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.