CYIL vol. 10 (2019)

PAVEL ŠTURMA CYIL 10 ȍ2019Ȏ Draft article 4 elaborates on the obligation of prevention set forth in general terms in draft article 3. Each State “undertakes to prevent crimes against humanity, in conformity with international law”, through effective legislative, administrative, judicial or other appropriate preventive measures, and cooperation with other States, relevant intergovernmental and other organizations. 11 In addition, draft article 5 ( Non-refoulement ) provides that no State shall expel, return, surrender, or extradite a person to another State where there are substantial grounds for believing that such a person would be in danger of being subjected to a crime against humanity. 12 The following articles reflect the purpose of the topic, which is a project of a global convention that could harmonize national laws and promote more effective inter-State cooperation on the prevention, investigation, and prosecution of crimes against humanity. Draft article 6 (on criminalization) sets forth various measures that each State must take to ensure that crimes against humanity constitute offences under its national law. 13 In turn, draft article 7 provides that each State must establish jurisdiction over the offences covered by the present draft articles when the crime occurs in any territory under its jurisdiction, has been committed by one of its nationals, or when the offender is present in its territory and it does not extradite or surrender the offender. This draft article also includes, as optional, the principle of passive personality and does not exclude the exercise of criminal jurisdiction by a State on other grounds in accordance with its national law. 14 Draft article 8 requires that each State “ensure that its competent authorities proceed to a prompt, thorough, and impartial investigation whenever there is reasonable grounds to believe that acts constituting crimes against humanity have been or are being committed in any territory under its jurisdiction.” 15 Draft article 9 provides for certain preliminary measures to be taken by the State in the territory under whose jurisdiction an alleged offender is present. Draft article 10 is an enlarged clause on Aut dedere aut judicare , with the third option of surrender to competent international criminal court or tribunal. Draft article 11 obliges the State to accord fair treatment to an alleged offender. Draft article 12 addresses the rights of victims, witnesses, and other persons affected by the commission of a crime against humanity. Next, draft articles 13 and 14 deal respectively with extradition and mutual legal assistance. These are quite long, detailed provisions modelled on the recent multilateral criminal law conventions. Moreover, the draft annex to article 14, paragraph 8, includes detailed procedural provisions on requests to be used if the States in question are not bound by a treaty of mutual legal assistance. 16 Finally, the idea that the present draft articles should become convention is reflected in draft article 15 (Settlement of disputes). The text of paragraph was modelled on article 66, para. 1, of the United Nations Convention against Corruption (2003), referring to settlement of disputes through negotiation. Paragraph 2 provides that a dispute between two or more States “that is not settled through negotiation, shall, at the request of one of those States,

11 Ibid., p. 34. 12 Ibid., p. 42. 13 Ibid., p. 46. 14 Ibid., p. 65. 15 Ibid., p. 68. 16 Ibid., pp. 103, 113.

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