CYIL 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ the other hand, the Netherlands (one of the authors of the joint initiative described above) generally supported drafting a new convention but was of the view that the issue of the definiton of crimes against humanity was to a large extent already addressed in the Rome Statute and that the new initiative should focus on improving the operational capacity to prosecute such crimes at the domestic level and on the regulation of interstate cooperation (extradition andmutual legal assistance) with regard to the wider range of crimes, including genocide and war crimes. The Netherlands referred to the initiative (described above) of the Netherlands, Argentina, Belgium, Senegal and Slovenia to open negotiations for a multilateral treaty on the domestic prosecution, mutual legal assistance and extradition concerning atrocity crimes. 28 Support for this initiative (to elaborate a multilateral treaty with wider scope covering all relevant “international atrocity crimes”) was expressed also by Ireland, which was of the view that “the Commission’s work on the topic of crimes against humanity should not detract from that initiative.” 29 Some other delegations ( i.a. Austria and the Czech Republic) also mentioned that the Commission, in its work on the topic “Crimes against humanity”, should take into account the above mentioned joint intergovernmental initiative. It is worth noting that the International Law Commission itself mentioned, in its final report on the topic “The obligation to extradite or prosecute (aut dedere aut judicare) ” (2014), that the gaps in the current international legal regime in this area are wider and do not concern only the crimes against humanity. The Commission observed that “… there are important gaps in the present conventional regime governing the obligation to extradite or prosecute which may need to be closed. Notably, there is a lack of international conventions with this obligation in relation to most crimes against humanity, war crimes other than grave breaches, and war crimes in non international armed conflict. In relation to genocide, the international cooperation regime could be strengthened beyond the rudimentary regime under the Convention for the Prevention and Punishment of the Crime of Genocide of 1948…”. 30 Some authors representing international law doctrine came to similar recommendations concerning the preparation of a treaty providing for legal cooperation and an aut dedere aut judicare obligation in respect of all “the core international crimes”. 31 concerning obligations relating to interstate cooperation was not particular to crimes against humanity and applied to all the serious crimes…”). 30 ILC, Report on the work of its sixty-sixth session (2014), doc. A/69/10, pp. 147-8 and 154-6. 31 See Miša Zgonec-Rožej and Joanne Foakes, International Criminals: Extradite or Prosecute?, Chatham House briefing paper, July 2013, p. 16 (“Rather than looking to customary international law to fill the gap, one option might be for the ILC to recommend to states the negotiation and conclusion of a treaty providing an aut dedere aut judicare obligation in respect of the core international crimes. As noted, there is no such treaty obligation for any of these crimes other than for grave breaches in international armed conflict.” …); see futher F. Lafontaine, Universal Jurisdiction – the Realistic Utopia, Journal 28 Doc. A/C.6/69/SR.20, paras. 15-17. 29 Doc. A/C.6/69/SR.19, para. 177.

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