On Apr. 1-5 and 11, 2024, the United Nations General Assembly’s Sixth Committee will convene in a second “resumed session” to debate and discuss the International Law Commission’s (ILC) Draft Articles on Prevention and Punishment of Crimes against Humanity (Draft Articles). This session is part of a two-year process initiated by Resolution 77/249 of Nov. 18, 2022, which saw the convening of the first resumed session on Apr. 10-14, 2023. This second resumed session will be an opportunity to continue discussing the direction and content of the Draft Articles in the lead-up to the Sixth Committee’s 79th session in October/November 2024, when States are expected to decide whether to open official negotiations on a Crimes against Humanity Convention.

Among the topics of discussion will be Draft Articles 7 and 10 on the establishment and exercise of domestic criminal jurisdiction over crimes against humanity, and Draft Articles 9 and 13 on the avenues for State-to-State cooperation to address possible competing jurisdictional claims, recently analyzed by Amnesty International (where I am a Legal Advisor) in a briefing published in March 2024. These are crucial provisions as they concern the duty of States to investigate and prosecute crimes against humanity at the national level.

Following existing international law, the ILC has not established a hierarchy among the various bases of jurisdiction in the Draft Articles, meaning no one basis of jurisdiction has priority over the others as a matter of law. Therefore, contrary to some States’ positions, as submitted in December 2023 in preparation of the April 2024 resumed session, the relevant Draft Articles should be retained as they are in a future Crimes against Humanity Convention.

Establishment of Jurisdiction

Draft Article 7(1) provides that States shall establish jurisdiction when crimes against humanity are committed in a territory under their jurisdiction (including on board ships or aircraft registered in that State) (territorial jurisdiction), and when the alleged offender is a national of that State (active personality jurisdiction). It further provides that a State shall establish jurisdiction, albeit “if that State considers it appropriate,” over stateless persons who are “habitually resident” in their territory (also active personality jurisdiction), and when the victim is a national of that State (passive personality jurisdiction).

In addition, Draft Article 7(2) provides that a State “shall also take the necessary measures to establish” jurisdiction in cases where a suspect “is present in any territory under its jurisdiction and it does not extradite or surrender the person” concerned (which some term “conditional universal jurisdiction”). Finally, Draft Article 7(3) “do[es] not exclude the exercise of any criminal jurisdiction established by a State in accordance with its national law” (for example, protective jurisdiction or universal jurisdiction not requiring the suspect’s presence).

One key point is that Draft Article 7 does not indicate that one basis of jurisdiction must be prioritized over another. This means that territorial, active personality, and passive personality jurisdiction, as envisaged under Draft Article 7(1), do not have priority over other bases of jurisdiction envisaged under Draft Article 7(2) and (3).

However, in their comments submitted in December 2023 in preparation of the Sixth Committee’s second resumed session, certain States contended that territorial and active personality jurisdiction should be accorded priority over other bases (Israel, paras. 14-15; Singapore, para. 6; Türkiye, pp. 2, 4; United States, p. 6). Several other States, on the other hand, expressed support for the current text of Draft Article 7 (Austria, pp. 2-3; Belgium, p. 4; Colombia, pp. 7-8; Czech Republic, pp. 3-4; Mexico, p. 3; Nordic Countries, pp. 3-4; European Union, p. 7).

The argument that priority should be given to territorial and active personality jurisdiction is not grounded in existing international law. Draft Article 7, in fact, reflects well-established language and content included in other international treaties addressing crimes (see ILC’s Commentary, p. 85, footnote 419), including the U.N. Convention against Torture (Article 5), the U.N. Enforced Disappearance Convention (Article 9), and the recently-adopted Ljubljana-The Hague Convention (Article 8). None of these treaties establishes a hierarchy among the various bases of jurisdiction.

