United Nations

A/CN.4/704

ADVANCE UNEDITED

VERSION

Distr.: General

23 January 2017

Original: English

A/CN.4/704

International Law Commission

Sixty-ninth Session

Geneva, 1 May - 2 June and 3 July - 4 August 2017

Third report on crimes against humanity

By Sean D. Murphy, Special Rapporteur[footnoteRef:2]* [2: * The Special Rapporteur wishes to thank Anees Ahmed, Tae-Ung Baik, Robert Beckman, Robert Behlen, Joanna Buckley, Marta Bylica, Arturo Carrillo, Silvia Cartwright, Wen-Chen Chang, Sabin Chung, Julia Currie, Steven Freeland, Sarah Freuden, Sarah Fulton, Richard Goldstone, Hurst Hannum, Garrett Henderson, Yasushi Higashizawa, Nina Jrgensen, Nazhat Shameem Khan, Huna Kamir, Claus Kre, Rena Lee, Amy Lindsay, Liu Daqun, Nora Mbagathi, Juan Mendez, Rahmat Mohamad, Nikhil Narayan, Lucy Reed, Hugo Relva, Eleanor Ross, Jason Ross, Leila Sadat, William Schabas, Kristin Shaulis, Kristin Smith, Jessica Sparano, Herb Somers, Kelisiana Thynne, Erin Torres, Edmund Wong and the George Washington University Human Rights Clinic for their invaluable assistance in the preparation of the present report.]

Contents

Introduction

A.Work to date on this topic

B.Debate in 2016 in the Sixth Committee

C.Purpose and structure of the present report

Chapter I

Extradition

A.Extradition and crimes against humanity

B.Extradition provisions in treaties addressing specific crimes

1.Dual criminality

2.Inclusion as an extraditable offence in existing and future treaties

3.Exclusion of the political offence exception to extradition

4.States requiring a treaty to extradite can use the present draft articles

5.States not requiring a treaty to extradite shall use the present draft articles

6.Satisfying other requirements of the requested States national law

7. Deeming the offence to have occurred in the requesting State

8. Extradition of a requested States own nationals

9.Refusal to extradite due to possible persecution

10.Consultation and cooperation

C.Draft article 11. Extradition

Chapter II

Non-refoulement

A.Principle of non-refoulement

B.Draft article 12. Non-refoulement

Chapter III

Mutual legal assistance

A.Short-form mutual legal assistance article

B.Long-form mutual legal assistance article

1. General obligation to afford mutual legal assistance

2. Cooperation when a MLAT exists between the States concerned

3.Cooperation when a MLAT does not exist between the States concerned

C.Draft article 13. Mutual legal assistance

Chapter IV

Victims, witnesses and other affected persons

A.Overview

B.Complaints by and protection of victims and others

C.Participation of victims in criminal proceedings

D.Reparation for victims

E.Draft article 14. Victims, witnesses and others

Chapter V

Relationship to competent international criminal tribunals

A.Potential for conflicts

B.Draft article 15. Relationship to competent international criminal tribunals

Chapter VI

Federal State obligations

A.Overview

B.Draft article 16. Federal State obligations

Chapter VII

Monitoring mechanisms and dispute settlement

A.Existing monitoring mechanisms

B.Potential monitoring mechanisms under a convention

1.Types of institutions

2.Types of procedures

C.Inter-State dispute settlement

1.Negotiation

2. Arbitration

3.Judicial settlement

4.Opting out of inter-State dispute settlement

D. Draft article 17. Inter-State dispute settlement

Chapter VIII

Remaining issues

A.Concealment of crimes against humanity

B.Immunity

C.Amnesty

Chapter IX

Preamble

Chapter X

Final clauses of a convention

A.Final clauses in the work of the Commission

B.Balancing of interests with respect to reservations to a treaty

C.Approaches taken in existing treaties to reservations

D.Reservations in the context of a convention on crimes against humanity

Chapter XI

Future programme of work

Annex I

Draft articles provisionally adopted by the Commission to date

Annex II

Draft articles and preamble proposed in the third report

IntroductionA.Work to date on this topic

At its sixty-sixth session in 2014, the International Law Commission placed the topic Crimes against humanity on its current programme of work and appointed a special rapporteur.[footnoteRef:3] At its sixty-seventh session in 2015, the Commission held a general debate concerning the Special Rapporteurs first report and provisionally adopted four draft articles with commentary.[footnoteRef:4] [3: See the report of the Commission on the work of its sixty-sixth session, Yearbook of the International Law Commission 2014, vol. II (Part Two), p. 265, para. 266.] [4: See the report of the Commission on the work of its sixty-seventh session, Yearbook ... 2015, vol. II (Part Two), p. 49, para. 113.]

