CYIL 2015

297

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES

several States have suggested that work on this topic should complement rather than

overlap with existing legal regimes”, the draft convention, which should be prepared

by the Commission, “would not address other serious crimes, such as genocide or

war crimes, which are already the subject of widely-adhered-to global treaties relating

to their prevention and punishment”, but would focus “on the most prominent gap

in such regimes, where the need for a new instrument appears the greatest”, that

is on crimes against humanity. However, the Special Rapporteur notes that “the

Commission, of course, remains open to the views of States and others as it proceeds

with this topic, and ultimately it will be for States to decide whether the scope of the

Commission’s work is optimal”.

In the debate within the Sixth Committee in 2013 and 2014, many delegations,

including the Czech Republic,

supported adding the topic of crimes against

humanity to the Commission’s agenda (while stressing that particular attention should

be paid to the relationship of a possible new convention to existing international legal

regimes, especially the Rome Statute).

On the other hand, some states expressed

doubts whether the topic should be included in the agenda of the Commission and

whether a convention on this topic is needed (these delegations mainly questioned

whether there exists a lacuna in the international legal framework concerning the

crimes against humanity, having regard to the existence of the Rome Statute).

First report on crimes against humanity,

op. cit.

sub 9, pp. 7-8.

In its remark, the Czech Republic expressed an expectation that, in discussing this newly included topic,

the Commission will reflect and build on the current legal framework, including the Rome Statute,

and its previous work on related topics, and “that the Commission would take into account significant

initiatives introduced in other governmental and non-governmental forums, namely a proposal by the

Governments of Argentina, Belgium, the Netherlands, Senegal and Slovenia to elaborate a multilateral

treaty for mutual legal assistance and extradition in domestic prosecution of atrocity crimes, as well as

the Crimes against Humanity Initiative of the Whitney R. Harris World Law Institute.”; in: statement

of the Czech Republic to the Report of the International Law Commission on the work of its sixty-

ninth session (agenda item 78), topic “Crimes against humanity”, 31 October 2014 (on file with the

author); see also UN doc. A/C.6/69/SR.23, 24 November 2014, p. 9.

First report,

op. cit.

sub 9, pp. 8-9.

France (doc. A/C.6/68/SR.19, para. 106: “… Her delegation wondered whether a convention on the

subject was really necessary. For the time being, it seemed preferable to encourage universalization of

the Rome Statute and the effectiveness of existing norms, which might well not favour the drafting of

new sectoral norms. …

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he question could well arise as to the compatibility of the obligations that

would derive from any such convention with those imposed by existing conventions, which was why

the urgency of work on the subject was questionable.”); Russian Federation (doc. A/C.6/68/SR.19,

para. 56: “Concerning the topic of crimes against humanity, customary international law provided a

sufficiently clear understanding of what constituted such a crime. That understanding was reflected in

the Charter and in the Judgment of the Nuremberg Tribunal and had been confirmed by the General

Assembly in its resolution 95 (I) …”.); South Africa (doc. A/C.6/68/SR.18, paras. 51-58: “… the

Rome Statute offered a sufficient legal basis for the criminalization of crimes against humanity and

provided an adequate framework for Member States, including South Africa, to exercise criminal

jurisdiction over crimes against humanity …”; “… the deficiency identified in the Rome Statute