CYIL 2015

306

PAVEL CABAN

CYIL 6 ȍ2015Ȏ

with the International Law Commission’s Draft Articles on Responsibility of States

for Internationally Wrongful Acts”. Addition of such a new (undisputed and obvious)

element to the text of a possible new international criminal law instrument is definitely

possible and can be regarded as a formulation which puts an emphasis on the special

seriousness of crimes against humanity. The question is, nevertheless, what should be

the added value of such an express reference to the responsibility of states and whether

such a reference would strenghten the regime of international cooperation in the

prosecution of crimes against humanity. As regards the provision on the settlement

of disputes, a simple phrase mentioning “the disputes between two or more States

Parties concerning the interpretation or application of this Convention” (contained

i.a.

in Article 30(1) of the Torture Convention and Article 42(1) of the Convention on

Enforced Disappearances) should suffice, since it would also, depending on the subject-

matter of the dispute, cover disputes relating to the responsibility of a State (breach of a

treaty by a State entails State responsibility under international law), but perhaps would

not, by expressly mentioning state responsibility, “distract the attention” from the focus

of the proposed instrument, which is the prosecution of individual perpetrators of

crimes against humanity and cooperation among states in this area. It would also be

in line with the text of relevant provisions of other recent international criminal law

instruments aimed at prosecuting other serious crimes.

Further, the Proposed Convention addresses the liability of legal persons for

crimes against humanity.

Many participants of the Expert Meeting in May 2014

in Geneva supported the idea that legal persons should be liable for commission of

crimes against humanity – mainly for preventative and deterrent purposes.

As for

other conventions, the liability of legal persons is provided for in the United Nations

Convention against Trasnational Organized Crime (Article 10) and the United

Nations Convention against Corruption (Article 26); similar provisions are contained

also,

i.a.

, in the International Convention for the Suppression of the Financing of

Terrorism (1999), the Council of Europe Convention on the Prevention of Terrorism

(2005), the Convention on Combating Bribery of Foreign Public Officials in

International Business Transactions (1997) or the Convention on the Protection of

the Environment through Criminal Law (1998). On the other hand, the Convention

against Torture (1984) and the Convention against Enforced Disappearance (2006)

Article 8, paragraph 6 of the Proposed Convention provides: “Each State Party shall adopt such

legislative and other measures as may be necessary, consistent with its legal principles, to establish the

liability of legal persons for participation in crimes against humanity. Subject to the legal principles of

the State Party, the liability of legal persons may be criminal, civil or administrative. Such liability shall

be without prejudice to the criminal liability of the natural persons who have committed the offense.

Each State Party shall, in particular, develop administrative measures designed to provide reparation to

victims, and to ensure that legal persons held liable in accordance with this article are subject to effective,

proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.”.

Op. cit.

sub 45, pp. 14-15.