CYIL 2015

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES several States have suggested that work on this topic should complement rather than overlap with existing legal regimes”, the draft convention, which should be prepared by the Commission, “would not address other serious crimes, such as genocide or war crimes, which are already the subject of widely-adhered-to global treaties relating to their prevention and punishment”, but would focus “on the most prominent gap in such regimes, where the need for a new instrument appears the greatest”, that is on crimes against humanity. However, the Special Rapporteur notes that “the Commission, of course, remains open to the views of States and others as it proceeds with this topic, and ultimately it will be for States to decide whether the scope of the Commission’s work is optimal”. 24 In the debate within the Sixth Committee in 2013 and 2014, many delegations, including the Czech Republic, 25 supported adding the topic of crimes against humanity to the Commission’s agenda (while stressing that particular attention should be paid to the relationship of a possible new convention to existing international legal regimes, especially the Rome Statute). 26 On the other hand, some states expressed doubts whether the topic should be included in the agenda of the Commission and whether a convention on this topic is needed (these delegations mainly questioned whether there exists a lacuna in the international legal framework concerning the crimes against humanity, having regard to the existence of the Rome Statute). 27 On 24 First report on crimes against humanity, op. cit. sub 9, pp. 7-8. 25 In its remark, the Czech Republic expressed an expectation that, in discussing this newly included topic, the Commission will reflect and build on the current legal framework, including the Rome Statute, and its previous work on related topics, and “that the Commission would take into account significant initiatives introduced in other governmental and non-governmental forums, namely a proposal by the Governments of Argentina, Belgium, the Netherlands, Senegal and Slovenia to elaborate a multilateral treaty for mutual legal assistance and extradition in domestic prosecution of atrocity crimes, as well as the Crimes against Humanity Initiative of the Whitney R. Harris World Law Institute.”; in: statement of the Czech Republic to the Report of the International Law Commission on the work of its sixty ninth session (agenda item 78), topic “Crimes against humanity”, 31 October 2014 (on file with the author); see also UN doc. A/C.6/69/SR.23, 24 November 2014, p. 9. 26 First report, op. cit. sub 9, pp. 8-9. 27 France (doc. A/C.6/68/SR.19, para. 106: “… Her delegation wondered whether a convention on the subject was really necessary. For the time being, it seemed preferable to encourage universalization of the Rome Statute and the effectiveness of existing norms, which might well not favour the drafting of new sectoral norms. …  T  he question could well arise as to the compatibility of the obligations that would derive from any such convention with those imposed by existing conventions, which was why the urgency of work on the subject was questionable.”); Russian Federation (doc. A/C.6/68/SR.19, para. 56: “Concerning the topic of crimes against humanity, customary international law provided a sufficiently clear understanding of what constituted such a crime. That understanding was reflected in the Charter and in the Judgment of the Nuremberg Tribunal and had been confirmed by the General Assembly in its resolution 95 (I) …”.); South Africa (doc. A/C.6/68/SR.18, paras. 51-58: “… the Rome Statute offered a sufficient legal basis for the criminalization of crimes against humanity and provided an adequate framework for Member States, including South Africa, to exercise criminal jurisdiction over crimes against humanity …”; “… the deficiency identified in the Rome Statute

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