Human Rights Watch Recommendations on the International Law Commission’s Draft Articles on Prevention and Punishment of Crimes Against Humanity

Introduction 

Human Rights Watch welcomes the International Law Commission’s Draft Articles on Prevention and Punishment of Crimes Against Humanity, submitted to the UN General Assembly in 2019 (the “Draft Articles”), which could become the basis of a convention on crimes against humanity.

The Draft Articles constitute a valuable starting point for negotiation of a new treaty. There are numerous significant and positive provisions in the Draft Articles, including the obligation on states to prevent and punish crimes against humanity, to enact domestic legislation to prevent crimes against humanity, and the requirement to extradite or prosecute alleged offenders, among others.

There are also areas in which the Draft Articles could be improved. In this document, Human Rights Watch recommends seven proposed changes to the current text, including revisions to the existing definitions of the crimes of persecution, enforced disappearance, and forced pregnancy, and adding new provisions prohibiting amnesties for crimes against humanity, prohibiting reservations to the treaty, establishing a treaty body monitoring mechanism, and prohibiting assertion of immunities against prosecution for crimes against humanity. Human Rights Watch also recommends retaining the language in the Draft Articles that update and strength of the language of the Rome Statute, particularly the command responsibility provisions and removal of the limiting definition of gender.

Recommendations 

1. Remove the limitation on the definition of the crime against humanity of persecution

Human Rights Watch recommends removal of the limitation in draft article 2(1)(h) that provides that persecution is only a crime when committed in connection with any other crime listed in the statute.[1] This limitation on this crime was introduced in the Rome Statute of the International Criminal Court, which provides that the crime against of humanity of persecution can only be committed in connection with other crimes under the jurisdiction of the International Criminal Court.[2] However, the crime of persecution should be a stand-alone offence, like the other crimes in the Draft Articles.

The customary international law definition of the crime against humanity of persecution contains no such limitation.[3] In repeating the limitation on this crime introduced by the Rome Statute, the Draft Articles create a limitation on this crime that addresses the most serious forms of discrimination, that is not imposed on any other crime against humanity.  In fact, the limitation on the crime of persecution is even narrower than in the Rome Statute, which, unlike the Draft Articles, apply persecution to acts committed in connection to war crimes as well as crimes against humanity.

Major precedents in international criminal law prior to the Rome Statute like the 1945 Control Council Law No. 10,[4] the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia,[5] and the 1994 Statute of the International Criminal Tribunal for Rwanda,[6] do not require any additional link or specific connection with other crimes under international law for the crime against humanity of persecution.

Major precedents following the Rome Statute, like the Statute of the Special Court for Sierra Leone,[7] the Law on the Extraordinary Chambers in the Courts of Cambodia,[8] the Kosovo Law on Specialist Chambers and Specialist Prosecutor’s Office,[9] and the Statute of the African Court of Justice and Human Rights (as amended by the Malabo Protocol),[10] do not require any additional connection with other crimes for the crime against humanity of persecution.

The ILC retained the limitation from the Rome Statute because of states’ concern that the definition would otherwise be too broad and include discriminatory practices that would not necessarily amount to crimes against humanity.[11] The ILC asserts that the definition of persecution is not unduly limited because it can still be prosecuted if committed in connection with any “other inhumane acts,” which provides guidance on the nature of persecution by requiring such acts to be similar to the other crimes listed in the definition.[12]

However, the restriction and its justification inappropriately imply that the intentional and severe deprivation of human rights by reason of the identity of a group is not sufficiently serious to be considered an international crime in and of itself.[13]

2. Remove limitation on the definition of the crime against humanity of enforced disappearance

Human Rights Watch recommends the removal of the limitation in draft article 2(2)(i) that provides that enforced disappearance of persons must have occurred “with the intention of removing [the disappeared person] from the protection of the law for a prolonged period of time.”[14] The crime against humanity of enforced disappearance should be revised to match the definition provided in the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED),[15] which contains no such intention or duration requirements.[16]

