Progress towards a Convention on Crimes against Humanity: the issue of jurisdiction
Crimes against humanity are a category of crimes that can often be traced back to the post-World War II statutes of the Nuremberg and Tokyo military tribunals.
It should be recalled that, unlike war crimes, crimes against humanity, such as genocide, can be committed in peacetime as well as in armed conflict.
While the same acts that may constitute genocide may also constitute crimes against humanity, such as murder, enslavement, rape, torture and forcible transfer, the mental state required to establish crimes against humanity differs from that required to establish genocide. Whereas the crime of genocide requires the intent to destroy a national, ethnic, racial or religious group, crimes against humanity require the knowledge that the prohibited act was part of a widespread and systematic attack against a civilian population. These differences in the mental state criteria imply that many acts of genocide can also be considered crimes against humanity, but not all crimes against humanity amount to genocide.
Since World War II, these crimes have been included in the jurisdictional instruments of several international criminal tribunals, including the Rome Statute of the International Criminal Court (ICC) (art.7).
However, unlike other international crimes, such as war crimes, genocide, torture and enforced disappearance, there is to date no international treaty specifically dedicated to crimes against humanity.
It is widely recognised that this is a significant gap in the international legal framework and that a specific legal instrument to address crimes against humanity is needed specifically for crimes against humanity.
In 2013, the International Law Commission (ILC), the UN body tasked with promoting the progressive development of international law and its codification, adopted the inclusion of crimes against humanity in its programme of work. In 2019, it adopted the Draft Articles on the Prevention and Punishment of Crimes against Humanity and submitted them to the UN General Assembly for consideration. The ILC also recommended the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries based on the draft articles.
The draft elaborated by the ILC contains significant and positive elements, such as the definitions of these crimes, the obligation of states to prevent and punish them, the introduction of these crimes into national legislation and to prosecute or extradite alleged perpetrators, other aspects in which the draft articles could be improved.
On jurisdiction, following existing international law, the text proposed by the ILC has not established a hierarchy between the various bases of jurisdiction, which means that no one basis of jurisdiction takes precedence over the others as a matter of law.
Indeed, Article 7(1) provides that states shall establish jurisdiction when crimes against humanity are committed in a territory under their jurisdiction (including onboard vessels or aircraft registered in that state) (territorial jurisdiction), and when the alleged offender is a national of that state (active personality jurisdiction). It also provides that a state shall establish jurisdiction, “if that state considers it appropriate”, over stateless persons “habitually resident” in its territory (also active personality jurisdiction), and where the victim is a national of that state (passive personality jurisdiction). In addition, Article 7(2) provides that a state “shall also take the necessary measures to establish” its jurisdiction in cases where a suspect “is present in any territory under its jurisdiction and it does not extradite or surrender the person” in question (what some refer to as “conditional universal jurisdiction”). Finally, Art. 7(3) “does not exclude the exercise of any criminal jurisdiction established by a state under its national law” (i.e. universal jurisdiction that does not require the presence of the suspect).
In this way, the text reflects the content of other international treaties, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Art. 5), the International Convention for the Protection of All Persons from Enforced Disappearance (Art. 9), and the recently adopted Ljubljana-Hague Convention (Art. 8), which aims to facilitate cooperation in criminal matters to strengthen the fight against impunity for the commission of core international crimes. Like Article 7 of the ILC draft, none of these treaties establishes a hierarchy between the various bases of jurisdiction.
In this regard, the 2009 AU-EU Report on the Principle of Universal Jurisdiction clearly stated that positive international law does not recognise any hierarchy between the various bases of jurisdiction. In other words, a state that enjoys universal jurisdiction over, for example, crimes against humanity, has no positive legal obligation to give priority in prosecution to the state on whose territory the crimes were committed or to the state of nationality of the offender or the victims.
In line with the aforementioned treaties, the ILC draft also includes, in Article 10, the principle “aut dedere aut judicare” (you prosecute or you judge).
The issue of the establishment and exercise of national criminal jurisdiction over crimes against humanity, and therefore draft articles 7 and 10 on the establishment and exercise of national criminal jurisdiction over crimes against humanity, as well as draft articles 9 and 13 on avenues of cooperation between states to address possible competing jurisdictional claims, were among the topics of discussion at this second session of the Sixth Committee of the General Assembly, held in April 2024.
In this regard, it should be noted that in their comments submitted in December 2023 in preparation for the second resumed session of the Sixth Committee this April 2024, some States argued that territorial and active personality jurisdiction should take precedence over other bases (Israel; Singapore; Turkey; United States). Other States, on the other hand, expressed support for the current text of Article 7 (Austria; Belgium; Colombia; Czech Republic; Mexico; and Nordic countries), as did the European Union. Spain has not taken a position on this issue.
The case of Chilean dictator Augusto Pinochet, detained in London based on an arrest warrant issued by examining magistrate Baltasar Garzón, reminds us of the importance of this issue.
The Sixth Committee will meet again on 11 April to conclude its resumed session to adopt a final decision in autumn 2024.
FIBGAR hopes that, during the negotiations for a future Convention on Crimes against Humanity, States will agree to maintain the text of Article 7, as formulated by the ILC, without prescribing any hierarchy between the various bases of jurisdiction.
To do otherwise would not only introduce additional obstacles to the exercise of jurisdiction but would also imply that crimes against humanity are not of equal concern to the international community as a whole, which would run counter to the spirit of a future Convention on Crimes against Humanity.
Alessia Schiavon, Director executiva, FIBGAR
