321 / 464
307
GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES
do not contain any provisions on the liability of legal persons; these provisions are
also absent
, i.a.
, from the International Convention for the Suppression of Terrorist
Bombings (1997), the International Convention for the Suppression of Acts of
Nuclear Terrorism (2005) or the Second Protocol to the Hague Convention of 1954
for the Protection of Cultural Property in the Event of Armed Conflict (1999). It
seems that international instruments that require the establishment of liability of
legal persons are those which penalize more “abstract”, “financial” or “organizational”
crimes,
i.e.
crimes in which a private legal person may substantially participate (and,
perhaps, with regard to which even civil or administrative liability of legal persons
appears to be adequate). It will be desirable to assess into which of the two groups of
criminal law conventions mentioned above a possible future convention on crimes
against humanity (or crimes under international law) should belong. At the same
time, it may be also relevant to study this issue in relation to the above mentioned
different interpretations of the “organizational policy” element contained in the
definition of crimes against humanity under Article 7 of the Rome Statute.
The Proposed Convention also contains quite elaborate provisions on prevention
of crimes against humanity.
57
The preventative measures envisaged in the Proposed
Convention include the obligation to prohibit national, racial or religious hatred that
constitutes incitement to discrimination, hostility, or violence; the possibility to call upon
the competent organs of the United Nations or regional organisations to take actions, in
accordance with the Charter of the United Nations, for the prevention and punishment
of crimes against humanity; the obligation to develop educational and informational
programmes including the training of law enforcement officers, military personnel,
or other public officials; the protection of “whistle-blowers”; and the prohibition and
irrelevance of orders or instructions prescribing, authorizing, or encouraging crimes
against humanity. Similar, but a bit less elaborate provisions on prevention are also
contained in the Convention against Torture and Enforced Disappearance Convention.
58
The general obligation to prevent genocide is provided for in Article 1 of the Genocide
Convention (“The Contracting Parties confirm that genocide, whether committed in
time of peace or in time of war, is a crime under international law which they undertake
to prevent and to punish.”). It is worth noting that even this very general provision
in the Genocide Convention was intepreted by the International Court of Justice
57
Article 8, paragraphs 12 to 16 of the Proposed Convention.
58
See above all Articles 2, 10, 11 and 16 of the Convention against Torture and Articles 12, 22, 23
and 25 of the Enforced Disappearance Convention. The Convention against Torture [Article
2(1)] formulates the general preventive obligation as follows: “Each State Party shall take effective
legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its
jurisdiction.” As
summarized by the Commission’s Special Rapporteur, this obligation would normally
oblige the State party
i.a.
to adopt laws and policies necessary to establish awareness of relevant crimes
and keep these laws and policies under constant review, to educate governmental officials as to the
obligations under the relevant convention and to develop training programmes for police, military and
other relevant personnel; First report,
op. cit.
sub 9, p. 55.