Domestic case law, academic commentary, and expert opinions confirm this point. For example, in the Eichmann case, Israel’s Supreme Court rejected the claim, expressly made by the defense, that territorial and active personality jurisdiction have priority over other forms of jurisdiction, including universal jurisdiction (para. 12(d)). Similarly, in the more recent Kumar Lama case, the Court of Appeal of England and Wales in the UK stated that:

71(3) … the Convention against Torture does not establish a hierarchy of possible jurisdictions or embody any principle of forum conveniens. While it is correct that, in any given case, it may be more convenient or effective to prosecute in one jurisdiction rather than another, for example because of the availability of evidence, this is no more than a reflection of the circumstances of the particular case.

Similar conclusions have been reached by leading commentators (Nowak and MacArthur, p. 317), an ad hoc expert group set up by the African Union and the European Union (para. 14), and the U.N. Fact-Finding Mission on the Gaza Conflict (Goldstone Report, para. 1849).

In a different vein, some scholars posit that certain bases of jurisdiction, particularly universal jurisdiction, are “subsidiary” to others. In particular, it is argued that priority is to be given to “states with a direct link to the crime” as this “reflects the recognition of a legitimate primary interest of those states that are directly connected to the crime” (Kress, pp. 798-799; see also International Law Institute, para. 3(c)-(d)).

As highlighted by the above-mentioned jurisprudence and other scholars (Lauterpacht, p. 348; van Steenberghe, pp. 1113-1114), however, while a primary exercise of some bases of jurisdiction, particularly territorial jurisdiction, may be intuitive or convenient for practical reasons, such as the availability of evidence and the proximity to witnesses and victims, international law does not prescribe this. Instead, the various available jurisdictional bases are complementary to each other and so designed to maximize the means of accountability for crimes under international law.

Exercise of Jurisdiction

Article 10 of the Draft Articles sets out the principle of prosecute or extradite (aut dedere aut judicare) in the following terms:

The State in the territory under whose jurisdiction the alleged offender is present shall, if it does not extradite or surrender the person to another State or competent international criminal court or tribunal, submit the case to its competent authorities for the purpose of prosecution.

In addition to those States calling to enshrine a formal hierarchy in Draft Article 7, other States argued that the exercise of jurisdiction under Draft Article 10 should be subject to various requirements. In their December 2023 submissions, some States expressed the view that the exercise of jurisdiction by the State which has custody of a perpetrator should be dependent on a prior extradition offer to a State that can assert territorial or active nationality jurisdiction (Saudi Arabia), or that extradition should be granted when such States have made a request, provided they intend to pursue prosecution genuinely (Brazil, paras. 37-38; see also International Law Institute, para. 3(c)-(d)). On the other hand, most of the States which commented on Draft Article 10 expressed their support for the current text of the provision (Argentina, pp. 3-4; Austria, pp. 2-3; Belgium, p. 4; Colombia, pp. 7-8; Czech Republic, pp. 3-4; Mexico, p. 3; Nordic Countries, pp. 3-4; Portugal, pp. 7, 9; European Union, p. 8).

Similarly to Draft Article 7, the text of Draft Article 10 reproduces the content, and partially the language, of equivalent provisions included, among others, in the U.N. Convention against Torture (Article 7), the U.N. Convention against Enforced Disappearance (Article 11) and the Ljubljana-The Hague Convention (Article 14), as well as the Geneva Conventions I-IV (Articles 49, 50, 129 and 146, respectively).

The ILC’s commentary explains that a State’s obligation to “submit the case to its competent authorities for the purpose of prosecution” under Draft Article 10 “… arises whenever the alleged offender is present in the territory of the State party, regardless of whether some other State party seeks extradition” (pp. 92-93; see also here, para. 40). The ILC’s interpretation of the prosecute or extradite principle aligns with the reasoning of the International Court of Justice (ICJ) in the 2012 Belgium v. Senegal case, where the ICJ construed the equivalent obligation under the U.N. Convention against Torture as follows:

94. The Court considers that Article 7, paragraph 1, requires the State concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect

95. However, if the State in whose territory the suspect is present has received a request for extradition in any of the cases envisaged in the provisions of the Convention, it can relieve itself of its obligation to prosecute by acceding to that request. It follows that the choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.

