(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.)

When the International Law Commission (ILC) embarked in 2014 on its project of drafting articles for a Convention on the Prevention and Punishment of Crimes against Humanity, it had various goals in mind. One central goal was to craft a balanced text that would prompt States to do better in adopting national laws and national jurisdiction concerning crimes against humanity (and in developing inter-State cooperation on the issue), while at the same time respecting certain limits on what States would likely accept in a new convention.

Indeed, from one vantage point, the commission could have adopted a far-reaching treaty text, loaded up with all sorts of “wish list” items, so as to articulate highly progressive legal policy, yet knowing that States likely would not adopt such an instrument. From another vantage point, the commission could have pursued simply a statement of “guidelines,” “principles,” or “conclusions” that would be easy for the commission alone to adopt, but leading to an outcome that would not directly bind States to legal rules.

Instead, the commission steered a different path, aiming for the harder outcome of a legally binding treaty, but one based on draft articles that States might embrace as practical, feasible, and valuable. Various consequences of this path may be seen in the ILC’s 2019 draft articles and their commentary.

First, the draft articles are focused on a clear gap in international criminal law, which is the lack of any convention on crimes against humanity (unlike for genocide or war crimes) addressing national laws/jurisdiction and inter-State cooperation. If States wish to continue advancing international law in this area, adopting a treaty on this issue is one way to do so.

Second, the draft articles are limited to the most important areas where improvement in State conduct is needed. The 15 draft articles consist of straight-forward, unadorned provisions that succinctly target discrete areas of prevention, punishment, extradition, mutual legal assistance, and dispute settlement.

Third, the draft articles rely extensively on provisions that States have accepted previously in widely-adhered-to treaties, such as the 1984 Convention against Torture and the 2003 Convention against Corruption. Every provision in the draft articles has a direct lineage in existing treaties, as may be seen in the ILC’s commentary. As such, there is nothing unusual about the ILC’s text; the only thing new is the application of such provisions to crimes against humanity.

Fourth, the draft articles are not dependent upon a State’s adherence to any other treaty. For example, States Parties to the Rome Statute could join a convention based on the draft articles, as doing so would enhance complementarity in the functioning of the International Criminal Court (ICC). Yet States that are not parties to the Rome Statute equally could join a convention based on the draft articles, since the draft articles have no direct connection to the ICC.  Similarly, mutual legal assistance provisions in the ILC’s draft articles are crafted so as to allow States to use whatever mutual legal assistance treaties (MLATs) they already have vis-à-vis other States; only if no such MLAT exists do the detailed provisions of the ILC’s draft annex on mutual legal assistance come into play (draft article 14, para. 8).

Fifth, particularly where the draft articles touch upon sensitive areas, the text was very carefully drafted:

  • Do States have an obligation to prevent crimes against humanity? Yes, but only “in conformity with international law” (draft article 4), meaning that international rules on the use of force are not affected.
  • Should the draft articles address immunity or amnesties? No, because treaties of this kind do not do so. But the draft articles do include a provision that a person’s official position is not a ground for excluding criminal responsibility (draft article 6, para. 5), meaning that if no immunity or amnesty exists, responsibility can exist even for senior leaders.
  • Should the draft articles address corporate liability? Yes, but only in a way that recognizes how States differ considerably as to whether legal persons can commit crimes, as opposed to being fined or dissolved for the criminal behavior of its officers (draft article 6, para. 8).
  • Is there an obligation to extradite? No, since some States do not wish to extradite persons to certain other States, but there is an obligation to submit to prosecution an alleged offender found in a State’s territory; if that State wishes to extradite, there are provisions to ease that process (draft article 13).

Whether the ILC struck the right balance remains to be seen. The first step is for States to decide whether to move forward in launching a negotiation process so as to amend as necessary and transform the draft articles into a convention: for the ILC to have crafted draft articles largely acceptable to States is helpful in that regard.

Yet even if that step is taken, and a convention is adopted, whether the right balance was struck will still be tested. For the ultimate goal is not to just have a convention, nor even to have widespread adherence to it, but to have a convention that meaningfully and effectively increases the prevention and punishment of atrocities.

IMAGE: Syrian defendant Eyad al-Gharib, accused of crimes against humanity in the first trial of its kind to emerge from the Syrian conflict, arrives to hear his verdict in the courtroom on February 24, 2021 in Koblenz, western Germany. Al-Gharib, 44, a former Syrian intelligence service agent, was sentenced to four and a half years in jail for complicity in crimes against humanity in the first court case over state-sponsored torture by the Syrian government. (Photo by THOMAS LOHNES/AFP via Getty Images)