‘A convention without a monitoring mechanism is likely to be an “orphan”’.149 By these words, Sadat calls for inclusion in the proposed Convention of such a treaty body. While states will quite understandably wish to be convinced of the need for investing in such a body, Sadat’s proposal deserves close consideration.
The mandate of such a body should reflect the fact that the proposed convention differs from human rights instruments. There is therefore no need to provide for a mechanism competent to receive individual complaints. It is also not desirable to follow the model of the Convention on the Elimination of Racial Discrimination and to entrust a treaty body with the settlement of disputes among states pursuant to a complicated set of procedures.150
The mandate should rather be confined to monitoring states’ legislative, administrative and judicial activity in establishing the domestic infrastructure required to prevent and punish crimes against humanity and in actually employing it when appropriate. Moreover, the treaty body could create a useful ‘discursive space’.151
6. The Question of Reservations
In accordance with the Commission’s practice, the Draft Articles do not contain a proposal regarding reservations. Admitting reservations might be another way to deal with the attempt to prevent the proposed Convention from increasing divisions among States about international criminal justice. However, the law on crimes against humanity forms part of the fundamentals of the current international legal order and this seriously cautions against allowing for fragmentation.
In this text, it has been suggested to make use of this opportunity to send out the signal that international as well as national courts should strictly construe the definition of crimes against humanity so that it can be stated with confidence that the law on crimes against humanity is based not on lofty aspirations, but on a rock solid global consensus.152 It has furthermore been noted that the provisions on extradition and mutual legal assistance provide ample space for States to have their legitimate concerns be accommodated by a refusal to grant a request for co-operation and it has been considered to provide for an opt out clause should those provisions be given a desirable vertical dimension.153 It has also been observed with
149 See Sadat, in this Special Issue.
150 For the implications of such a model for Draft Art. 15, see Zimmermann and Boos, supra note 44.
151 As observed by the Dutch Advisory Committee on Issues of Public International Law, supra note 56, sub 5.
152 Supra sub 2. D.
153 Supra sub 4. D. 1., 3.
regret, but understanding, that the proposed compromissory clause is coupled with the possibility to opt out. Finally, it has been suggested to take up the as of yet unresolved questions of immunity ratione materiae with a view genuinely to balance the ideal of an equal enforcement of international criminal law against competing considerations.
Beyond all this, however, it is difficult to see how reservations could not defeat the purpose of the proposed convention at its core and endanger the integrity of a core element of the current international legal order.
7. A Specialised Convention on Crimes Against Humanity v. a (More) Comprehensive Convention for Crimes under (General) International Law
In the very first paragraph of the commentaries, the Commission asks the question whether it is the right approach to confine the proposed convention to one single crime under (general) international law. But the ILC does not really discuss this question. It rather leaves the matter to states for consideration in the future.154 What follows are no more than a few tentative observations to stimulate this debate.
The proposal for the adoption of an international treaty, which forms the subject matter of this special issue, is confined to crimes against humanity. Any consideration whether it is desirable to take a more comprehensive approach must begin with identifying those crimes which could be candidates for such a more general international treaty regulation. In that respect, the very first sentence of the commentaries states: ‘Three crimes typically have featured in the jurisdiction of international criminal tribunals: genocide, crimes against humanity and war crimes’.155 One hopes that the wording of this sentence will be adjusted in the course of the second reading so that it includes the crime of aggression, over which the ICC has active jurisdiction as from 17 July 2018.156 With this addition, the inaugural sentence of the commentaries would comprehensively list the existing crimes under (general) international law.
Those could form the object of a comprehensive international treaty regime regarding prevention and national prosecution.
In order to assess the need for such a comprehensive approach, it is useful to consider what the overall picture would be if the proposed convention remained confined to crimes against humanity. War crimes form the object of, in particular, the Geneva Conventions and the two Additional Protocols. Those conventions contain a range of different provisions, which
154 2017 ILC Report, supra note 11, § 1, at 21; see also ibid., § 2, at 24-25; for a thoughtful discussion, see Tladi, supra note 69.
155 2017 ILC Report, supra note 11, § 1, at 21.
156 C. Kreß, ‘On the Activation of the ICC’s Jurisdiction over the Crime of Aggression’, 16 JICJ (2018) 1-18.
can be related to the purpose of prevention. Regarding domestic prosecution, war crimes committed in international armed conflict are essentially covered by the grave breaches regime of the Geneva Conventions and their First Additional Protocol, a regime that is far more cursory than that of the proposed convention. The domestic prosecution of war crimes committed in non-international armed conflict is not covered by any international treaty regime. The United Nations Charter, and in particular its collective security system, relates to the prevention of crimes of aggression. Yet, no existing international treaty covers their domestic prosecution.
