CYIL 2015

THE WORK OF THE INTERNATIONAL LAW COMMISSION IN 2015, BUSINESS AS USUAL? The Special Rapporteur also indicated that a realistic aim would be to complete a first reading of the draft conclusions and commentaries by the end of the sixty-eighth session (2016). 13 2.3 Crimes against humanity Since the ILC decided, in 2014, to include in its programme the topic Crimes against humanity, this year it considered the first report of the Special Rapporteur Sean Murphy, 14 which contained, inter alia , two draft articles relating to the prevention and punishment of crimes against humanity and to the definition of crimes against humanity. Following the debate in Plenary, the Commission decided to refer the draft articles to the Drafting Committee. Upon consideration of the report of the Drafting Committee, the ILC provisionally adopted four draft articles with commentaries. 15 It appears that the debate in the Drafting Committee was extensive and led to redrafting of the original proposals into a larger number of draft articles. According to draft article 1 (Scope), “the present draft articles apply to the prevention of crimes against humanity”. 16 Draft article 2 (General obligation) sets out that “crimes against humanity, whether or not committed in time of armed conflict, are crimes under international law which States undertake to prevent and punish.” 17 As to the draft article 3, which is the longest provision, it provides for a definition of “crime against humanity”, taken over verbatim from the text of Article 7 of the Rome Statute of the International Criminal Court, except for three minor changes (omission of references to the ICC). Paragraph 4 is a “without prejudice” clause which indicates that the present draft article does not affect “any broader definition provided for in any international instrument or national law”. 18 Finally, draft article 4, para. 1, sets forth for each State an obligation of prevention with respect to crimes against humanity, including through effective legislative, administrative, judicial or other preventive measures in any territory under its jurisdiction or control; and cooperationwith other States, relevant intergovernmental organizations, and, as appropriate, other organizations. In addition, draft article 4, para. 2, indicates that “no exceptional circumstances whatsoever, such as an armed conflict, internal political instability or other public emergency, may be invoked as a justification of

in the Palais des Nations, Geneva on 4 May 2015, with the participation of a number of the ILC’s members. 13 See doc. A/CN.4/L.859 (2015), p. 11, § 50.

14 See doc. A/CN.4/680 (2015). 15 See doc. A/CN.4/L.860 (2015). 16 See doc. A/CN.4/L.860/Add.1 (2015), p. 2. 17 Ibid ., p. 3. 18 Ibid ., pp. 6-8.

379