(Editor’s Note: This is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity, due to be considered in discussions now scheduled to resume on Oct. 13 in the Sixth Committee, the U.N. General Assembly’s primary forum for discussion of legal questions.)
A Convention on the Prevention and Punishment of Crimes against Humanity is a must and would fill many gaps in international criminal law that other authors in this series have noted. When the International Law Commission (ILC) first announced in 2014 its decision to start drafting articles for such a convention, my organization, Amnesty International, welcomed it as an opportunity to combat impunity for horrific crimes.
The draft convention adopted by the ILC in 2019 and now under consideration in the United Nations General Assembly’s Sixth Committee contains many laudable provisions that deserve States’ support. Yet, the draft convention is silent on some fundamental legal issues, and some clauses set out only the lowest common denominator.
Among the most welcome provisions thus far: The obligation to extradite or prosecute (aut dedere aut judicare) any person suspected of criminal responsibility for a crime against humanity and found in any territory under a State party’s jurisdiction (Article 10); the non-applicability of statutory limitations (Article 6(6)); the obligation not to return or extradite a person to another State where there are substantial grounds for believing that they would be in danger of being subjected to a crime against humanity (‘non-refoulement’) (Article 5); the right of any foreign national in custody or detention to consular assistance (Article 11(2)); a definition of the responsibility of commanders and other superiors that improves on the definition in the Rome Statute of the International Criminal Court (ICC) (Article 6(3)); and a key recall in the Preamble that the prohibition of crimes against humanity is a peremptory norm of general international law (jus cogens), which is in line with previous ILC statements.
Position on Amnesties
Still, a number of changes would make the convention a truly effective tool against impunity. These are not only based on a progressive interpretation of international law but also grounded in practical experience gathered during several decades of Amnesty International’s work where crimes against humanity and other crimes under international law have been widely committed by State and non-State actors.
For example, there are good reasons to believe that the prohibition of amnesties for those suspected of criminal responsibility for crimes against humanity is nowadays a rule under customary international law. The International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), the Inter-American Court of Human Rights (IACtHR), the European Court of Human Rights (ECtHR), and the African Commission on Human and Peoples’ Rights (ACHPR) have all repeatedly found that the non-applicability of amnesties to crimes against humanity and other crimes under international law is either a rule under customary international law or, moreover, a legal consequence arising out the jus cogens character of the prohibition of crimes against humanity.
Similarly, when the Lomé Agreement — the peace agreement among the parties to the armed conflict in Sierra Leone — was signed in 1999, the representative of the U.N. Secretary-General was instructed to append the following statement: “The United Nations holds the understanding that the amnesty and pardon in article IX of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of humanitarian law.” Such a statement was later codified in the Statute of the Special Court for Sierra Leone and accepted by the Sierra Leonean authorities. The same situation occurred in 2003 in Cambodia, where the authorities consented that they “shall not request an amnesty or pardon for any persons who may be investigated for or convicted of crimes referred to in the present Agreement [genocide, crimes against humanity, and grave breaches of the Geneva Conventions].”
This same view has repeatedly been held by several U.N. treaty bodies, such as the Human Rights Committee (HRC), the Committee against Torture (CAT), the Committee on the Elimination of Discrimination against Women (CEDAW), and the Committee on Enforced Disappearances (CED). Former U.N. Special Rapporteur on Torture Sir Nigel Rodley and, recently, the U.N. special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence have both agreed on the customary character of the prohibition of amnesties.
In addition, the International Committee of the Red Cross (ICRC), in its study on customary international humanitarian law, has also reached the conclusion that the prohibition of amnesties for war crimes and crimes against humanity is a rule under customary international law (Rule 159). As explained in detail, the national law and case law in many States where crimes against humanity were committed in the past now explicitly prohibit amnesties for these and for other crimes under international law, reflecting an increasing body of opinio juris.
It is disappointing that the ILC, whose object is “the promotion of the progressive development of international law and its codification,” has kept silent on the fundamental issue of amnesties. It only addressed the question through a brief and rather vague passage in the commentary. States should revisit this question.
Likewise, if States are to adopt a strong instrument containing the most protective provisions that the community of States should aspire to (and not a minimum common denominator acceptable to all States), the following clauses should be considered (they are part of the Amnesty International’s 17-Point Program for a Convention on Crimes against Humanity):
- The definition of the crimes against humanity of enforced disappearance and persecution should be amended, since the draft convention shall be applied solely by States parties and there is no need to include any jurisdictional threshold that the Rome Statute contains for the ICC;
- The convention should contain a provision similar to that in Article 27(2) of the Rome Statute of the ICC, so as to prevent any personal immunity (immunity ratione personae) to apply to crimes against humanity;
- Nothing in the convention must prejudice the investigation, trial and punishment of any person for any act which, at the time of its commission, was a crime against humanity under general principles of international law. The new convention may contain an explicit provision to this effect, along the lines of Article 15(2) of the International Covenant on Civil and Political Rights;
- There is agreement that statutory limitations do not apply to genocide, crimes against humanity and war crimes. They also should not apply to criminal or civil proceedings in which victims of crimes against humanity seek full reparation;
- The convention must ensure suspects and accused the right to a fair trial in accordance with the highest standards of international law, during all stages of proceedings. Draft Article 11 fails to prescribe the necessary fair trial protections that are reflected in the Rome Statute’s Articles 55 (Rights of persons during an investigation) and 67 (Rights of the accused);
- Any person suspected of criminal responsibility for crimes against humanity must be tried only in the competent jurisdictions of ordinary, civilian courts in each State, to the exclusion of military jurisdictions;
- The convention should provide that no reservation to its text is permitted, as provided by Article 120 of the Rome Statute;
- As provided by customary international law and reflected in Article 29 of the Vienna Convention on the Law of Treaties (VCLT), the new convention should incorporate a provision specifying that it shall be binding upon each party in respect of all places under the jurisdiction of the State and its various components (federal states clause).
In sum, there is an urgent need to codify crimes against humanity as criminal under international law. The ILC draft convention provides an excellent basis for States’ discussions. But it is in States’ hands to choose to adopt a treaty that is an effective and potent tool against impunity, rather than opting for a minimal standard that risks continuing to provide an easy escape for perpetrators.