The Genocide Convention covers prevention and punishment of genocide. In a number of respects, this Convention’s regulation is less detailed than that proposed for the convention on the prevention and punishment of crimes against humanity. In other parts, the Genocide Convention’s legal regime could do with an update. At first sight, this diversity regarding the international treaty coverage of crimes under (general) international law appears to call for harmonization through one comprehensive international treaty. On a little closer inspection, however, things, unsurprisingly, turn out to be far more complex.
The UN Charter regime regarding the prevention of the use of force is not lightly to be touched at and the question of domestic prosecution of crimes of aggression may not call for the same answers as crimes against humanity in view of, for example, the absolute leadership character of this crime and a widespread perception that an international criminal court is the most appropriate forum to deal with leaders who may be responsible for aggression. This may suggest that the crime of aggression be better left out the international treaty regime under consideration.
Regarding war crimes, the Geneva Conventions already deal with prevention under certain angles and if improvements were to commend themselves, they should probably be made within the framework of the Geneva body of international treaty law. This is not to say that the initiative for a ‘Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes’ is ill conceived. Quite to the contrary, the idea to adopt such a treaty is welcome in view of the relatively cursory international treaty regulation of the domestic prosecution of war crimes committed in international armed conflict and the absence of such regulation in the case of war crimes committed in non-international armed conflict. Whether or not such a new treaty could add anything of real significance to the proposed convention’s regulation on crimes against humanity remains to be seen. If yes, this added value should indeed go into a freestanding international treaty for extradition and mutual legal assistance rather than it being included in the proposed convention on crimes against humanity. If no added value regarding the
prosecution of crimes against humanity was to be achieved, it should be considered whether the proposed ‘Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes’ would better be confined to war crimes in which form it could become a new Additional Protocol to the Geneva Conventions.157
This leaves one with genocide and the perhaps surprising suggestion to consider whether in that respect a more comprehensive approach appears feasible and desirable. While it is true that the prohibitions of genocide and crimes against humanity do not protect precisely the same values,158 the intimate historic and systematic connection between these crimes cannot be denied. What is more, in practice, the distinction between those two crimes often means drawing an extremely fine line. Last but not least, the Genocide Convention, with its two essential pillars of prevention and punishment, has rightly served as the model for the proposed convention from the outset of the discussion about this project.
Therefore, the question most worthy of consideration by states is whether the insights gained in the course of the work conducted both by the Crimes Against Humanity Initiative and the ILC should not be used also to update the Genocide Convention. Just consider the benefit in formulating an identical regime on prevention for both crimes, in replacing Article VI of the Genocide Convention by the legal regime proposed by Draft Articles 7 to 10, together with the improvements suggested in this symposium, in extending the provisions on extradition and mutual legal assistance as well as on victims and fair treatment, and, not least, in making any carefully devised solution that may be found with respect to the unresolved questions of immunity and amnesty equally applicable to genocide. There would then be one single convention on genocide and crimes against humanity providing for a coherent legal regime. For those states that are currently parties to the Genocide Convention and would then ratify the new more comprehensive convention, the latter would take the place of the former.159
8. A Final Word on the Way Ahead
One cannot be but impressed how far the efforts laying the foundations of a new convention on crimes against humanity have taken us in a relatively short time. While it is certainly desirable to maintain the momentum, a ‘rush to conclusion’ should be avoided. Solid groundwork has been laid, but there is room for refinement in quite a number of respects in order to strengthen the proposed Convention. A workable treaty regime of inter-state co-operation regarding the
157 For an argument in support of one comprehensive convention on crimes against humanity, genocide and war crimes, see Tladi, supra note, 69, 9-11.
158 The historic explanation for this has recently been elucidated in P. Sands, East West Street. On the Origins of
“Genocide” and “Crimes Against Humanity” (Alfred A. Knopf, 2016).
159 For an observation on this point in historical perspective, see Garibian, supra note 9, at 52-53.
prosecution of crimes against humanity that does not deepen the divide among states about the international criminal justice system, must confront rather than avoid the questions of immunity ratione materiae and amnesty. What can be done by the ILC during its second reading and what will be better left for a diplomatic conference remains to be seen. The same is true for the question of whether a momentum can be created to extend the proposed convention to genocide.
At this juncture, no safe prediction is possible whether a draft convention will be presented which, to borrow the words of the Special Rapporteur, is ‘really needed’ and at the same time
‘politically feasible’.160 But it can safely be stated that every additional investment in intellectual energy and time to arrive at the formulation of such a draft is worthy of the effort.
For the adoption of a Convention on Crimes against Humanity and preferably one that also updates the Genocide Convention fulfilling these two criteria would markyet another milestone in the evolution of the international criminal justice system.
160 Murphy, supra note 4.