The U.N. Committee against Torture (Guengueng, para. 9.7) and the Court of Appeal in England and Wales (Kumar Lama, para. 71(4)) provided similar interpretations.

The prosecute or extradite principle as set out into Draft Article 10, therefore, puts on States an obligation to submit a case concerning crimes against humanity to their competent authorities for purposes of criminal investigation if a suspected perpetrator is present in a territory under their jurisdiction. This obligation is independent of any extradition offers to or requests by other States. Extradition or surrender is an alternative option left to States to meet their obligation to fight impunity, but not a duty.

The established interpretation of the prosecute or extradite principle, in turn, confirms that no hierarchy exists among the various bases of jurisdiction. If such a hierarchy existed, requesting or granting extradition to a State who can exercise a “priority” jurisdiction would be an obligation, not an option. Under international law, instead, a State in any territory under whose jurisdiction a suspect is found may open a criminal investigation without having to offer, grant, or wait for extradition requests by other States.

State-to-State Cooperation

Draft Articles 9 and 13 envisage avenues of cooperation when multiple States might or intend to initiate criminal proceedings against the same person suspected of crimes against humanity.

In such a case, when a State has taken a suspect into custody, Draft Article 9(3) requires it to “… immediately notify the States [which can exercise territorial, active or passive personality jurisdiction]” of such arrest explaining the reasons warranting it, and to “indicate whether it intends to exercise jurisdiction.” The purpose of this twin obligation to notify both the adoption of custodial measures and the possible initiation of criminal proceedings against a suspect is to allow relevant States to seek extradition. In case extradition is sought, Draft Article 13 provides, among others, that the custodial State must consult with a State making a request before refusing extradition (13(13)), and that it must give “due consideration” specifically to extradition requests by States which can assert territorial jurisdiction (13(12)).

The ILC’s commentary emphasizes that the obligation under Draft Article 13(12) serves practical purposes: “[t]he State where the alleged offence has occurred may be best placed to proceed with a prosecution if it is the principal location of the victims, witnesses or other evidence relating to the offence” (p. 119). In turn, the obligation under Draft Article 13(13) to consult with the requesting State is meant to provide the context for States to enter into good faith consultations about extradition requests. However, the ILC’s commentary also clarifies that “a State may decline to extradite for any reason, so long as it submits the case to its own competent authorities for the purpose of prosecution” (p. 119; see also Ljubljana-The Hague Convention, Article 51(2)(d)).

While no hierarchy exists among the various bases of jurisdiction, and no obligation exists to wait for or comply with extradition requests, Draft Articles 9(3) and 13(12)-(13) provide a reasonable avenue to address cases of potential competing exercises of jurisdiction. In fact, based on the concrete circumstances of a case, these provisions allow all States interested in bringing criminal proceedings against a suspect to have an opportunity to make their case for genuine prosecution. When such cases arise, both the custodial State and the State seeking extradition should cooperate in good faith to realize in full the objectives enshrined in the Preamble of the Draft Articles: “to put an end to impunity for the perpetrators of … crimes [against humanity] and thus to contribute to the prevention of such crimes.”


By not prescribing any hierarchy among the various bases of jurisdiction, the ILC aligned the Draft Articles on Crimes against Humanity with existing international law, particularly as reflected in the U.N. Convention against Torture, the U.N. Enforced Disappearance Convention, the Ljubljana-The Hague Convention, as well as international and domestic jurisprudence.

For this reason, in future negotiations for a Crimes against Humanity Convention, States should retain Draft Article 7 on the establishment of criminal jurisdiction, Draft Article 10 on the prosecute or extradite principle, and Draft Articles 9(3) and 13(12)-(13) on notification of proceedings and consideration of extradition requests, as currently drafted. To weaken or condition in any form the duty of States to investigate and prosecute suspected perpetrators, would run contrary to the spirit and raison d’etre of a future Convention on Crimes against Humanity, namely to more effectively combat impunity for such crimes.

IMAGE: Picture of United Nations Flags, taken Friday May 23, 2008 (via Getty Images).