CYIL 2015

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES prepared in 2010 by the Crimes Against Humanity Initiative (a rule of law project of the Whitney R. Harris World Law Institute). 51 The Proposed Convention retains the Rome Statute definition of crimes against humanity (Article 7 of the Rome Statute) and adds elaborate provisions regulating interstate cooperation (extradition based on the aut dedere aut iudicare principle, mutual legal assistance, transfer of criminal proceedings, rule non bis in idem and non-refoulement , etc. ); it expressly mentions not only individual responsibility but also state responsibility for the commision of crimes against humanity; and it contains provisions on prevention of crimes against humanity, responsibility of legal persons and an institutional mechanism for supervision of the implementation of the Proposed Convention. In May 2014 the Proposed Convention was the subject of discussions at an experts‘ meeting held at Villa Moynier in Geneva, which brought together international justice experts and members of the International Law Commission. 52 As stated above, the Proposed Convention expressly mentions, in addition to individual criminal responsibility (on which the whole regime of international criminal justice is based), also state responsibility for internationally wrongful acts, namely for crimes against humanity. According to Article 1 of the Proposed Convention, “[c]rimes against humanity … constitute crimes under international law for which there is individual criminal responsibility. In addition, states may be held responsible for crimes against humanity pursuant to principles of State responsibility for internationally wrongful acts”. 53 Responsibility of States is also mentioned in Article 26 of the Proposed Convention (the settlement of disputes), which is in this regard inspired by Article 9 of the Genocide Convention. 54 According to the explanatory note to the Proposed Convention, specific reference to State responsibility “underscores the applicability of State responsibility principles to the Proposed Convention” and “acknowledges that crimes against humanity may give rise to the responsibility of States for internationally wrongful acts, should breaches of the Proposed Convention be attributable to a State party in accordance 51 For the text of the Proposed Convention with commentaries and more information on the Crime Against Humanity Initiative see http://law.wustl.edu/harris/crimesagainsthumanity/ (visited on 4 June 2015). 52 For the report from the meeting see supra, op. cit. sub 45. 53 A similar formulation is contained in preambular paragraph 11 of the Proposed Convention (“Recalling that crimes against humanity constitute crimes under international law, which may give rise to the responsibility of States for internationally wrongful acts.”). 54 Article 26 of the Proposed Convention: “Any dispute between two or more States Parties concerning the interpretation or application of the present Convention, including those relating to the responsibility of a State for alleged breaches thereof, … shall be submitted to arbitration …”. The Genocide Convention, in its provision on the settlement of disputes, also refers to the disputes “relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article 3”. However, the structure and the purpose of the Genocide Convention is different from more recent international criminal law instruments regulating international cooperation in prosecuting serious crimes.

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