458 / 536
444
PAVEL ŠTURMA
CYIL 7 ȍ2016Ȏ
parties may arise from their reactions to the practice of an international organization, or
they may be expressed in the practice of an organization of a constituent instrument.
21
By contrast, the practice of the organization as such may only contribute to the
interpretation of that instrument when applying Articles 31, para. 1, and 32 of the
Vienna Convention.
22
Finally, draft conclusion 13, adopted this year, refers to
pronouncements of expert treaty bodies.
23
Their relevance is subject to the applicable
rules of the treaty (para. 2). A pronouncement of an expert treaty body may give rise
to, or refer to, a subsequent agreement or subsequent practice by parties (para. 3).
In addition, this draft conclusion is without prejudice to the contribution that
a pronouncement of an expert treaty body may otherwise make to the interpretation
of a treaty (para. 4).
2.4 Crimes against humanity
Since the ILC decided, in 2014, to include in its programme the topic Crimes
against humanity, this year it considered the second report of the Special Rapporteur
Sean Murphy,
24
which addressed,
inter alia
, criminalization under national law,
establishment of national jurisdiction, general investigation and cooperation for
identifying alleged offenders, exercise of national jurisdiction when an alleged
offender is present, the obligation
aut dedere aut judicare
and fair treatment of an
alleged offender. In addition, the Commission had before it the memorandum by the
Secretariat providing information on existing treaty-based monitoring mechanisms
which may be of relevance to the future work of the ILC.
25
After the debate in Plenary, the Commission decided to refer the proposed draft
articles to the Drafting Committee. Upon consideration of the report of the Drafting
Committee, the ILC provisionally adopted draft articles 5 to 10, together with
commentaries.
26
As a result of the debate in Plenary and a concept paper presented by
the Special Rapporteur, the ILC also decided to refer to the Drafting Committee the
question of the liability of legal persons. Following its consideration of a further report
of the Drafting Committee,
27
the Commission provisionally adopted paragraph 7 of
draft article 5 with the commentary.
The six adopted draft articles, modelled according to other modern multilateral
treaties in the area of international criminal law, address a wide range of issues.
According to draft article 5, each State shall take the necessary measures to ensure
that crimes against humanity constitute offences under its criminal law (para. 1).
21
Ibid
., p. 97.
22
Ibid
., pp. 101-103.
23
See doc. A/CN.4/L.884/Add.2, p. 3 ff.
24
See doc. A/CN.4/690 (2016).
25
See doc. A/CN.4/698 (2016).
26
See doc. A/CN.4/L.873 (2016).
27
See doc. A/CN.4/L.873/Add.1.