Towards a New Global Treaty on Crimes Against Humanity

Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.

Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

The Crimes Against Humanity Initiative and Recent Developments at the ILC

On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity.

The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008.  The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1^st  ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available.

The Commission first included the topic of crimes against humanity on its long-term work program in 2013 on the basis of a report prepared by Professor Murphy. The report identified four key elements a new convention should have: a definition adopting Article 7 of the Rome Statute; an obligation to criminalize crimes against humanity with national legislation; robust inter-state cooperation procedures; and a clear obligation to prosecute or extradite offenders (para. 8). The report also emphasized how a new treaty would complement the Rome Statute (paras. 9-13).

In autumn 2013, states had an opportunity to comment on the Commission’s decision to include the topic in its long-term work program at the General Assembly Sixth Committee. Many states commented favorably on the prospect of a new crimes against humanity convention. Slovenia, for example, stated that “all efforts should be directed at filling this gap.” Austria, the Czech Republic, Italy, Norway, Peru, Poland and the United States also welcomed the decision. A major focus was the importance of ensuring a new treaty complements the Rome Statute, as the comments of Malaysia and the United Kingdom, for example, made clear. Some states questioned the need for a new treaty. For example, Iran stated that it “does not seem that … there is a legal loophole to be filled through the adoption of a new international instrument.” Other states questioning the need for a treaty included France, Malaysia, Romania and Russia.

In May 2014, prior to the Commission’s July session, the Proposed Conventionwas the basis of an Experts’ Meeting held at the Villa Moynier in Geneva bringing together international justice experts and members of the International Law Commission. Participants discussed the need for a new convention, its potential content and the process of building support amongst states. These discussions are summarized in a Report published on July 17, 2014.

The Need for a New Global Treaty on Crimes Against Humanity

Crimes against humanity occur on nearly every continent. Ongoing examples include Syria and North Korea. Historic examples include the death of an estimated 1.7 to 2.5 million Cambodians, out of a total population of 7 million, at the hands of the Khmer Rouge regime. Although these atrocities are often referred to as genocide, proving genocide is often legally difficult. In Cambodia, for example, the Khmer Rouge generally killed, tortured, starved or worked individuals to death not because of their appurtenance to a particular racial, ethnic, religious or national group – the categories to which the Genocide Convention applies – but because of their political or social class or the fact that they could be identified as intellectuals. While theories have been advanced attempting to apply the Genocide Convention to these atrocities, and it can be argued that some groups were exterminated qua groups, most experts agree that the killing fields of Cambodia largely fall outside the Genocide Convention’s scope.

During the 1990s, the wars in the former Yugoslavia and the Rwandan genocide stunned the international community with their ferocity, leading to the establishment of the ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). But in endeavoring to draft the Statutes for those tribunals, the international community could not agree upon the definition of crimes against humanity, leading to differing texts in the statutes of the ICTY and the ICTR. In 1994, Cherif Bassiouni underscored this problem in an important but little-noticed article, in which he lamented the “existence of a significant gap in the international normative proscriptive scheme, one which is regrettably met by political decision makers with shocking complacency.”

With the adoption of the ICC Statute in 1998, crimes against humanity were finally defined in an international treaty. However, it was a convention that by its own terms did not purport to represent customary law, although it may subsequently become a codification thereof.  Furthermore, the ICC Statute neither requires States Parties to adopt internal legislation on crimes against humanity nor provides a vehicle for inter-state cooperation. According to one recent study, one-third of ICC States Parties lack legislation on crimes against humanity, yet recent research demonstrates that crimes against humanity have been committed and charged in all situations currently under examination before the international criminal tribunals (and the ICC) to date.

Bosnia v. Serbia evidenced the difficulty created by the gaps in state responsibility for the commission of crimes against humanity. Because ICJ jurisdiction was based on a compromissory clause in the Genocide Convention, the Court’s discussion – which centered upon whether the atrocities committed in Bosnia constituted genocide – missed the point. Despite the 200,000 deaths, estimated 50,000 rapes, and 2.2 million people forcibly displaced as a result of the Serb ethnic cleansing campaign, genocide was held to have been proven only in the massacre of some 8,000 Muslim men and boys in Srebrenica in July 1995. ([2007] ICJ Rep 43 [297]). Although the Court recognized that crimes against humanity had been committed, it could not address them. Had a global treaty on crimes against humanity equipped the ICJ with jurisdiction, the Court could have more fully addressed Bosnia’s allegations.

The Initiative’s Work Bears Fruit

The Proposed Convention was elaborated to inspire and inform the debate on what provisions should be included in a new crimes against humanity convention. Drafted by experts without the constraints of government instructions (although deeply cognizant of political realities), it provides a platform for discussion by states, civil society and the International Law Commission. The Proposed Convention builds upon and complements the ICC Statute by retaining the Rome Statute definition of crimes against humanity while adding robust interstate cooperation, extradition and mutual legal assistance provisions. The creative work of the Initiative was to meld provisions of the Rome Statute, other existing international instruments and our own ideas into a single, coherent international convention that firmly establishes both state responsibility and individual criminal responsibility for the commission of crimes against humanity. The Proposed Convention innovates in many respects by bringing prevention into the instrument in a much more explicit way than predecessor instruments, by explicitly providing for state responsibility, by including the possibility of responsibility for the criminal acts of legal persons, by excluding defenses of immunities and statutory limitations, by prohibiting reservations and by establishing a unique institutional mechanism for supervision of the Convention.

It is encouraging to see the International Law Commission move forward with this important topic. We fully expect that the Proposed Convention will be useful to the ILC as a model of what a future convention might look like and to states and NGOs in thinking about how to achieve the best result.  It is to be hoped that the Commission’s work will be completed in timely fashion, and that it will inspire states to take up the challenge of negotiating and adopting a new convention on crimes against humanity to help complete the Rome Statute system and complete the Nuremberg legacy.