The ILC appears to have prioritized harmonization between the Draft Articles and the Rome Statute in this provision.[17] The ILC asserts that the “intention” requirement is not that consequential because it may not significantly change what is otherwise required when proving a criminal offense—because the context of a crime against humanity requires an enforced disappearance be conducted pursuant to or in furtherance of a state or organizational policy.[18] The ILC also points to draft article 2(3)[19] which provides that the definitions of crimes against humanity are “without prejudice to any broader definition” in other international or national law, which was included to ensure that the definitions in the Draft Articles would not call into question any broader definitions, including those related to enforced disappearance.[20]

The Draft Articles should include the definition of enforced disappearance that is aligned with the most recent developments in international law, particularly if harmonization of national laws is an objective of the draft articles.[21] The definition in ICPPED reflects the crime as it is currently understood, contains objective elements, in an instrument that focuses specifically on enforced disappearance. Like the ICPPED definition, the Draft Articles should remove the “intention” requirement because there is no reason for why such a precise intention is necessary to consider this conduct as a crime. Further, it would require proof of the perpetrator’s subjective intention which would be difficult to substantiate.[22] The duration requirement should also be removed. If a person has been arrested, detained, or abducted by an authority, and that authority subsequently refuses to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of the person, clearly that person is already outside the protection of the law, whether or not the period has been “prolonged.” Moreover, the initial period of disappearance is often when a disappeared person is most vulnerable and the crime against humanity of enforced disappearance should include this initial period.

3. Remove limitation on the definition of the crime against humanity of forced pregnancy

Human Rights Watch recommends revising the definition of forced pregnancy to remove the caveat on national laws. Forced pregnancy is the only act in the crimes against humanity definition which includes a caveat exempting national laws and is thus arbitrarily differentiated from other acts that constitute crimes against humanity.[23] The ICC Appeals Chamber affirmed in Ongwen that this caveat “does not impose a new element to the crime of forced pregnancy.”

The differential treatment of forced pregnancy in the Rome Statute was the result of a political compromise and has no functional or legal basis.[24] The ILC did not specifically comment on the national laws limitation in the definition of forced pregnancy. Instead, the ILC notes that the definition of crimes against humanity was reproduced verbatim from article 7 of the Rome Statute, other than three changes, one of which is non-substantive change that was made to reflect the difference between the statutes. The second change is that the phrase in Rome Statute article 7(1)(h) that criminalizes acts of persecution when undertaken in connection with “any crime within the jurisdiction of the Court” has not been retained in the persecution definition in the Draft Articles. The third change was to remove the definition of “gender.”[25]

4. Add provision explicitly prohibiting amnesties for crimes against humanity

Human Rights Watch recommends the addition of a provision that explicitly prohibits amnesties for crimes against humanity in national and international judicial proceedings.[26] “Amnesties” means legal measures that have the effect of prospectively barring criminal prosecution, and in some cases civil action, of certain individuals or categories of individuals, or legal measures that retroactively nullify previously established legal liability.[27]

The ILC did not include a prohibition on amnesties in the Draft Articles to be consistent with the approach taken in other treaties addressing crimes, including the Rome Statute.[28] The ILC also notes that it is generally accepted that the granting of amnesty by one state has no direct effect on prosecutions in a different state.[29] Therefore, with respect to the Draft Articles, an amnesty adopted by one state would not bar prosecution by another state with concurrent jurisdiction over the offence.[30]

However, under no circumstances should amnesties be permitted for crimes against humanity, which by definition are horrific crimes of concern to the international community as a whole and violate a peremptory norm of general international law. Failing to include a specific prohibition on general amnesties could run counter to the object and purpose of a future convention because specific cases of impunity could arise that would be contrary to the purpose of punishing and preventing crimes against humanity.[31] Further, a state’s granting of an amnesty for crimes against humanity would conflict with states’ obligations under the Draft Articles to criminalize, investigate, and prosecute crimes against humanity, to comply with their aut dedere aut judicare obligations, and to fulfil its obligations to victims and others.[32]

5. Add provision explicitly prohibiting states from making reservations to the treaty

Human Rights Watch recommends the addition of a provision explicitly prohibiting states from making reservations to the treaty.