At its sixty-eighth session in 2016, the Commission held a general debate on the Special Rapporteurs second report and provisionally adopted six additional draft articles with commentary.[footnoteRef:5] [5: See the report of the Commission on the work of its sixty-eighth session, Official Records of the General Assembly, Seventy-first session, Supplement No. 10 (A/71/10), paras.79-83.]

B.Debate in 2016 in the Sixth Committee

During the debate in the Sixth Committee in 2016, thirty-nine States (including one on behalf of the Nordic States) commented upon this topic,[footnoteRef:6] with views that generally favoured the Commissions work to date, stressing the overall importance of the topic[footnoteRef:7] and welcoming the draft articles adopted during the sixty-eighth session.[footnoteRef:8] Numerous States again expressed appreciation of the steps taken to ensure that the Commissions work does not conflict with existing instruments, in particular the 1998 Rome Statute of the International Criminal Court.[footnoteRef:9] Along these lines, several States expressed support for the Commissions use in certain instances of language similar to the Rome Statute, [footnoteRef:10] such as in draft article 5, paragraphs 2 and 3. [6: Presentations to the Sixth Committee on this topic were made by: Argentina, Australia, Austria, Belarus, Brazil, Chile, China, Croatia, Cuba, Czechia, El Salvador, Egypt, France, Germany, Greece, Hungary, Iceland (on behalf of the Nordic countries), India, Indonesia, Ireland, Israel, Japan, Malaysia, Mexico, The Netherlands, Peru, Poland, Portugal, Romania, the Russian Federation, Singapore, Slovakia, Slovenia, Spain, Switzerland, Sudan, the United Kingdom, the United States of America, and Viet Nam.] [7: See, for example, Official Records of the General Assembly, Seventy-first session, Sixth Committee, 25th Meeting (A/C.6/71/SR.25), para. 47 (statement of Croatia); ibid., para. 50 (statement of El Salvador). ] [8: See, for example, ibid., 24th meeting (A/C.6/71/SR.24), para. 69 (statement of Czechia); ibid., 26th Meeting (A/C.6/71/SR.26), para. 141 (statement of Slovakia). ] [9: See, for example, ibid., 29th Meeting (A/C.6/71/SR.29), para. 85 (statement of Argentina); ibid., 25th Meeting (A/C.6.71.SR.25), para. 90 (statement of Australia); ibid., 26th Meeting (A/C.6/71/SR.26), para. 35 (statement of Germany); ibid., 24th Meeting (A/C.6/71/SR.24) (statement of Iceland, on behalf of the Nordic countries); ibid., 26th Meeting (A/C.6/71/SR.26), para. 14 (statement of Mexico); ibid., 30th Meeting (A/C.6/71/SR.30), para. 5 (statement of Peru); ibid., 25th Meeting (A/C.6/71/SR.25), para. 92 (statement of Portugal); ibid., 24th Meeting (A/C.6/71/SR.24), para. 67 (statement of Switzerland); ibid., para. 73 (statement of the United Kingdom). ] [10: See, for example, ibid., 29th Meeting (A/C.6/71/SR.29), para. 85 (statement of Argentina); ibid., 27th Meeting (A/C.6/71/SR.27), para. 14 (statement of Ireland); ibid., 25th Meeting (A/C.6/71/SR.25), para. 74 (statement of Romania); ibid., 26th Meeting (A/C.6/71/SR.26), para. 106 (statement of Slovenia). ]

Several States welcomed the inclusion of an obligation to adopt national laws on crimes against humanity,[footnoteRef:11] noting the importance of the harmonization of national laws[footnoteRef:12] so as to allow for robust inter-State cooperation.[footnoteRef:13] States also expressed their support for the approach taken by the Commission on command responsibility,[footnoteRef:14] the inapplicability of a superior orders defence,[footnoteRef:15] and the inapplicability of statutes of limitations.[footnoteRef:16] At the same time, some States felt that draft article 7 on the obligation to investigate was unclear[footnoteRef:17] and that additional analysis might be given to the concept of universal jurisdiction[footnoteRef:18] and liability for legal persons.[footnoteRef:19] Additionally, some States pressed for the consideration of additional issues, such as extradition,[footnoteRef:20] mutual legal assistance, [footnoteRef:21] reparations for victims,[footnoteRef:22] and amnesty,[footnoteRef:23] while other States expressed a view that certain issues should not be included, such as civil jurisdiction[footnoteRef:24] or monitoring mechanisms.[footnoteRef:25] [11: See, for example, ibid., 25th Meeting (A/C.6/71/SR.25), para. 90 (statement of Australia); ibid., 26th meeting (A/C.6/71/SR.26), para. 89 (statement of Brazil); ibid., 24th Meeting (A/C.6/71/SR.24), para. 78 (statement of Hungary); ibid., para. 58 (