Human Rights Watch Urges Action on Commission's Crimes Against Humanity Draft

Human Rights Watch

Human Rights Watch welcomes the International Law Commission's Draft Articles on Prevention and Punishment of Crimes Against Humanity, submitted to the UN General Assembly in 2019 (the "Draft Articles"), which could become the basis of a convention on crimes against humanity.

The Draft Articles constitute a valuable starting point for negotiation of a new treaty. There are numerous significant and positive provisions in the Draft Articles, including the obligation on states to prevent and punish crimes against humanity, to enact domestic legislation to prevent crimes against humanity, and the requirement to extradite or prosecute alleged offenders, among others.

There are also areas in which the Draft Articles could be improved. In this document, Human Rights Watch recommends seven proposed changes to the current text, including revisions to the existing definitions of the crimes of persecution, enforced disappearance, and forced pregnancy, and adding new provisions prohibiting amnesties for crimes against humanity, prohibiting reservations to the treaty, establishing a treaty body monitoring mechanism, and prohibiting assertion of immunities against prosecution for crimes against humanity. Human Rights Watch also recommends retaining the language in the Draft Articles that update and strength of the language of the Rome Statute, particularly the command responsibility provisions and removal of the limiting definition of gender.

Recommendations

  1. Remove the limitation on the definition of the crime against humanity of persecution

Human Rights Watch recommends removal of the limitation in draft article 2(1)(h) that provides that persecution is only a crime when committed in connection with any other crime listed in the statute.[1] This limitation on this crime was introduced in the Rome Statute of the International Criminal Court, which provides that the crime against of humanity of persecution can only be committed in connection with other crimes under the jurisdiction of the International Criminal Court.[2] However, the crime of persecution should be a stand-alone offence, like the other crimes in the Draft Articles.

The customary international law definition of the crime against humanity of persecution contains no such limitation.[3] In repeating the limitation on this crime introduced by the Rome Statute, the Draft Articles create a limitation on this crime that addresses the most serious forms of discrimination, that is not imposed on any other crime against humanity. In fact, the limitation on the crime of persecution is even narrower than in the Rome Statute, which, unlike the Draft Articles, apply persecution to acts committed in connection to war crimes as well as crimes against humanity.

Major precedents in international criminal law prior to the Rome Statute like the 1945 Control Council Law No. 10,[4] the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia,[5] and the 1994 Statute of the International Criminal Tribunal for Rwanda,[6] do not require any additional link or specific connection with other crimes under international law for the crime against humanity of persecution.

Major precedents following the Rome Statute, like the Statute of the Special Court for Sierra Leone,[7] the Law on the Extraordinary Chambers in the Courts of Cambodia,[8] the Kosovo Law on Specialist Chambers and Specialist Prosecutor's Office,[9] and the Statute of the African Court of Justice and Human Rights (as amended by the Malabo Protocol),[10] do not require any additional connection with other crimes for the crime against humanity of persecution.

The ILC retained the limitation from the Rome Statute because of states' concern that the definition would otherwise be too broad and include discriminatory practices that would not necessarily amount to crimes against humanity.[11] The ILC asserts that the definition of persecution is not unduly limited because it can still be prosecuted if committed in connection with any "other inhumane acts," which provides guidance on the nature of persecution by requiring such acts to be similar to the other crimes listed in the definition.[12]

However, the restriction and its justification inappropriately imply that the intentional and severe deprivation of human rights by reason of the identity of a group is not sufficiently serious to be considered an international crime in and of itself.[13]

Recommendation: Remove the words ''in connection with any act referred to in this paragraph" in the definition of the crime of persecution in draft article 2(1)(h), as follows:

(h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph;

  1. Remove limitation on the definition of the crime against humanity of enforced disappearance

Human Rights Watch recommends the removal of the limitation in draft article 2(2)(i) that provides that enforced disappearance of persons must have occurred "with the intention of removing [the disappeared person] from the protection of the law for a prolonged period of time."[14] The crime against humanity of enforced disappearance should be revised to match the definition provided in the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED),[15] which contains no such intention or duration requirements.[16]

