141 / 464
127
JUS COGENS
AND THE QUESTION OF CRITERIA FOR ITS DETERMINATION
(sub i) enforced disappearance of persons; and, finally, the
Convention on Crime of
Apartheid
(New York, 1973)
56
for (sub j) the crime of apartheid. In other cases stated
by Art. 7(1) of the Rome Statute of the ICC the available means of interpretation are
collocation and the single terms used in the given Article. These interpretative means
are established in the same Article 7(2).
57
In a short time there will be a significant enrichment of the concerned issue. In
fact, the UN International Law Commission (ILC) in 2014 added the topic of “crimes
against humanity” to its active agenda and decided to appoint Sean D. Murphy (US)
as Special Rapporteur for the topic. His intention is to achieve conclusion of the
Convention on the Prevention and Punishment of Crimes against Humanity
.
58
With respect to this intention, there are several key elements to be considered,
among other things, in order to “define the offence of ‘crimes against humanity’
for purposes of the Convention as it is defined in Article 7 of the Rome Statute.”
59
Nevertheless, there is a principal difference. Whereas the counterpart
Convention on
the Prevention and Punishment of the Crime of Genocide
(1948) has, since its entry into
force in 1951, produced the stabilization of corresponding customary law, as stated
above (see 2. 2. 1. Genocide), the
Crimes against Humanity Convention
could be only
the codification of an already developed customary norm. Let us hope that the ILC
topic of Crimes against Humanity will respect this concerned development.
There is also a recent application issue which targets a concrete State, North Korea.
This is given by a General Assembly resolution at the end 2014 called
Situation of
human rights in the Democratic People’s Republic of Korea
(DPRK), condemning the
systematic, widespread and gross violations of human rights in the DPRK, including
those that amount to crimes against humanity.
60
The resolution called on the Security
Council to consider the recommendations of the
Commission of Inquiry
established by
the
Human Rights Council
, including an ICC referral.
61
Security Council 22. 12. 2014,
56
For text (full name)
International Convention on the Suppression and Punishment of the Crime of Apartheid
(New York, 1973), UNTS vol. 1015, p. 243.
57
Article 7(2) – For the purpose of paragraph 1: see e.g. – (d) ‘Deportation or forcible transfer of
population’ means (…); (g) ‘Persecution’ means (...) ; and so on.
58
ILC Report on the work of its sixty-fifth session, 2013,
Annex B,
Crimes against humanity (Sean D.
Murphy), p. 141.
59
Ibid. (note 58), p. 143.
60
See A/RES/69/188 (18 December 2014); 116 in favor, 20 against, 53 abstentions.
61
According to the said resolution, its para 8: “Decides to submit the report of the commission of
inquiry to the Security Council, and encourages the Council to consider the relevant conclusions and
recommendations of the commission and take appropriate action to ensure accountability, including
through consideration of referral of the situation in the DPRK to the ICC and consideration of the
scope for effective targeted sanctions against those who appear to be most responsible for acts that
the commission has said may constitute crimes against humanity.”