commission’s recommendation to delete the Statute’s understanding of gender as referring to the two sexes, male and female. Challenging the “conspiracy theory” that this understanding is obsolete and outdated, she also questioned the idea that the Commission’s decision was based on an “overwhelming number of submissions” requesting the deletion.
On that, the representative of Malta and the observer for the Holy See urged that the draft articles reflect the gender dimension of atrocity crimes. However, the representatives of Romania, Hungary, Portugal, New Zealand and Cyprus joined others to express support for the Commission’s decision to exclude the Rome Statute’s definition of gender from the draft articles — leaving the issue up to States to afford greater flexibility.
Other definitional notes of concern were sounded throughout the day, with Cuba’s representative stating that — as Cuba is not party to the Rome Statute — her delegation is unable to start a substantive negotiation process involving provisions based on that instrument. She also pointed out that certain wording in the draft articles’ definition of “attack directed against any civilian population” is ambiguous. For example, while the text stipulates that such an attack may be committed pursuant to State or organizational policy, it does not define the type of organization to which it refers.
Algeria’s delegate also emphasized that the Rome Statute is not universally accepted and underlined the importance of considering other definitions of crimes against humanity — such as the one used in the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. He also stressed the importance of removing any ambiguity from the draft articles’ provisions concerning each State’s responsibility to prevent crimes against humanity through “cooperation with other States, relevant intergovernmental organizations and, as appropriate, other organizations”. In this instance, it is also necessary to clarify what the term “organizations” means in this context.
Similarly, Morocco’s delegate pushed back on the “broad and equivocal” phrasing of certain definitions in the draft articles, noting that the Rome Statute does not address various practices that constitute modern forms of crimes against humanity. The Commission should study these new forms, he said, highlighting illegal medical experiments and environmental violations as examples. He added that the draft articles’ definition of torture is not consistent with that present in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Adding to that, Iran’s delegate said the draft articles’ definition of crimes against humanity could directly reference the use of unilateral coercive measures against civilians. Such measures deprive populations of access to food and medicine, which can result in deaths. Further, the formulation of the draft articles’ provisions governing States’ general obligations with respect to crimes against humanity — according to which such crimes are “crimes under international law” — is, to some extent, confusing. There exist other treaty-based definitions of “crimes under international law”, he pointed out, such as those that include transnational organized crime and corruption among such offenses.
Further discussion on the draft articles’ provisions concerning States’ obligation to protect and prevent crimes against humanity saw the representative of the Netherlands note that these obligations should be viewed as separate but interrelated. The obligation to prevent is one of conduct and not of result, she said, as States are obliged to employ all means reasonably available to them to prevent such crimes as far as possible. She also noted that crimes against humanity can be committed in peacetime as well as during armed conflict, welcoming the draft articles’ recognition of this.
The representative of Singapore agreed that the obligation to prevent is one of conduct and not result, to be fulfilled through appropriate measures determined by each State under national frameworks in conformity with applicable international law. However, he called for clarification of the scope of States’ obligation to prevent crimes against humanity through cooperation and of the relationship between this obligation and other provisions within the draft articles detailing specific acts of cooperation.
Nevertheless, the representative of Australia welcomed that the Commission provided high-level and non-exhaustive guidance on the scope of the obligation to prevent while also maintaining a level of flexibility for States when implementing preventive measures most appropriate for their national systems. She also highlighted the draft articles’ provisions indicating that all preventive measures, and inter-State cooperation towards this end, must conform with international law. She noted, nonetheless, that some States have suggested that the draft articles’ provisions governing the prevention obligation be elaborated for clarity or precision.
For her part, the representative of El Salvador said that, because the draft articles recognize that the prohibition of crimes against humanity is a peremptory norm of international law, the obligation of prevention becomes equally peremptory in nature. Welcoming that the draft articles prohibit States from engaging in conduct that constitutes crimes against humanity, she suggested that they also include a prohibition against facilitating mechanisms to assist the commission of such crimes.
Canada’s delegate, meanwhile, urged bringing language in the draft article governing the prevention obligation into closer alignment with that present in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, given the similarities between the two. Regarding cooperation in the context of prevention, he said that, while States should retain flexibility, effective inter-State cooperation is a key element of any future convention aiming to prevent the commission of crimes against humanity.
Addressing jurisdiction, Egypt’s delegate spotlighted a specific provision within the draft articles concerning States’ general obligations, according to which each State “undertakes to prevent and to punish crimes against humanity, which are crimes under international law, whether or not committed in time of armed conflict”. He affirmed that this undertaking should be confined to cases where there is a link between the crime and the State exercising jurisdiction in relation to it.
Sounding a strong note of warning on prevention, the representative of the United Arab Emirates underlined its critical importance — while also emphasizing the special responsibility of the Security Council and its members in the maintenance of international peace and security and their role in the prevention of crimes against humanity. “This also means that, in situations of crimes against humanity, permanent members should refrain from using their veto power in order to fulfil the obligation of prevention,” she stressed.
After concluding its debate on the draft articles’ provisions relating to definitions and general obligations, the Committee then took up the third thematic cluster — provisions relating to national measures to address crimes against humanity. Delegates generally expressed support for the draft articles’ provisions governing the establishment of national jurisdiction in this context, with the representative of Denmark — also speaking for Finland, Iceland, Norway and Sweden — noting that such provisions oblige States to establish a relatively wide range of jurisdictional bases for domestic investigations and prosecutions.
The representative of the European Union, in its capacity as observer, agreed that the draft articles provide for a range of jurisdictional bases — such as those of territoriality or active or passive personality — without excluding other ones. While some delegations have expressed concern that these provisions could be misused for political purposes, she said that the draft articles’ jurisdictional provisions ultimately reflect a commitment to fighting impunity and ensuring that individuals responsible for such egregious crimes face consequences for their actions — wherever they are.
The draft article concerning national jurisdiction “is yet another article that can be found in other international conventions and treaties addressing both international and other crimes” said the representative of Latvia, speaking also for Estonia and Lithuania. Commending that, she said that all States have a role to play in combating such grave crimes by establishing national jurisdiction over crimes against humanity.
Welcoming the inclusion of a provision obliging each State to establish jurisdiction over such crimes in cases where the alleged offender is present in any territory under its jurisdiction — provided it does not extradite or surrender said offender — Jordan’s delegate called this an effective tool to bring the perpetrators of crimes against humanity to justice. To require a State to either extradite or establish jurisdiction would ensure that such perpetrators will have fewer safe havens, she said.
The representative of the Republic of Korea, meanwhile, observed that, while the draft articles require States to establish a legal framework for jurisdiction, they do not mandate the actual exercise of this jurisdiction. However, Brazil’s delegate underscored that the establishment of national jurisdiction – especially by means of the principle of universality – must not serve interests other than those of justice. Therefore, it is important to introduce safeguards against the abuse and misuse of universal jurisdiction, he said.
Nevertheless, Austria’s representative pointed out that, under the draft articles, States can exercise jurisdiction only when the perpetrator is present in their territory — thus requiring a connection between the perpetrator and the forum State, based on the territoriality principle. “In fact, the draft articles do not require States to exercise universal jurisdiction,” he observed.