Enhancing State Capacity: An Analysis of the Draft Articles on Prevention and Punishment of Crimes Against Humanity 2019 and the Attendant Consequence For State Parties – Adeyinka Adegbite

To highlight the opportunity which the Draft Articles on Prevention and Punishment of Crimes Against Humanity present for progressive development of international criminal law, Adeyinka Adegbite outlines how the Draft Articles contribute to enhanced inter-State cooperation and capacity of national legal to prevent, prosecute and punish crimes against humanity.

Background to the Draft Articles

The motivation for developing the Draft Articles on Prevention and Punishment of Crimes against Humanity (‘Draft Articles on Crimes against Humanity’) by the International Law Commission (ILC), the expert body of the United Nations (UN) with responsibility for developing and codifying international law, was an awareness of the imperative to create a single international legal instrument which provided for the incorporation of the definition of crimes against humanity in national laws; imposed obligations on States to prevent the commission of crimes against humanity; and, conferred national jurisdiction to prosecute perpetrators of crimes against humanity. The first report of the ILC Special Rapporteur for the crimes against humanity stream of work in 2015 initiated what would later become the Draft Articles on Crimes against Humanity.

The comments of the government of States, including Australia, and other UN special agencies and international non-governmental organisations enriched the body of texts aimed at developing the law on this particular category of international crimes. It is important to note that the Charters, Statutes and instruments setting up International Criminal Tribunals, namely the International Military Tribunals for Nuremberg and Tokyo and the International Criminal Tribunal for Former Yugoslavia, among others, included a description of the crimes regarded as crimes against humanity. These provisions were further developed following the entry into force in 2002 of the Rome Statute of the International Criminal Court (‘Rome Statute’).

Article 7(1), (2) and (3) of the Rome Statute set out crimes against humanity as one of the categories of international crimes within the jurisdiction of the International Criminal Court (ICC). The Rome Statute appears to be richer in the provision concerning the category of crimes against humanity when compared with the earlier instruments of International Military Tribunals (IMT), as the definition of these crimes under the Rome Statute are broader in scope. 

Further, the principle of positive complementarity, a novel provision of the Rome Statute in Article 17, lends a two-pronged approach to the prosecution and punishment of crimes against humanity. The principle was a departure from the approach the IMT instruments, which gave priority to the jurisdiction of the IMTs over national jurisdiction. In further emphasising the importance of national jurisdiction, especially where the legal and judicial structures are available and the State is willing and able to undertake such prosecution, the ICC may offer assistance to the prosecuting State to the extent that the perpetrators of these crimes are prosecuted. Whilst a State shall cooperate with the ICC under Article 93(1), Article 93(10) imposes a discretionary duty on the ICC to cooperate with a prosecuting State, stating that the ICC may, upon request, cooperate and provide assistance to a State Party. Nonetheless, the recognition given to national jurisdiction is indeed very admirable. 

The Draft Articles

It is opined that in its own work on crimes against humanity, the ILC: 

  • Recognised that State parties must develop their national laws in the wake of deplorable lawlessness and commission of grave breaches of peremptory norms of general international law (jus cogens) within their own jurisdiction; and,
  • Assessed the events which have shown the need to elaborate on the obligations on State parties to the Rome Statute to prevent and prosecute crimes against humanity by way of a specific treaty. 

Hence, the genesis of the Draft Articles on Crimes against Humanity; the imperative to ensure State parties live up to their obligations to prevent and prosecute these crimes which occur within their jurisdiction 

The Draft Articles contain a total of 15 Articles and an Annex. The initial articles set out the parameters of the proposed law; Article 1 limits the scope of the law to only crimes against humanity and Article 2lists the particulars and definitions of crimes against humanity. Notably, Article 2(3) is without prejudice to any broader definition of these crimes under international instruments, customary international law or national law. This provision is absent from Article 7 of the Rome Statute relating to crimes against humanity.

Hereafter, the Draft Articles will be outlined according to their two objectives: inter-State cooperation on the prevention of crimes against humanity, and investigation, apprehension, prosecution, extradition and punishment in national legal systems of persons who commit such crimes (ILC, Draft Articles on Crimes Against Humanity, with commentaries, UN Doc A/74/10, p 3). 