The ILC appears to have prioritized harmonization between the Draft Articles and the Rome Statute in this provision.[17] The ILC asserts that the "intention" requirement is not that consequential because it may not significantly change what is otherwise required when proving a criminal offense-because the context of a crime against humanity requires an enforced disappearance be conducted pursuant to or in furtherance of a state or organizational policy.[18] The ILC also points to draft article 2(3)[19] which provides that the definitions of crimes against humanity are "without prejudice to any broader definition" in other international or national law, which was included to ensure that the definitions in the Draft Articles would not call into question any broader definitions, including those related to enforced disappearance.[20]

The Draft Articles should include the definition of enforced disappearance that is aligned with the most recent developments in international law, particularly if harmonization of national laws is an objective of the draft articles.[21] The definition in ICPPED reflects the crime as it is currently understood, contains objective elements, in an instrument that focuses specifically on enforced disappearance. Like the ICPPED definition, the Draft Articles should remove the "intention" requirement because there is no reason for why such a precise intention is necessary to consider this conduct as a crime. Further, it would require proof of the perpetrator's subjective intention which would be difficult to substantiate.[22] The duration requirement should also be removed. If a person has been arrested, detained, or abducted by an authority, and that authority subsequently refuses to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of the person, clearly that person is already outside the protection of the law, whether or not the period has been "prolonged." Moreover, the initial period of disappearance is often when a disappeared person is most vulnerable and the crime against humanity of enforced disappearance should include this initial period.

Recommendation: Remove the words "with the intention of removing for a prolonged period of time" in the definition of enforced disappearance in draft article 2(2)(i), and replace with the phrase "which place such a person outside the protection of the law," as follows:

(i) "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time, which place such a person outside the protection of the law.

  1. Remove limitation on the definition of the crime against humanity of forced pregnancy

Human Rights Watch recommends revising the definition of forced pregnancy to remove the caveat on national laws. Forced pregnancy is the only act in the crimes against humanity definition which includes a caveat exempting national laws and is thus arbitrarily differentiated from other acts that constitute crimes against humanity.[23] The ICC Appeals Chamber affirmed in Ongwen that this caveat "does not impose a new element to the crime of forced pregnancy."

The differential treatment of forced pregnancy in the Rome Statute was the result of a political compromise and has no functional or legal basis.[24] The ILC did not specifically comment on the national laws limitation in the definition of forced pregnancy. Instead, the ILC notes that the definition of crimes against humanity was reproduced verbatim from article 7 of the Rome Statute, other than three changes, one of which is non-substantive change that was made to reflect the difference between the statutes. The second change is that the phrase in Rome Statute article 7(1)(h) that criminalizes acts of persecution when undertaken in connection with "any crime within the jurisdiction of the Court" has not been retained in the persecution definition in the Draft Articles. The third change was to remove the definition of "gender."[25]

Recommendation: Remove the sentence "This definition shall not in any way be interpreted as affecting national laws relating to pregnancy" in the definition of forced pregnancy in draft article 2(2)(f), as follows:

"forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

  1. Add provision explicitly prohibiting amnesties for crimes against humanity

Human Rights Watch recommends the addition of a provision that explicitly prohibits amnesties for crimes against humanity in national and international judicial proceedings.[26] "Amnesties" means legal measures that have the effect of prospectively barring criminal prosecution, and in some cases civil action, of certain individuals or categories of individuals, or legal measures that retroactively nullify previously established legal liability.[27]

The ILC did not include a prohibition on amnesties in the Draft Articles to be consistent with the approach taken in other treaties addressing crimes, including the Rome Statute.[28] The ILC also notes that it is generally accepted that the granting of amnesty by one state has no direct effect on prosecutions in a different state.[29] Therefore, with respect to the Draft Articles, an amnesty adopted by one state would not bar prosecution by another state with concurrent jurisdiction over the offence.[30]

However, under no circumstances should amnesties be permitted for crimes against humanity, which by definition are horrific crimes of concern to the international community as a whole and violate a peremptory norm of general international law. Failing to include a specific prohibition on general amnesties could run counter to the object and purpose of a future convention because specific cases of impunity could arise that would be contrary to the purpose of punishing and preventing crimes against humanity.[31] Further, a state's granting of an amnesty for crimes against humanity would conflict with states' obligations under the Draft Articles to criminalize, investigate, and prosecute crimes against humanity, to comply with their aut dedere aut judicare obligations, and to fulfil its obligations to victims and others.[32]

Recommendation: Add a provision explicitly prohibiting amnesties for crimes against humanity

  1. Add provision explicitly prohibiting states from making reservations to the treaty

Human Rights Watch recommends the addition of a provision explicitly prohibiting states from making reservations to the treaty.