The ILC excluded final clauses on matters such as reservations in the Draft Articles in accordance with ILC practice.[33] Now that discussion of the Draft Articles is out of the hands of the ILC and facilitated by states through the UN General Assembly’s Sixth Committee, Human Rights Watch believes a prohibition against reservations should be added to the Draft Articles.

Article 120 of the Rome Statute provides that no reservations may be made to the statute.[34] To ensure consistency with the Rome Statute, the Draft Articles should also prohibit reservations to the treaty. Prohibiting reservations will ensure that all state parties assume the same obligations in repressing crimes against humanity, create certainty about the extent of obligations, and prevent undermining the convention’s integrity and moral authority.

6. Add provisions to establish a treaty body monitoring mechanism

Human Rights Watch recommends that the Draft Articles include the creation of a treaty body monitoring mechanism, with the power to review state compliance and provide guiding interpretations of the treaty. Possible models include bodies such as the committees established in the International Convention for the Protection of All Persons from Enforced Disappearance,[35] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[36] as well as the Sub-Committee on the Prevention of Torture.  Such a mechanism would promote states’ implementation of the treaty and assist with the elaboration and interpretation of the law.  It should require states parties to regularly report to the body, allow for complaints by individuals against state parties, provide for inter-state complaints, and establish a process for inquiries or visits by the treaty body. It should be adequately resourced.

The ILC did not include a treaty body monitoring mechanism in the Draft Articles, but notes that a treaty body monitoring mechanism “might help ensure that states fulfil their commitments under the convention, such as with respect to adoption of national laws, pursuing appropriate preventative measures, engaging in prompt and impartial investigations of alleged offenders, and complying with their aut dedere aut judicare obligation.”[37] The Special Rapporteur has also surveyed existing treaties’ different institutional structures to assist in the monitoring of, implementation of and compliance with the relevant treaty, and the range of procedures they can entail.[38]

7. Add a provision barring persons in official positions from asserting immunities to avoid prosecution under domestic or international law  

Human Rights Watch recommends that the treaty should add a provision requiring states to prohibit immunities due to official position for crimes against humanity under domestic or international law, to ensure that all persons credibly suspected of crimes against humanity can be prosecuted. 

While the Draft Articles require states to ensure that the fact that an offence was committed by a person holding an official position is not ground for excluding criminal responsibility,[39]there is no provision in the Draft Articles barring a state official’s assertion of immunity before a court. Indeed, the ILC provides that “[draft article 6(5)] has no effect on any procedural immunity that a foreign State official may enjoy before a national criminal jurisdiction”[40] and asserts that immunities should be addressed instead by customary international law and a separate treaty on immunities.[41]

While certain international criminal statutes do not include a provision on immunity,[42] others do provide that officials have international criminal responsibility or shall be punished,[43]and treaties establishing international courts and tribunals “typically abrogate immunities of States officials, out of a belief that concerns with respect to prosecutions at the national level are not warranted before courts and tribunals consisting of international prosecutors and judges.”[44] Indeed, the Rome Statute includes an article that provides that immunities do not bar the ICC from exercising jurisdiction.[45]

8. Keep elements in draft that improve the Rome Statute definitions

Human Rights Watch supports the retention of elements and language of the Draft Articles that amount to an updating and strengthening of the language of the Rome Statute.

These are, notably, Draft Article 6(3), which unifies and clarifies the standards of command responsibility for military and civilian commanders, and the removal of the limiting definition of “gender” that was inserted into the Rome Statute.