18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 2 (3 December 2019)
Name of the Event: Draft Convention on Crimes Against Humanity (Side Event hosted by Germany)
Overview by: Emma Bakkum, Senior Research Associate PILPG-NL
Summary of the Event:
Unlike genocide and war crimes, crimes against humanity were never codified in a specific convention. The International Law Commission (ILC) is working towards exactly this: a convention on crimes against humanity. Alongside the ASP, representatives of States Parties and other interested came together to discuss the status of the draft convention on crimes against humanity.
Sean D. Murphy (President of the American Society of International Law, US Member of the International Law Commission and Special Rapporteur for Crimes against Humanity) discussed the progress and next steps of the draft convention on crimes against humanity. He mentioned that of the States Parties to the Rome Statute 40% has no national law in place regarding crimes against humanity. While this is partly explained by the fact that the Rome Statute does not in an operative provision oblige states to adopt national law, the ILC felt that states could do more to accurately criminalize crimes against humanity in their domestic systems.
The ILC started working on the project in 2014, with the clear aim to develop a draft treaty on the prevention and punishment of crimes against humanity. In August of this year, the Report of the International Law Commission on the work of the seventy-first session (Chapter IV), presented the draft text of 15 articles, which includes a definition of crimes against humanity and an obligation on states to refrain from committing and to prevent crimes against humanity. The draft convention further includes provisions on jurisdiction, rights of victims, extradition procedures, and interstate dispute settlements.
When the Sixth Committee of the UN (legal) debated the ILC’s report in October, many states strongly supported moving forward with a convention. However, some states expressed concern about timing. Nonetheless, Mr. Murphy expressed hope towards the adoption of a convention on crimes against humanity for several reasons. For instance, developing an international treaty would encourage and assist states in adopting national legislation, in a harmonizing way. This would furthermore alleviate the strong focus on international criminal courts to prosecute crimes against humanity in line with the complementarity principle. Mr. Murphy also noted that adopting a convention would take to a further level the issues of stigmatizing crimes against humanity. Moreover, the convention could pose a solution to some of the problems faced with inter-state cooperation, both with regard to states that are a party to the Rome Statute and those that are not. Mr. Murphy finally added that the draft convention is not so unusual or different from other treaties as the ILC replicated the type of languages found in existing treaties.
Larissa van den Herik (Vice-dean Leiden Law School and professor of public international law at the Grotius Centre for International Legal Studies at Leiden University) spoke about the relation between this initiative and the initiative for a Multilateral Treaty on Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes (MLA-treaty), as concerns about overlap between the initiatives had arisen. Ms. van den Herik stated that these two initiatives do not have to be mutually exclusive - they are not only compatible but even mutually reinforcing.
During the discussion, the best way forward with the draft convention was discussed and Joachim Bertele (Director of International Law, Federal Foreign Office Germany) left the participants of the side event with the question of what could be achieved from today until next year.