Sixth Committee, Continuing Resumed Session, Discusses Balancing Precision, Flexibility in National, International Measures to Address Crimes against Humanity
As the Sixth Committee (Legal) continued its consideration of the International Law Commission’s draft articles on “Crimes against humanity”, today’s debate demonstrated the complexity of harmonizing varying domestic legal frameworks, with speakers calling for clarifications of provisions that would govern jurisdiction, extradition and mutual legal assistance in a future convention aiming to prevent and punish such crimes.
The day’s discussions focused on the third and fourth thematic clusters, which pertain to the draft articles’ provisions concerning national and international measures, respectively, that States must take to prevent and punish crimes against humanity. (For background, see Press Release GA/L/3709.)
The draft article governing criminalization under national law “is at the core of a future crimes against humanity convention”, Romania’s delegate said, noting that it imposes on States concrete obligations to enact appropriate criminal legislation to address these crimes. The article’s provisions are key to holding perpetrators accountable, and they also reinforce national legal frameworks and the harmonization thereof, she noted, adding that crimes against humanity are punishable in the Romanian Criminal Code. “We are also very much in favour of the non-application of any statute of limitation for these offences,” she added.
Slovakia’s delegate agreed on the need to hold perpetrators accountable, pointing out that the wording of the draft article concerning the establishment of national jurisdiction reproduces, almost verbatim, relevant provisions of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. His delegation does not share concerns that such jurisdictional bases are new or controversial in international criminal law, he affirmed. Together with subsequent draft articles, this provision represents a crucial component of a framework designed to eliminate any haven for perpetrators of crimes against humanity.
However, the representative of Pakistan called for sensitivity in this area, stressing the importance of “acknowledging the diverse legislative frameworks of different nations”. Regarding criminalization under national law, he said that there is no customary rule obliging States to penalize crimes against humanity, also pointing out the lack of an agreed definition for such crimes. The draft articles should therefore be written in a recommendatory nature, he said, adding that certain provisions among them are based on an expansive interpretation of the doctrine of universal jurisdiction — on which the Committee has been unable to reach consensus for over a decade. “It is clear that more discussions are needed,” he stressed.
Along similar lines, the representative of Saudi Arabia observed that the draft articles’ provisions relating to command responsibility impose a new legal rule that goes against customary international law on the immunity of leaders and State officials. Regarding certain jurisdictional provisions within the draft articles, he stressed that they anchor the principle of universal jurisdiction at a time when there is still disparity in its implementation. This could lead to its abuse for political purposes, which might create tensions in States’ relations.
The representative of Thailand, meanwhile, noted that criminalization under national law may not necessarily require the domestic codification of crimes against humanity. Having a choice whether to criminalize such crimes or elements thereof would ensure that States have the flexibility to do so in a manner suited to their national legal systems, while still ensuring accountability.
Ambiguities such as these featured prominently in today’s discussion, as delegates considered the need to balance precise language with flexibility. Ireland’s delegate noted the insufficient clarity on concurrent jurisdiction in the draft article governing the establishment of national jurisdiction, welcoming further discussion on the prioritization of jurisdictions. “Jurisdictional priority should, in our view, be given to those States with the closest nexus to a crime,” he said.
The representative of the United Kingdom added that “it is preferable, where possible, for crimes against humanity to be prosecuted in the State in which they occurred”. However, it is necessary to consider how to avoid future disputes emanating from competing or overlapping claims to jurisdiction, he said, also underlining the need to clarify provisions requiring States to exclude crimes against humanity from statutes of limitations. While this will allow survivors to seek judicial remedy when they are ready, he suggested that it would be helpful to establish that this provision does not oblige States to prosecute crimes against humanity that took place before such offenses were criminalized under national law.
Türkiye’s delegate, detailing her country’s domestic legal system, said that national law does not permit the notification procedure mentioned in the draft article concerning preliminary measures States must take when an alleged offender is present on their territory, since national legislation aims to protect the alleged offender’s fundamental rights. Confidentiality of investigations may also constitute a legitimate reason for the delay or omission of such a notification, she pointed out, suggesting the draft provision be modified to allow for flexibility.
Much of the day’s discussion also centred around the 13 provisions of the draft article concerning extradition, as delegates pointed out the delicate nature of such requests — especially given the interaction between domestic legal systems with different rules. Egypt’s delegate called for clearer language in some of the provisions of that draft article, expressing concern over their apparent resort to universal jurisdiction — a principle not recognized by all States — and over how such provisions will be implemented in practice.
Colombia’s delegate highlighted paragraph 5 of that draft article as especially confusing. Per that paragraph, a State that makes extradition conditional on the existence of a treaty shall inform the Secretary-General whether it will use the draft articles as the legal basis for cooperation on extradition or seek to conclude treaties on extradition with other States. She said that, when States have a range of treaties at their disposal with which to request extradition, they should be able to select the one they want to apply.
The representative of Mexico pointed out that, for the purposes of extradition, States can establish jurisdiction over crimes against humanity not only when such crimes have been committed on their territory, but also when there is a nationality link with the alleged perpetrator or the victims. This allows the international community to ensure that, when a State does not have the will or capacity to prosecute a person allegedly responsible for committing a crime against humanity, such conduct does not go unpunished.
