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GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES
prepared in 2010 by the Crimes Against Humanity Initiative (a rule of law project of
the Whitney R. Harris World Law Institute).51 The Proposed Convention retains the
Rome Statute definition of crimes against humanity (Article 7 of the Rome Statute)
and adds elaborate provisions regulating interstate cooperation (extradition based
on the aut dedere aut iudicare principle, mutual legal assistance, transfer of criminal
proceedings, rule non bis in idem and non-refoulement, etc. ); it expressly mentions
not only individual responsibility but also state responsibility for the commision
of crimes against humanity; and it contains provisions on prevention of crimes
against humanity, responsibility of legal persons and an institutional mechanism for
supervision of the implementation of the Proposed Convention. In May 2014 the
Proposed Convention was the subject of discussions at an experts‘ meeting held at
Villa Moynier in Geneva, which brought together international justice experts and
members of the International Law Commission.52
As stated above, the Proposed Convention expressly mentions, in addition to
individual criminal responsibility (on which the whole regime of international
criminal justice is based), also state responsibility for internationally wrongful
acts, namely for crimes against humanity. According to Article 1 of the Proposed
Convention, “[c]rimes against humanity … constitute crimes under international
law for which there is individual criminal responsibility. In addition, states may
be held responsible for crimes against humanity pursuant to principles of State
responsibility for internationally wrongful acts”.53 Responsibility of States is also
mentioned in Article 26 of the Proposed Convention (the settlement of disputes),
which is in this regard inspired by Article 9 of the Genocide Convention.54
According to the explanatory note to the Proposed Convention, specific reference
to State responsibility “underscores the applicability of State responsibility principles
to the Proposed Convention” and “acknowledges that crimes against humanity may
give rise to the responsibility of States for internationally wrongful acts, should
breaches of the Proposed Convention be attributable to a State party in accordance
51 For the text of the Proposed Convention with commentaries and more information on the Crime Against
Humanity Initiative see (visited on 4 June 2015).
52 For the report from the meeting see supra, op. cit. sub 45.
53 A similar formulation is contained in preambular paragraph 11 of the Proposed Convention (“Recalling
that crimes against humanity constitute crimes under international law, which may give rise to the
responsibility of States for internationally wrongful acts.”).
54 Article 26 of the Proposed Convention: “Any dispute between two or more States Parties concerning the
interpretation or application of the present Convention, including those relating to the responsibility of
a State for alleged breaches thereof, … shall be submitted to arbitration …”. The Genocide Convention,
in its provision on the settlement of disputes, also refers to the disputes “relating to the interpretation,
application or fulfilment of the present Convention, including those relating to the responsibility of
a State for genocide or any of the other acts enumerated in Article 3”. However, the structure and
the purpose of the Genocide Convention is different from more recent international criminal law
instruments regulating international cooperation in prosecuting serious crimes.