SCL Lecture "Inside the International Law Commission: Towards a Convention on Crimes Against Humanity"

Published 18 December 2015

On 16 December 2015, the last Supranational Criminal Law Lecture of the year was held at the T.M.C. Asser Instituut. Prof. dr. Sean D. Murphy gave a presentation on the International Law Commission’s work on a convention on crimes against humanity. Murphy is the Patricia Roberts Harris Research Professor of Law at the George Washington University Law School in Washington, D.C., where he teaches international law and U.S. foreign relations law. He is also a Member of the U.N. International Law Commission (ILC), where he serves as Special Rapporteur for crimes against humanity (CAH).

He started out by briefly introducing the ILC and its functions, describing it as a “legal think-tank” that is tasked with the codification and progressive development of international law. Because international law is often unsettled, much of the ILC’s work aims to develop international law by adopting draft articles that may later be transposed into treaties. The ILC focusses on the development of a number of key areas in international law, of which Prof. Murphy mentioned the protection of persons in event of disasters and guidelines on the identification of customary international law as a few examples.

He then focused on the topic of CAH, outlining the process towards the adoption of draft articles and the potential transposition into a treaty while also touching on substantive legal issues. First, a topic needs to be adopted by the ILC. Aspiring members of the ILC can propose topics to be adopted by the ILC in their campaign to be elected. Prof. Murphy proposed the topic of CAH, and after a long process the topic was adopted in 2014. One critical issue was the usefulness of a convention on CAH in relation to the Rome Statute. Prof. Murphy argued that the Rome Statute deals extensively with the vertical relationship between states and courts, but says little about the horizontal relationships between states. This project on CAH will deal with such relationships, and thereby address issues of, inter alia, extradition from one state to another and mutual legal assistance.

After the adoption of the topic, a first report was prepared that led to four proposed draft articles. The first article deals with the scope: it applies to the prevention (and thereby goes further than the Rome Statute) and punishment of CAH. The second provides a general obligation for states to prevent and punish CAH. The third defines CAH in a way similar to the Rome Statute, and affirms that this definition is without prejudice to any broader definition provided for in other instruments. Finally, the fourth proposed article deals specifically with the prevention of CAH. It obliges states not to commit such crimes “through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law”. If it does commit such acts, the state incurs responsibility. Furthermore, states have a due diligence obligation “to employ the means at their disposal ... to prevent persons or groups not directly under their authority from committing” such crimes.

The ILC is now working on a second report for six new draft articles, dealing with: (1) the obligation of states to adopt a statute that criminalizes CAH, (2) the exercise of jurisdiction, (3) a call on states to investigate situations where CAH may be occurring, (4) the obligation to investigate a possible offender, (5) an aut dedere aut judicare obligation, and (6) the fair treatment of suspects. A third report could possibly address issues of extradition and mutual legal assistance. After the project is done, the ILC needs to decide in what form it will propose the draft articles to the General Assembly. It may well recommend it as a draft convention, but even if it does so, it is for the General Assembly to decide what to do with that recommendation. Prof. Murphy concluded his lecture by stressing the importance of such a convention, describing it as “the next generation” of legal tools to deal effectively with crimes against humanity.