The ILC excluded final clauses on matters such as reservations in the Draft Articles in accordance with ILC practice.[33] Now that discussion of the Draft Articles is out of the hands of the ILC and facilitated by states through the UN General Assembly's Sixth Committee, Human Rights Watch believes a prohibition against reservations should be added to the Draft Articles.

Article 120 of the Rome Statute provides that no reservations may be made to the statute.[34] To ensure consistency with the Rome Statute, the Draft Articles should also prohibit reservations to the treaty. Prohibiting reservations will ensure that all state parties assume the same obligations in repressing crimes against humanity, create certainty about the extent of obligations, and prevent undermining the convention's integrity and moral authority.

Recommendation: Add a provision explicitly prohibiting reservations to the treaty

  1. Add provisions to establish a treaty body monitoring mechanism

Human Rights Watch recommends that the Draft Articles include the creation of a treaty body monitoring mechanism, with the power to review state compliance and provide guiding interpretations of the treaty. Possible models include bodies such as the committees established in the International Convention for the Protection of All Persons from Enforced Disappearance,[35] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[36] as well as the Sub-Committee on the Prevention of Torture. Such a mechanism would promote states' implementation of the treaty and assist with the elaboration and interpretation of the law. It should require states parties to regularly report to the body, allow for complaints by individuals against state parties, provide for inter-state complaints, and establish a process for inquiries or visits by the treaty body. It should be adequately resourced.

The ILC did not include a treaty body monitoring mechanism in the Draft Articles, but notes that a treaty body monitoring mechanism "might help ensure that states fulfil their commitments under the convention, such as with respect to adoption of national laws, pursuing appropriate preventative measures, engaging in prompt and impartial investigations of alleged offenders, and complying with their aut dedere aut judicare obligation."[37] The Special Rapporteur has also surveyed existing treaties' different institutional structures to assist in the monitoring of, implementation of and compliance with the relevant treaty, and the range of procedures they can entail.[38]

Recommendation: Add provisions establishing a treaty body monitoring mechanism, that should be adequately resourced

  1. Add a provision barring persons in official positions from asserting immunities to avoid prosecution under domestic or international law

Human Rights Watch recommends that the treaty should add a provision requiring states to prohibit immunities due to official position for crimes against humanity under domestic or international law, to ensure that all persons credibly suspected of crimes against humanity can be prosecuted.

While the Draft Articles require states to ensure that the fact that an offence was committed by a person holding an official position is not ground for excluding criminal responsibility,[39]there is no provision in the Draft Articles barring a state official's assertion of immunity before a court. Indeed, the ILC provides that "[draft article 6(5)] has no effect on any procedural immunity that a foreign State official may enjoy before a national criminal jurisdiction"[40] and asserts that immunities should be addressed instead by customary international law and a separate treaty on immunities.[41]

While certain international criminal statutes do not include a provision on immunity,[42] others do provide that officials have international criminal responsibility or shall be punished,[43]and treaties establishing international courts and tribunals "typically abrogate immunities of States officials, out of a belief that concerns with respect to prosecutions at the national level are not warranted before courts and tribunals consisting of international prosecutors and judges."[44] Indeed, the Rome Statute includes an article that provides that immunities do not bar the ICC from exercising jurisdiction.[45]

Recommendation: Add provision explicitly prohibiting assertion of immunities for crimes against humanity

  1. Keep elements in draft that improve the Rome Statute definitions

Human Rights Watch supports the retention of elements and language of the Draft Articles that amount to an updating and strengthening of the language of the Rome Statute.

These are, notably, Draft Article 6(3), which unifies and clarifies the standards of command responsibility for military and civilian commanders, and the removal of the limiting definition of "gender" that was inserted into the Rome Statute.

[1] Article 2(1)(h) of the Draft Articles provides as a crime against humanity: "persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph" [emphasis added].

