CYIL 2015

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES do not contain any provisions on the liability of legal persons; these provisions are also absent , i.a. , from the International Convention for the Suppression of Terrorist Bombings (1997), the International Convention for the Suppression of Acts of Nuclear Terrorism (2005) or the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (1999). It seems that international instruments that require the establishment of liability of legal persons are those which penalize more “abstract”, “financial” or “organizational” crimes, i.e. crimes in which a private legal person may substantially participate (and, perhaps, with regard to which even civil or administrative liability of legal persons appears to be adequate). It will be desirable to assess into which of the two groups of criminal law conventions mentioned above a possible future convention on crimes against humanity (or crimes under international law) should belong. At the same time, it may be also relevant to study this issue in relation to the above mentioned different interpretations of the “organizational policy” element contained in the definition of crimes against humanity under Article 7 of the Rome Statute. The Proposed Convention also contains quite elaborate provisions on prevention of crimes against humanity. 57 The preventative measures envisaged in the Proposed Convention include the obligation to prohibit national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence; the possibility to call upon the competent organs of the United Nations or regional organisations to take actions, in accordance with the Charter of the United Nations, for the prevention and punishment of crimes against humanity; the obligation to develop educational and informational programmes including the training of law enforcement officers, military personnel, or other public officials; the protection of “whistle-blowers”; and the prohibition and irrelevance of orders or instructions prescribing, authorizing, or encouraging crimes against humanity. Similar, but a bit less elaborate provisions on prevention are also contained in the Convention against Torture and Enforced Disappearance Convention. 58 The general obligation to prevent genocide is provided for in Article 1 of the Genocide Convention (“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”). It is worth noting that even this very general provision in the Genocide Convention was intepreted by the International Court of Justice 57 Article 8, paragraphs 12 to 16 of the Proposed Convention. 58 See above all Articles 2, 10, 11 and 16 of the Convention against Torture and Articles 12, 22, 23 and 25 of the Enforced Disappearance Convention. The Convention against Torture [Article 2(1)] formulates the general preventive obligation as follows: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” As summarized by the Commission’s Special Rapporteur, this obligation would normally oblige the State party i.a. to adopt laws and policies necessary to establish awareness of relevant crimes and keep these laws and policies under constant review, to educate governmental officials as to the obligations under the relevant convention and to develop training programmes for police, military and other relevant personnel; First report, op. cit. sub 9, p. 55.

307