(Editor’s Note: This article is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity, due to be considered in discussions that resume on Oct. 13 in the Sixth Committee, the U.N. General Assembly’s primary forum for discussion of legal questions.)
In 2019, the International Law Commission of the United Nations completed its second and final reading of the Draft Convention on the Prohibition and Punishment of Crimes Against Humanity (draft convention). Supporters of the draft convention hope that it will become an international convention in the near future.
The draft convention was drafted between 2009 and 2013 under the auspices of the Crimes Against Humanity Convention Initiative, launched by the Whitney R. Harris World Law Institute of the Washington University in St. Louis. (I have been a member of the initiative’s steering committee.) It was the product of many expert meetings and working papers commissioned by the initiative. The U.N.’s International Law Commission took up the draft in 2014 and appointed as special rapporteur Sean Murphy, who had attended a meeting of the initiative and expressed an interest to the ILC in working on the topic.
From the very inception of the initiative, all participants were cognizant of the important relationship between the draft convention and the Rome Statute for the International Criminal Court (ICC). Some expressed the view that the inclusion and definition of crimes against humanity in the Rome Statute made a further international convention unnecessary. However, the view of the overwhelming majority of the experts was that the draft convention was likely to receive support from a larger number of member states than the Rome Statute. The latter has been ratified by about two-thirds of the full membership of the U.N. and excludes four large and important nations, namely China, India, the Russian Federation, and the United States. Perhaps even more relevant, the provisions of the proposed new convention, for the most part, are concerned with issues not found in the Rome Statute. In particular, while the Rome Statute provides for cooperation between States Parties and the ICC, it does not provide for cooperation between States themselves, on the prohibition or the prosecution of crimes against humanity.
From a political perspective, it was unlikely that many members of the Rome Statute would decline to ratify the draft convention, and an appreciable number of them who did not ratify the Rome Statute are likely willing to ratify it. The United States, for example, was opposed to the ICC having jurisdiction over U.S. nationals. The draft treaty recognizes that crimes against humanity constitute crimes under international law, which may give rise to the responsibility of States for internationally wrongful acts. It does not, however, provide for any international jurisdiction and is quite consistent with the policies of the United States. Indeed, the preamble of the draft convention recognizes that it is the duty of every State to exercise its domestic criminal jurisdiction over those responsible for international crimes, including crimes against humanity.
At meetings of the Sixth Committee, the United States has not opposed the need for a convention on crimes against humanity. This is true of other States that have not ratified the Rome Statute, including the Russian Federation. China and India are in a small minority of States that have expressed doubt about the need for a new convention.
In order to avoid possible conflict between the draft convention and the Rome Statute, the former adopts the definition of crimes against humanity that appears in the Rome Statute. There are no changes save in respect of modifications of language specific to the International Criminal Court. At the core of the convention are the prevention, punishment, and effective capacity building to facilitate such prevention and punishment. All three of those goals are consistent with the Rome Statute and the system it establishes.
The provisions of the draft convention would strengthen the position of the ICC Office of the Prosecutor in pursuing a policy of positive complementarity. Parties to the draft convention, whether or not they had ratified the Rome Statute, would have the international legal obligation to incorporate crimes against humanity into their domestic system. Their prosecuting authorities and courts would be empowered to investigate and prosecute those crimes. If they do so in good faith, the system of complementarity that governs the ICC would preclude the ICC from exercising its jurisdiction in respect of those investigations and prosecutions.
Genocide is governed by its own Convention of 1948, and so too are war crimes in the Geneva Conventions of 1949 and their 1977 optional protocols. Crimes against humanity is the only international crime not governed by its own convention. It is this omission that makes it important for the global community to formally recognize, in a convention, the heinous conduct that is defined as crimes against humanity in both the Rome Statute and the draft convention. In 2020, the ILC recommended that the draft convention should be agreed by the General Assembly or by an international conference of plenipotentiaries. That recommendation deserves strong support from all members of the United Nations.