[2] Article 7(1)(h) of the Rome Statute provides as a crime against humanity: [p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court" [emphasis added]. Rome Statute of the International Criminal Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 7(1)(h).

[3] International scholar and judge Antonio Cassese said the crime under customary international law consists of acts that result in grave violations of fundamental rights that are part of a widespread or systematic practice and that are committed with discriminatory intent. See Human Rights Watch, Apartheid and Persecution: The Forgotten Crimes Against Humanity, April 30, 2021, citing Antonio Cassese and Paola Gaeta, International Criminal Law, Third Edition, Oxford University Press, 31 January 2013.

[4] Control Council Law No. 10, Punishment of persons guilty of war crimes, crimes against peace and against humanity, done at Berlin, 20 December 1945, Article II(1)(c) ('(a) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.').

[5] Statute of the International Criminal Tribunal for the Former Yugoslavia, May 25, 1993, annex to the Secretary Report 5/25704, art. 5(h) ('Persecutions on political, racial and religious grounds.').

[6] Statute of the International Criminal Tribunal for Rwanda, November 8, 1994, S/RES/955, art. 3(h) ('Persecutions on political, racial and religious grounds.').

[7] UN Security Council, Statute of the Special Court for Sierra Leone, January 16, 2002, art. 2(h) ('Persecution on political, racial, ethnic orreligious grounds;').

[8] Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004, NS/RKM/1004/006, art. 5 ('persecutions on political, racial, and religious grounds').

[9] Law on Specialist Chambers and Specialist Prosecutor's Office, No.05/L-053, August 3, 2015, art. 13(h) ('persecution on political, racial, ethnic or religious grounds;').

[10] Protocol on the Statute to the African Court of Justice and Human Rights (Malabo Protocol), June 27, 2014, art. 28C(1)(h) ('Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law'). The Malabo Protocol has not yet entered into force.

[11] International Law Commission, Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, 2019, art. 2, para. 38.

[12] International Law Commission, Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, 2019, art. 2, Commentary, para. 38.

[13] International Law Commission, Special Rapporteur on crimes against humanity, Fourth report on crimes against humanity, A/CN.4/725, February 18, 2019, para. 64, citing Crimes against humanity: Comments and observations received from Governments, international organizations and others, A/CN.4/726, chapter II.B.4, Chile.

[14] Article 2(2)(i) of the Draft Articles provide as follows: "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time." (emphasis added).

[15] International Convention for the Protection of All Persons from Enforced Disappearance, August 3, 2017, A/72/280, entered into force 23 December 2010.

[16] Article 2 of ICPPED provides as follows: "For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law." Declaration on the Protection of all Persons from Enforced Disappearance, GA Res. 47/133 of 18 Dec. 1992.

[17] The ILC pointed to the Committee on Enforced Disappearance's comment that overall consistency between the Draft Articles and the Rome Statute "ought to be paramount, for the sake of effective co-operation" between states in prosecution of these crimes. International Law Commission, Special Rapporteur on crimes against humanity, Fourth report on crimes against humanity, A/CN.4/725, February 18, 2019, para. 76.

[18] International Law Commission, Special Rapporteur on crimes against humanity, Fourth report on crimes against humanity, A/CN.4/725, February 18, 2019, para. 77.

[19] "This draft article is without prejudice to any broader definition provided for in any international instrument, in customary international law or in national law." Draft Article 2(3).

[20] International Law Commission, Special Rapporteur on crimes against humanity, Fourth report on crimes against humanity, A/CN.4/725, February 18, 2019, para. 78.

[21] International Law Commission, Crimes against humanity, Comments and observations received from Governments, international organizations and others, A/CN.4/726, January 21, 2019, at 30/166.

[22] International Law Commission, Crimes against humanity, Comments and observations received from Governments, international organizations and others, A/CN.4/726, January 21, 2019, at 34/166.

[23] Global Justice Center, Submission to the International Law Commission: The Need to Integrate a Gender-Perspective into the Draft Convention on Crimes Against Humanity, November 2018.

[24] Global Justice Center, Submission to the International Law Commission: The Need to Integrate a Gender-Perspective into the Draft Convention on Crimes Against Humanity, November 2018, citing Soh Sie Eng Jessie, Forced Pregnancy: Codification in the Rome Statute and its Prospect as Implicit Genocide, 4 NZJPIL 311 (2006).