Capacity of national legal systems to investigate and prosecute

Article 3 reiterates the specific obligations of a State, including non-involvement in the commission of crimes against humanity and an undertaking to prosecute such crimes. It also invalidates any justification that may arise for the commission of these crimes under the guise of internal political instability, armed conflict or public emergency. Article 4 provides for the prevention of the commission of crimes against humanity by requiring States to establish appropriate legislative and judicial structures and cooperate with other States, intergovernmental organisations and other organisations. The appropriate legislative and judicial structures are elaborated in Article 6, providing that States must: 

  • Criminalise the commission or attempt to commit, induce, aid or abet the commission of crimes against humanity 
  • Ensure that the prosecution of crimes against humanity is not subject to any statute of limitation under their national laws;  
  • Legislate for individual criminal responsibility; and, 
  • Ensure adequate punishment for the commission of crimes against humanity.

To prosecute such crimes, States are obligated to assert territorial or nationality jurisdiction, where applicable, over the commission of such crimes (Article 7).States must also ensure adequate investigation by competent authorities into the commission of crimes against humanity within its territory (Article 8). Finally, Article 12 outlines the rights of and standards of protection owed to victims, witnesses and related parties, which includes a right to complain to the competent authorities, protection from ill-treatment for complainants, victims, witnesses and their relatives, and victims’ rights to obtain redress for their sufferings under national laws.   

In practical terms, the implementation of these articles may pose a problem for some States even when they assent to or ratify a binding treaty which incorporates the Draft Articles. There are possible limitations such as the lack of expertise in investigating some crimes, the problems of delay in the administration of justice and legal technicalities in some jurisdictions of the world, among other things. 

Inter-State cooperation

To enhance inter-State cooperation on the prevention of crimes against humanity, under Article 9,a State must take custody of an alleged perpetrator where the person is within its territory, for possible extradition, and where necessary, inquire into the facts of the allegation.Article 10reiterates the obligation to either extradite or prosecute the alleged offender (aut dedere aut judicare), which is emphatic of the State obligation to cooperate in international criminal jurisprudence. At the same time, States must provide fair treatment to the alleged offender, including respect for his or her rights under national and international law and visitation rights (Article 11). 

The process of extradition of an alleged perpetrator of crimes against humanity is outlined in Article 13. Article 14 establishes a legal framework which addresses potential obstacles to mutual legal assistance, provided that such request is not contrary to its national law. The Annex to the Draft Articles prescribes the procedure for mutual legal assistance under Article 14, detailing the process for making and responding to a request; the use of the information by a requesting State; obtaining and transferring testimony of a person from the requested State; and, the liability for cost for executing a request.

For the settlement of disputes between States, recourse can be had to negotiation, arbitration or judicial settlement by the International Court of Justice (ICJ) (Article 15). However, a State party may make a reservation to the submission of disputes arising under the Articles to the ICJ. A reservation can also be withdrawn by the reserving State at any time.  

A probable challenge to the operation of the provisions on inter-state cooperation is that, given the sensitivity and gravity of allegation of crimes against humanity, States may be unwilling to cooperate with a particular request for legal assistance. The current framework in the Annex provides reasonably wide scope for a State to refuse a request (see, in particular, Article 8 of the Annex). Also to note, the Draft Articles place the financial burden of using and transferring testimony to a requesting State on the requested State. It is foreseeable that the requested State, in this scenario, may refuse such call for extradition which will eventually impose a burden to bear any cost for the requesting State. 

The ILC has now recommended the Draft Articles to the General Assembly of the United Nations as a basis for developing a binding Convention. The consequence of the Draft Articles on signatories, if they enter into force, would be to create specific obligations on State parties to develop their national laws and legislate on crimes against humanity for investigation by their competent authorities and enforcement by their courts. Save for some of these probable challenges, it is believed that by providing an avenue for domestic courts to be an effective forum for prosecuting crimes against humanity in addition to the ICC, the future developments arising from the Draft Articles will be significant.  

Adeyinka Adegbite is admitted to practice as a Barrister and Solicitor of the Supreme Court of Nigeria. He is an Associate Counsel at Tayo Oyetibo LP, a top-tier Law Firm in Lagos, Nigeria and also engaged as a Junior Research Fellow at the Lex Lata Center for International Law and Comparative Constitutionalism in Africa. He is currently undertaking postgraduate studies for the conferment of the degree of Master of International Law and Diplomacy at the University of Lagos, Nigeria. He is a member of the International Law Association (Nigerian Branch).

Suggested citation: Adeyinka Adegbite, ‘Enhancing State Capacity: An Analysis of the Draft Articles on Prevention and Punishment of Crimes Against Humanity 2019 and the Attendant Consequence For State Parties’ on ILA Reporter (30 June 2021) <https://ilareporter.org.au/2021/06/enhancing-state-capacity-an-analysis-of-the-draft-articles-on-prevention-and-punishment-of-crimes-against-humanity-2019-and-the-attendant-consequence-for-state-parties-adeyinka-adegbite/>