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PAVEL CABAN
CYIL 6 ȍ2015Ȏ
as an actionable treaty obligation of any State Party which, in a given situation, has
in its power to contribute to restraining in any degree the commission of genocide,
independently of the certainty that the preventative action to be taken will succeed
in preventing the commission of acts of genocide, or even of the likelihood of that
outcome.
59
Therefore, the inclusion of robust and more concrete provisions on
prevention into a future convention on crimes against humanity should enhance the
importance and effectiveness of preventative measures in this area.
Other innovations contained in the Proposed Convention include those provisions
excluding the possibility to formulate reservations (Article 23 of the Proposed
Convention), on the non-applicability of statute of limitations (Article 7 of the
Proposed Convention, which is based on Article 29 of the Rome Statute) and on the
irrelevance of official capacity (Article 6 of the Proposed Convention drawing upon
Article 27 of the Rome Statute). As to the latter issue,
i.e.
the provision, contained in
the Proposed Convention, on the irrelevance of official capacity and the immunities,
60
the question is whether such a provision – which was specifically designed to be used
by the International Criminal Court, whose jurisdiction has, by its nature, specific and
unique features in comparison to the jurisdiction of national courts of individual states
– can be simply “transplanted” into an instrument which should regulate the exercise
of jurisdiction of “ordinary” national courts over serious crimes. The conventions
which should serve as a model for the Proposed Convention (Convention against
Torture and Enforced Disappearance Convention) do not contain any such provision.
However, this fact does not mean that immunities (namely immunities under
customary international law) cannot be set aside when applying these conventions.
As confirmed
i.a.
in the Pinochet case,
61
the crimes under the conventions mentioned
above are
per definitionem
committed in (or in connection with the exercise of )
official capacity,
62
and, thus, by a necessary implication, they set aside or create an
exception to the immunity
ratione materiae
(under customary international law) of
all foreign State representatives or government officials for the purpose of prosecuting
59
International Court of Justice, Case Concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Hercegovina v. Serbia and Montenegro), Judgment
of 26 February 2007, para. 461; William A. Schabas, Genocide Law in a Time of Transition: Recent
Developments in the Law of Genocide, 61 Rutgers Law Review, 161, 2008-2009, p. 189.
60
Article 6 of the Proposed Convention: “1. The present Convention shall apply equally to all persons
without any distinction based on official capacity. In particular, official capacity as a head of State or
Government, a member of a Government or Parliament, an elected representative or a government
official shall in no case exempt a person from criminal responsibility under the present Convention,
nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special
procedural rules which may attach to the official capacity of a person, whether under national or
international law, shall not bar a court from exercising its jurisdiction over such a person.”
61
Regina v. Bow Street Metropolitan Stipendiary Magistráte,
ex parte
Pinochet Ugarte (No 3), England,
House of Lords, 24 March 1999.
62
See the definition of “torture” in Article 1 (1) of the Convention against Torture and the definition of
“enforced disappearance” in Article 2 of the Enforced Disappearance Convention.