[25] International Law Commission, Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, 2019, art. 2, para. 8.

[27] International Law Commission, Special Rapporteur on crimes against humanity, Third report on crimes against humanity, A/CN.4/704, January 23, 2017, para. 285.

[28] International Law Commission, Special Rapporteur on crimes against humanity, Third report on crimes against humanity, A/CN.4/704, January 23, 2017, para. 297; International Law Commission, Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, 2019, art. 10, para. 11.

[29] International Law Commission, Special Rapporteur on crimes against humanity, Third report on crimes against humanity, A/CN.4/704, January 23, 2017, para. 291, citing the Belfast Guidelines on Amnesty and Accountability (footnote 491 above), guideline 18 a) ("Although amnesties bar criminal proceedings within the states that enacted the amnesty, they cannot bar international, hybrid or foreign courts from exercising jurisdiction. Such courts may decide under their own jurisdiction whether to recognise an amnesty") and R. O'Keefe, International Criminal Law, Oxford University Press, 2015, p. 477; and Ould Dah v. France, p. 438.

[30] International Law Commission, Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, 2019, art. 10, para. 13, citing Ould Dah v. France, Application No. 13113/03, Decision on admissibility of 17 March 2009, Fifth Section, European Court of Human Rights, ECHR 2009, para. 49.

[31] International Law Commission, Crimes against humanity, Comments and observations received from Governments, international organizations and others, A/CN.4/726, January 21, 2019, at 15/166.

[32] International Law Commission, Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, 2019, art. 10, para. 13; International Law Commission, Crimes against humanity, Comments and observations received from Governments, international organizations and others, A/CN.4/726, January 21, 2019, at 65/166.

[33] International Law Commission, Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, 2019, General Commentary, para. 3. See also International Law Commission, Special Rapporteur on crimes against humanity, Third report on crimes against humanity, A/CN.4/704, January 23, 2017, paras. 305-326, which discusses possible options for a final clause relating to reservations.

[34] "No reservations may be made to this Statute." Rome Statute, art. 120.

[35] International Convention for the Protection of All Persons from Enforced Disappearance, art. 26.

[36] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, art. 17.

[37] International Law Commission, Special Rapporteur on crimes against humanity, Third report on crimes against humanity, A/CN.4/704, January 23, 2017, para. 238.

[38] International Law Commission, Special Rapporteur on crimes against humanity, Third report on crimes against humanity, A/CN.4/704, January 23, 2017, paras. 222-239; International Law Commission, Crimes against humanity, Memorandum by the Secretariat, Information on existing treaty-based monitoring mechanisms which may be of relevance to the Commission's future work of the International Law Commission, A/CN.4/698, March 18, 2016.

[39] "E]ach State shall take the necessary measures to ensure that, under its criminal law, the fact that an offence referred to in this draft article was committed by a person holding an official position is not a ground for excluding criminal responsibility." Draft Articles, art. 6(5).

[40] International Law Commission, Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, 2019, art. 6, para. 31, which also notes that and that draft article 6(5) is without prejudice to the ILC's work on immunities of state officials from foreign criminal jurisdiction.

[41] International Law Commission, Special Rapporteur on crimes against humanity, Third report on crimes against humanity, A/CN.4/704, January 23, 2017, para. 284.

[42] International Law Commission, Special Rapporteur on crimes against humanity, Third report on crimes against humanity, A/CN.4/704, January 23, 2017, para. 281, citing, for example, the 1949 Geneva Conventions for the protection of war victims, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or the International Convention for the Protection of All Persons from Enforced Disappearance, among others.

[43] See, for example, the Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, UNTS 78, article IV (perpetrators "shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals"); and the International Convention on the Suppression and Punishment of the Crime of Apartheid, article III ("[i]nternational criminal responsibility shall apply . . . to . . . representatives of the State, whether residing in the territory of the State in which the acts are perpetrated or in some other State").

[44] International Law Commission, Special Rapporteur on crimes against humanity, Third report on crimes against humanity, A/CN.4/704, January 23, 2017, para. 283.

[45] "Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person." Rome Statute, art. 27(2).

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