CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ CRIMES AGAINST HUMANITY, PEREMPTORY NORMS … while the others are still at the early stage of study by the ILC. Therefore, this contribution will provide some brief information on all topics on the programme of the Commission. 2.1 Crimes against humanity This year, the Commission had before it the fourth report of the Special Rapporteur Sean Murphy, 4 as well as comments and observations received from Governments, international organizations, and others. 5 The report addressed the comments and observations made by Governments and others on draft articles adopted on first reading and made recommendations for each draft article. The text adopted and included in chapter IV of the Report of the ILC comprises a draft preamble, 15 draft articles, and a draft annex. The preamble recalls, inter alia , that the prohibition of crimes against humanity is a peremptory norm of general international law ( jus cogens ) and that it is a duty of every State to exercise its criminal jurisdiction with respect to crimes against humanity. Article 1 defines the scope, which is the prevention and punishment of crimes against humanity. Draft article 2 includes the definition of crimes against humanity based on article 7 of the Rome Statute of the International Criminal Court except for three changes. First, the opening phrase of paragraph 1 reads “for the purpose of the present draft articles” (instead of this Statute). Second, the phrase in article 7, para. 1 (h), of the Rome Statute that criminalizes acts of persecution when committed in connection with “any crime within the jurisdiction of the Court” has not been retained in draft article 2. Third, article 7, para. 3, of the Rome Statute on the definition of “gender” has not been retained for draft article 2. 6 Draft article 3 first provides the general obligation of States not to engage in acts that constitute crimes against humanity. Paragraph 2 sets forth that “each State undertakes to prevent and to punish crimes against humanity, which are crimes under international law, whether or not committed in time of armed conflict.” 7 Paragraph 3 makes clear that no exceptional circumstances whatsoever may be invoked as justification for crimes against humanity. The most important and innovative is the first general obligation “not to engage in acts” that is not expressly provided in the 1948 Genocide Convention and the 1984 Convention against Torture. However, the formula is based on the rationale of the ICJ judgment in the Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro). 8 Accordingly, the general obligation has two components. First, States have an obligation not “to commit such acts 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”. 9 Second, States have obligations under international law not to aid or assist, or to direct, control or coerce, another State in the commission of such acts. 10 4 See doc. A/CN.4/725 (2019) and Add.1. 5 See doc. A/CN.4/726 (2019), Add.1 and Add.2. 6 See doc. A/CN.4/L.928/Add.1, p. 10, § 8. 7 Ibid., p. 27. 8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports, 2007 , p. 113, § 166. 9 Ibid., p. 120, § 183. 10 See doc. A/CN.4/L.928/Add.1, p. 29, § 6.

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