By Victoria Ernst, PILPG Research Associate
This afternoon’s panel discussion was moderated by Professor Sean Murphy, Special Rapporteur on Crimes Against Humanity and member of the International Law Commission (ILC). Panelists included: Professor Charles Jalloh, also a member of the ILC; Professor Claus Kress, Director of the Institute for International Peace and Security Law at the University of Cologne; Judge O-Gon Kwon, President of the ICC; Professor Leila Sadat, Director of the Whitney R. Harris Law Institute and Special Advisor on Crimes Against Humanity to the ICC Prosecutor; and Solomon Sacco, senior legal advisor for Amnesty International.
Sean Murphy began the discussion with an overview of the process that led to the first draft of the convention. The ILC launched the project in 2014 and the first reading was completed and opened for comment this past summer. The draft convention consists of a preamble, 15 draft articles, and an annex. Comments will be accepted from states and NGOs through December 2018, and the Commission will submit a new report in early 2019, taking comments into account. The Commission plans to have a second and final completed draft by summer 2019, and shortly after to recommend adoption of the convention by the general assembly. The first draft of the convention can be found on the ILC website in the Commission’s 2017 report. Both members of the ILC on the panel, as well as the Amnesty International representative, called on audience members and the entire international community to submit comments.
Mr. Murphy also reiterated the need for a convention on crimes against humanity. He stressed that such a convention is not redundant. The ICC focuses on investigating and prosecuting crimes in The Hague, but there is still a need for national level prosecution and increased international cooperation in areas such as extradition. He mentioned that 50% of UN states have no national statute on crimes against humanity, including a third of State Parties to the Rome Statute. The Rome Statute does not require national legislation but incentivizes doing so. Mr. Murphy further noted that even states that do have national legislation on crimes against humanity, do not have legislation in line with the Rome Statute. He cited the fact that many national statutes on crimes against humanity were adopted in the 50’s, 60’s, and 70’s, long before the Rome Statute. One major gap in national legislation across states is that states typically only have jurisdiction if the crime is committed in their own territory or by one of their nationals. Few states have jurisdiction to prosecute individuals present in their territory that do not meet those jurisdictional elements. Addressing this gap is one of the major goals of the convention.
Next, the discussion was opened to the other panelists, starting with Professor Jalloh. Mr. Jalloh recognized the achievement of the Commission in completing the first draft in only three years. He also stressed the need for a convention on crimes against humanity to fill the gap in international and national prosecution for atrocity crimes. He noted the existence of conventions on genocide and war crimes and the lack of something similar to guide states in prosecuting crimes against humanity. In his opinion, the most significant developments in the convention related to extradition, mutual legal assistance, and the rights of victims. He recognized the difference in transnational prosecution of economic versus atrocity crimes. He hopes the provisions on mutual legal assistance will help address these gaps. He noted that three elements were not included in the first draft: a monetary mechanism, a prohibition on immunity for state officials, and a prohibition on amnesties. He admitted that he wanted all three included, but ultimately the Commission chose not to include them. The monetary mechanism was left out because the Commission perceived this as a political rather than legal issue. Immunities and amnesties were excluded because the Commission determined there was insufficient state practice to address them.
Professor Kress spoke next. Mr. Kress highlighted the significance of the dispute resolution mechanism in the draft convention. He sees this as a positive development that will allow broader review of legal issues. He used the Bosnian cases as an example. He noted that the crime of genocide was both too limited and too confining to fully adjudicate the crimes at issue. Specifically, the intent requirement in the genocide article constrained the Court. Mr. Kress concluded with areas of improvement he sees for the second draft. He hopes the convention will use some of its elements to further prosecution of war crimes and genocide. He hopes to see guidance on transitional justice and more legal space to prosecute war crimes in non-international armed conflict.
Judge Kwon spoke next. He reiterated Mr. Murphy’s opinion that the convention was not redundant. He believes the draft convention and the ICC are compatible and mutually beneficial. He sees the new convention as an opportunity for non-State Parties of the Rome Statute to fight against crimes against humanity. He also stressed concern about the lack of a prohibition on amnesties in the draft.
Mr. Sacco with Amnesty International spoke next. Overall, he said Amnesty is supportive of the convention. He highlighted the provisions on superior orders and the non-applicability of statute of limitations as especially positive. However, he was very transparent on Amnesty’s belief that the convention was not nearly progressive enough. He called on progressive states and civil society to submit comments to push the next draft in a more progressive direction. He specifically hopes for more progressive development on victims’ and witnesses’ rights and a ban on military courts. He was also very concerned about the lack of a prohibition on amnesties and immunities. He mentioned that Amnesty was also concerned with the incorporation in the convention of the Rome Statute’s definitions for gender and sexuality. Amnesty strongly believes that customary international law and global society has moved past those definitions and that the definitions used in the convention should reflect that progression.
The final panelist to speak was Professor Sadat. She reiterated the other panelists views that the convention was necessary in filling the gap in prosecution of atrocity crimes. She highlighted ethnic cleansing that might not meet the definition of genocide and sexual violence during peace time as particular areas of concern addressed by the convention. She said that the convention was a necessary step in ending impunity and the increased complementarity will create more international criminal law capacity at the national level. She noted that she hoped the preamble would include a Martin’s clause, as there will always be new ways to commit atrocity crimes and she believes it is important to make space for those developments in the convention. She concluded with recognizing that today was the 71st anniversary of the adoption of the Nuremberg principles and the development on this convention was an important step in continuing that legacy.
Next the discussion was extended to the audience for questions. One audience member asked why incitement was not included in the draft. He was especially concerned about the lack of an explicit mentioning of incitement in the articles relating to prevention. Mr. Murphy replied that the Commission discussed inclusion of incitement but ultimately decided to mirror the Rome Statute as closely as possible. He also added that the drafters believed that incitement was covered in the draft, even if not done so explicitly, through criminalizing attempt and aiding and abetting. Professor Sadat also replied that incitement is supported by the Rome Statute, even though it is not included. She pointed to the fact that incitement is included under genocide and that the likely reason for its exclusion under the article on crimes against humanity is because there was no convention to look to. Mr. Sacco, speaking in his personal capacity, agreed with the audience member that incitement was not adequately covered by the draft convention.
Another question posed to panel asked whether there were concerns that reducing crimes against humanity to a convention was in itself a step backwards. He was concerned about a dilution in the customary law that had developed around crimes against humanity. The panelists stressed that a dilution in law was not the intent of the convention and that adoption of the convention would further international law relating to the prosecution of crimes against humanity.
It was obvious that all the panelists strongly supported the development of the convention. However, it was also obvious that most, if not all of them, hoped the convention would become more progressive. The ILC members, especially Mr. Murphy, who has been intimately involved in the drafting, were more cautious about the convention becoming too progressive. Both members alluded to push-back from other commission members on certain progressive aspects. The exclusion of amnesties and immunities from the draft also suggests that the Commission’s membership overall is concerned with the acceptance of less progressive states of those elements. Mr. Sacco was very transparent on Amnesty’s concerns over areas where the convention fell short. Civil society will be crucial in helping to move more conservative ILC members towards accepting progressive additions to the convention.