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the other hand, the Netherlands (one of the authors of the joint initiative described
above) generally supported drafting a new convention but was of the view that
the issue of the definiton of crimes against humanity was to a large extent already
addressed in the Rome Statute and that the new initiative should focus on improving
the operational capacity to prosecute such crimes at the domestic level and on the
regulation of interstate cooperation (extradition andmutual legal assistance) with regard
to the wider range of crimes, including genocide and war crimes. The Netherlands
referred to the initiative (described above) of the Netherlands, Argentina, Belgium,
Senegal and Slovenia to open negotiations for a multilateral treaty on the domestic
prosecution, mutual legal assistance and extradition concerning atrocity crimes.
28
Support for this initiative (to elaborate a multilateral treaty with wider scope covering
all relevant “international atrocity crimes”) was expressed also by Ireland, which was
of the view that “the Commission’s work on the topic of crimes against humanity
should not detract from that initiative.”
29
Some other delegations (
i.a.
Austria and
the Czech Republic) also mentioned that the Commission, in its work on the topic
“Crimes against humanity”, should take into account the above mentioned joint
intergovernmental initiative.
It is worth noting that the International Law Commission itself mentioned, in
its final report on the topic “The obligation to extradite or prosecute
(aut dedere aut
judicare)
” (2014), that the gaps in the current international legal regime in this area are
wider and do not concern only the crimes against humanity. The Commission observed
that “… there are important gaps in the present conventional regime governing the
obligation to extradite or prosecute which may need to be closed. Notably, there is
a lack of international conventions with this obligation in relation to most crimes
against humanity, war crimes other than grave breaches, and war crimes in non-
international armed conflict. In relation to genocide, the international cooperation
regime could be strengthened beyond the rudimentary regime under the Convention
for the Prevention and Punishment of the Crime of Genocide of 1948…”.
30
Some
authors representing international law doctrine came to similar recommendations
concerning the preparation of a treaty providing for legal cooperation and an
aut
dedere aut judicare
obligation in respect of all “the core international crimes”.
31
concerning obligations relating to interstate cooperation was not particular to crimes against humanity
and applied to all the serious crimes…”).
28
Doc. A/C.6/69/SR.20, paras. 15-17.
29
Doc. A/C.6/69/SR.19, para. 177.
30
ILC, Report on the work of its sixty-sixth session (2014), doc. A/69/10, pp. 147-8 and 154-6.
31
See Miša Zgonec-Rožej and Joanne Foakes, International Criminals: Extradite or Prosecute?, Chatham
House briefing paper, July 2013, p. 16 (“Rather than looking to customary international law to fill the
gap, one option might be for the ILC to recommend to states the negotiation and conclusion of a treaty
providing an
aut dedere aut judicare
obligation in respect of the core international crimes. As noted,
there is no such treaty obligation for any of these crimes other than for grave breaches in international
armed conflict.” …); see futher F. Lafontaine, Universal Jurisdiction – the Realistic Utopia, Journal