“We see that modern day transportation and communication have made it easier for a criminal to seek asylum in foreign nations, which presents a very real danger for the suppression and control of international crime,” Sri Lanka’s delegate reflected. His country has a robust extradition jurisdiction invested exclusively in its high court, which must be completely satisfied that there is good reason for the extradition. Regarding the provision that a request for extradition based on a political offence may not be refused on that ground alone, he noted that, while there is no universally acceptable definition of the term “political offence”, there is a generally accepted rule that political offenders are not subject to extradition.
The representative of the European Union, in its capacity as observer, said that extradition is an important tool for denying haven to perpetrators. “There is no — and should be no — exception for political offenses,” she said, while affirming that no one should be prosecuted or punished based on race, religion, nationality, ethnic origin, culture, membership in a particular social group or political opinion. The draft articles cannot be interpreted to impose an obligation to extradite if the requested State has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of impermissible grounds, she emphasized.
Italy’s delegate highlighted another provision of that draft article, per which 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”. This enhances legal certainty — an essential condition for effective judicial cooperation, he said.
The representative of Australia also emphasised the importance of that paragraph. It ensures that States that oppose the death penalty can comply with their national laws and international obligations — including by refusing extradition — unless the requesting State provides a guarantee that the death penalty will not be imposed, or if imposed, will not be carried out.
Echoing that, the representative of Norway, also speaking for Denmark, Finland, Iceland and Sweden, stated that this is important to these countries because of their firm opposition to the death penalty. She therefore praised the draft articles for striking the right balance between being effective and broadly acceptable to States. The representatives of Switzerland and South Africa also reiterated their delegations’ firm opposition to the use of capital punishment.
However, Singapore’s delegate said that States have the sovereign prerogative to determine the appropriate penalties for offences under national criminal law. “It is deeply disappointing that some countries continue to use these discussions on the draft articles to impose their views and values on other countries,” he said, adding that this is inappropriate and unnecessary. He also rejected the insinuation that capital punishment amounts to torture or cruel, inhuman or degrading treatment or punishment. There is no international consensus prohibiting its use, he said, which was echoed by the representative of Cameroon.
Several delegates also expressed concern over provisions in the draft article governing mutual legal assistance, with the representative of China highlighting language requiring States to “consider, as appropriate, entering into agreements or arrangements with international mechanisms that are established by the United Nations or by other international organizations and that have a mandate to collect evidence with respect to crimes against humanity”. If international organizations participate in evidence collection, they should be clearly mandated to do so by the States concerned, she stressed. Cooperation among States, the UN and international criminal justice institutions is subject to relevant treaties, she said, adding that, in the absence of a treaty, States should be able to decide whether to engage in such cooperation.
“Given the fact that there’s a whole host of illegitimate mechanisms and we are all well-aware of the politicized nature of their work,” the Russian Federation’s delegate proposed a categorical ban on cooperation with illegitimate bodies established in violation of international law and the Charter of the United Nations. Moreover, provisions on mutual legal assistance push the draft articles’ main topic into the background, he added.
Also speaking on the draft article governing mutual legal assistance, India’s delegate pointed out the inclusion of the concept of liability for “legal persons” in that context is bound to create practical difficulties and uncertainties concerning implementation. Either this issue should be left to States to decide, in accordance with domestic law, or it should be clarified that mutual legal assistance afforded in this context would be subject to the domestic law of the requested State that governs liability, investigations, prosecutions and judicial or other proceedings concerning such “legal persons”, she said.
The representative of El Salvador, for her part, emphasized that, in future negotiation of a draft convention, the procedures for gathering and preserving evidence and for exchanging electronic evidence would have to be considered. Further, on the draft article concerning the settlement of disputes, she added that compulsory referral to the International Court of Justice is not the only way to settle disputes arising from the implementation of a treaty that incorporates these provisions. In that regard, she stressed that States must be able to freely choose the means for peaceful settlement of disputes.
Welcoming the reference to the World Court, Lebanon’s delegate — who commended its recent legally binding orders on the application of the Genocide Convention in the Gaza Strip — affirmed that it should be possible to submit a request to the Court without prior recourse to negotiations. The representative of the United States also acknowledged the Court’s important role, but welcomed the inclusion of a process by which States can declare that they do not consider themselves bound by the provision to settle disputes through the International Court of Justice. Conventions under which States may make reservations to or otherwise opt out of the Court’s jurisdiction are more likely to be ratified by other States, she added.
Delegates also discussed the matter of amnesty, with Sierra Leone’s delegate drawing attention to the Commission’s commentary on the draft article relating to the principle of aut dedere aut judicare — “extradite or prosecute” — which explains that a State’s ability to grant amnesty might not be compatible with its obligation to submit the case to competent authorities for investigation and possible prosecution. “We agree with this assessment,” he said, expressing concern that granting amnesty might undermine or conflict with other provisions of the draft articles. “Including an explicit clause addressing amnesties, especially blanket amnesties, would be highly valuable,” he said.
However, the representative of Indonesia commended the Commission for not including amnesty in that draft article. Historically, amnesties have been used as tools for national reconciliation, to heal the wounds of conflicts or to transition from periods of turmoil to peace. Its relationship with the obligation to prosecute or to extradite is fraught with legal, ethical and political complexities, he pointed out, highlighting the challenge of respecting international obligations while acknowledging the nuanced realities of transitional justice and reconciliation processes. “Let this question be decided” within the framework of domestic legal and political processes, he said.