Saving humanity from crimes

UN Committee revisits the International Law Commission’s Draft articles on Crimes against Humanity for possible codification
United Nations General Assembly Hall. [Image for representational purpose only]
United Nations General Assembly Hall. [Image for representational purpose only]Wikimedia/ Basil D Soufi

The UN General Assembly headquarters reconvenes to discuss the need for a new convention on "Crimes Against Humanity", with countries and delegates debating the potential of such a convention to close gaps in the current international legal framework.

Discussions will continue Tuesday, 11 April, with a focus on the draft articles that have been under consideration for several years. Participants will consider whether the International Law Commission should draw inspiration from existing texts such as the Rome Statute of the International Criminal Court and international conventions addressing genocide and torture.

India and China, along with other countries, have expressed opposition to the draft articles and are demanding modifications to the content and language. The issue of crimes against humanity and their place in international law is a complex one, requiring not only the definition of such crimes but also a debate over the most effective approach to preventing and prosecuting them.

Last month the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin. The court alleges he is responsible for war crimes, and has focused its claims on the unlawful deportation of children from Ukraine to Russia. As a judicial institution, the ICC does not have its own police force or enforcement body; thus, it relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets, and enforcing sentences.

Pedro Comissário Afonso (Mozambique), Chair of the Sixth Committee, noted that the Committee would carry its mandate in two rounds over two years, based on five thematic clusters of provisions.  He introduced the new “interactive format” of deliberations, which would allow delegations, after hearing interventions, to ask for further clarifications and express their views about that statement.

The representative of the European Union, in its capacity as an observer, acknowledges an important normative gap in international treaty law regarding crimes against humanity. She said the International Law Commission draft articles that take inspiration from and replicate provisions on prevention, punishment and inter-State cooperation existing in other treaties, constitute an important basis for an international convention.

Indian delegate participating said that a State with territorial or active personality jurisdiction is best suited for the effective prosecution of crimes against humanity. It is in the interest of justice and the rights of the accused, as well as the interests of victims and other such considerations, that territorial or national jurisdictions should be given primacy. India’s delegate, pointing out that several countries in Africa and Asia, including her country, are not parties to the Rome Statute, said that the draft articles, inspired by the Statute and the Convention on the Prevention and Punishment of the Crime of Genocide, are neither new nor universal.  She said her delegation was not in favour of simply transposing already-existing regimes into a new convention.     

The representative of China said the draft articles proposed by the International Law Commission are not a zero draft for a future convention.  If an international convention is to be concluded in the future, the principles of sovereign equality and non-interference in internal affairs must be included in clear language in the preamble and the articles.  That spirit must be the guiding element throughout the convention.

The Russian delegate noting the significant divergence in the positions both on the content of the draft articles and the International Law Commission’s recommendations said his delegation continues to not see the prospect for the development of a universal international instrument based on those draft articles.

He said, adding that questions of crimes against humanity are also regulated within national legal systems.  The group of countries that refer to alleged shortcomings of legal regulations should focus first and foremost on developing their legislation.  He said it does not see this work as a process of developing a text or a convention. 

Turning to accusations voiced against his country and the so-called arrest warrants of the International Criminal Court, he said the biased, politicized, and non-competent so-called Court once again has proven that it is harmful and flawed.  That Court is a puppet in the hands of the collective West, which will never act against its backers.

The United States delegate recalled his country’s proud history of supporting accountability for those responsible for crimes against humanity, dating back to the instrumental role the United States played in the first prosecution of such crimes in Nuremberg.  That Convention, in many respects, is the primary model for any future convention on the prevention and punishment of crimes against humanity.  However, he suggested that draft article 1 could be clarified in certain respects.  For instance, nothing in the draft articles should be construed to authorize any act of aggression or any other use of force inconsistent with the Charter.  Additionally, it should be made clearer that the draft articles would not modify international humanitarian law, which applies to armed conflict.        

However, the representative of the Gambia, asked the delegates to be united to fight against the crimes against humanity underlining the lack of progress made by the Sixth Committee on the Commission’s finished products, and warned the Member States against getting “lost in loose technical debate”. 

He called on them to dare to be different in their pursuit of the progressive development of international law, as well as the protection and promotion of human rights guiding principles, be it nationally or internationally.

 Also speaking on the issue are representatives of Denmark (also for Finland, Iceland, Norway and Sweden), Latvia (also for Estonia and Lithuania), Egypt, Philippines, Germany, Spain, Czech Republic, Malta, United Kingdom, Iran, Netherlands, Hungary, Portugal, Slovakia, Italy, Türkiye, Australia, Ireland, El Salvador, Israel, Ecuador, Saudi Arabia, Indonesia, Austria, Romania, Japan, United States, Slovenia, Poland, Mexico, Qatar, Bangladesh, South Africa, Sri Lanka, Russian Federation, Belgium, Syria and Lebanon.

Definition of Crime Against Humanity

It is not clear in which context the term “crimes against humanity” was first developed. Some scholars point to the use of this term as early as the late eighteenth and early nineteenth century, particularly in the context of slavery and the slave trade, and to describe atrocities associated with European colonialism in Africa and Asia and elsewhere.

Other scholars point to the declaration issued in 1915 by the Allied governments (France, Great Britain and Russia) condemning the mass killing of Armenians in the Ottoman Empire, to be the origin of the use of the term as the label for a category of international crimes.

Since then, the notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Many States have also criminalized crimes against humanity in their domestic law; others have yet to do so.

Crimes against humanity have not yet been codified in a treaty of international law, unlike genocide and war crimes, although there are efforts to do so. Despite this, the prohibition of crimes against humanity, like the prohibition of genocide, has been considered a peremptory norm of international law, from which no derogation is permitted and which applies to all States.

The 1998 Rome Statute establishing the International Criminal Court (Rome Statute) is the document that reflects the latest consensus among the international community on this matter. It is also the treaty that offers the most extensive list of specific acts that may constitute the crime. However, countries that matter including developed countries have not rectified or accepted the Rome Statutes.

Surinder Singh Oberoi is a regular contributor to Greater Kashmir.

DISCLAIMER: The views and opinions expressed in this article are the personal opinions of the author.

The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.

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