CYIL 2015

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PAVEL CABAN

CYIL 6 ȍ2015Ȏ

in prosecuting crimes against humanity or crimes under international law, if drafted

along the lines of the Convention against Torture (including the “Hague formula”)

and other conventions mentioned above and interpreted in accordance with the

judgment by the International Court of Justice, could to large extent (depending

on its acceptance by states) fill legal gaps in the regime of universal jurisdiction over

crimes under international law: all states parties to such a convention (

i.e.

even those

states which did not have any territorial or personal link with the alleged crime and,

therefore, would not be entitled to issue an arrest warrant or request extradition)

would have an entitlement or option to insist on performance of obligations under

the relevant convention by another state party and make a claim, addressed to the

state where the alleged perpetrator is present, for the cessation of any breach of the

obligations contained in the convention, including the obligations concerning the

prosecution of the alleged offender. Such a regime, even if the convention were not

widely accepted, could also influence the formation of customary international law

in this area and gradually replace or amend current (disputed and not too clear)

concept of universal jurisdiction under customary international law.

5. Relationship of a possible new convention to other relevant treaty

regimes

One of the most important aspects of the work on a possible new convention on

cooperation in the prosecution of crimes against humanity (or also other categories of

crimes under international law) will be the relationship of a possible new convention

to other relevant, already existing treaty regimes aimed at prosecuting and punishing

the crimes under international law and other serious crimes, primarily the Rome

Statute. In general, as mentioned by the Commission’s Special Rapporteur for the

topic “Crimes against humanity”, the added value of a possible new convention on

crimes against humanity (in comparison, in particular, to the Rome Statute) would be

the express requirement to enact national laws that criminalize (on wide jurisdictional

basis, including the “contractual” universal jurisdiction) crimes against humanity, the

express regulation of interstate cooperation and inclusion of the obligations relating

to the prevention of crimes against humanity; thus, the possible new convention

would substantially strengthen the principle of complementarity, which is one of the

basic principles of the Rome Statute.

As regards those crimes which should be covered by a future convention, the

question is whether such a new convention should adopt exactly the same definitions

of these crimes as contained in already existing international legal instruments, namely

the Rome Statute (either by the adoption of the relevant provisions “word by word”,

or by a simple reference to these definitions), or whether these definitions should be

adapted or developed in some way. These discussions are the most pertinent with regard

First report,

op. cit.

sub 9, pp. 10-11.