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Parties to the Rome Statute of the Internationbal Criminal Court” and “would most
appropriately be discussed in the universal forum of the United Nations”; however
“the possibility of organizing a diplomatic conference to finalize the negotiations
of the proposed instrument could also be considered … with the aim of universal
adoption” (the launching of the negotiations should be decided by the supporting
countries in the course of 2015).
21
Thus, the rejection within the CCPCJ does not
mean that this initiative will not prove viable within a different framework (and it is
clear that at least the States Parties to the Rome Statute should share the same view
on the basic principles of the initiative).
4. The work of the International Law Commission on this topic
In 2014, the International Law Commission included in its agenda the new
topic “Crimes against Humanity”
and appointed Mr. Sean D. Murphy as Special
Rapporteur. In the words of a Special Rapporteur, “a global convention on prevention,
punishment and interstate cooperation with respect to crimes against humanity appears
to be a key missing piece in the current framework of … international humanitarian
law, international criminal law and international human rights law.”
22
According to
the syllabus of the topic, prepared by the Special Rapporteur and annexed to the
2013 report of the Commission, the outcome of discussions on this topic should
be: the preparation of draft articles that might serve as the basis for an international
convention on crimes against humanity and enhancing the complementarity system of
the Rome Statute. Furthermore, it should promote the adoption and harmonization
of national laws defining the crimes against humanity, provide the basis for more
effective interstate cooperation (not addressed by the Rome Statute) on prevention,
investigation, prosecution, punishment and extradition (on the basis of the principle
aut dedere aut iudicare
when the alleged offender is present on the territory of the State
Party) and could also contain provisions obligating States to prevent crimes against
humanity.
23
What are other suggested main features of the draft articles, as envisaged
in this year‘s First report by the Special Rapporteur? First of all, the proposed draft
articles should use the exact same definition of crimes against humanity as appears
in Article 7 of the Rome Statute, the main aim being to complement (and to avoid
any conflicts with) the Rome Statute and other existing international regimes. The
Special Rapporteur is aware of the initiatives, such as the one of Argentina, Belgium,
The Netherlands, Slovenia and Senegal, to create not only a legal framework for
cooperation in the prosecution of crimes against humanity, but also to update and
supplement the existing treaties defining the crime of genocide and war crimes. In
this regard, the Special Rapporteur suggests, however, that, “bearing in mind that
21
Ibid
., p. 4.
22
First report on crimes against humanity,
op. cit.
sub 9, p. 6.
23
International Law Commission, Report on the work of its sixty-fifth session (6 May to 7 June and
8 July to 9 August 2013), doc. A/68/10, Annex B, p. 140
et seq.