The IBA War Crimes Committee’s submissions and recommendations to major multilateral conventions on atrocity crimes

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Shannon Raj Singh

Visiting Fellow of Practice, Oxford Programme on International Peace & Security, The Hague

shannon.raj@bsg.ox.ac.uk

Kakoly Pandé

36 Group, London

kpande@36crime.co.uk

It is not often that we are able to witness the development of the international legal framework governing atrocity crimes in real time – and it is even rarer to have the opportunity to assist in that development. Over the past two years, the IBA’s War Crimes Committee has been actively involved in efforts to strengthen and improve the drafts of two major multilateral conventions focused on atrocity crimes. Both these conventions currently face critical junctures with heavy stakes. Should they survive negotiation and ultimately be adopted by the international community, they carry with them significant implications for the prevention and punishment of mass atrocities.

The Convention on the Prevention and Punishment of Genocide was unanimously adopted by the United Nations General Assembly in December 1948, yet more than 70 years on, there is no analogous multilateral convention for crimes against humanity. Its absence in the international criminal law architecture has been glaring: although crimes against humanity are defined in the Rome Statute and the statutes of several ad hocand hybridtribunals, there is little consistency among states themselves in their domestic definitions of the crime, inhibiting cooperation in prosecution, mutual legal assistance and extradition. Furthermore, the absence of a convention creates a ‘state responsibility gap’, with little agreement as to the content of basic state obligations on crimes against humanity, and no compromissory clause to permit inter-state litigation in case those obligations are breached.

The Prevention and Punishment of Crimes Against Humanity

That all could change with the International Law Commission’s (ILC) draft articles on the Prevention and Punishment of Crimes Against Humanity, which could form the basis for the world’s first multilateral convention on the crime. The draft is the result of years of work by the ILC, which has included the subject of crimes against humanity in its programme of work since 2014. Its decision to do so followed the remarkable work of the Crimes Against Humanity Initiative, established by the Whitney R Harris World Law Institute at Washington University School of Law, and led by War Crimes Committee board member Leila Sadat. Today, the draft convention consists of 15 articles, a preamble, and an annex, and aims at requiring states to both criminalise crimes against humanity under their national laws, and commit to prosecute or extradite (aut dedere aut judicare) perpetrators residing in their territory, regardless of whether the crime was committed abroad by or against nationals of other states. Following a comprehensive drafting phase, in 2018 the ILC invited submissions from governments, civil society, and academic institutions, entering an extensive comments period aimed at improving and finalising the draft.

Responding to this invitation, Federica D’Alessandra, the former Co-Chair of the War Crimes Committee, commissioned Shannon Raj Singh to be the Committee’s Special Rapporteur on the ILC Draft Articles on Crimes Against Humanity. Over the course of 2018, Singh drafted a detailed submission on behalf of the War Crimes Committee, articulating specific recommendations to strengthen and clarify the draft articles. Published in November 2018, the War Crimes Committee’s submission included recommendations that the provision on state responsibility is strengthened, that a definition of ‘victim’ is included to prevent states from refusing to extend protections to those deserving of them, and that the drafters strengthen the preventive dimension of the obligation to investigate crimes against humanity. In addition, the Committee supported the retention of the Rome Statute’s definition of the crime, yet urged reconsideration of the Rome Statute’s narrow definition of ‘gender’, requesting that it be either broadened or removed entirely. In the spring of 2019, Professor Sean D Murphy, Special Rapporteur for the ILC on Crimes Against Humanity, published his Fourth Report on Crimes Against Humanity, citing the War Crimes Committee’s submissions and recommendations more than a dozen times.

The ILC held its final negotiations and discussions on the draft convention during its 71st Session in 2019. In May 2019, the War Crimes Committee held a side event to the ILC session at the Palais des Nations in Geneva, cosponsored by the Permanent Missions of the Principality of Liechtenstein and the Kingdom of the Netherlands. The event provided the opportunity for a high-level expert discussion on the importance of the draft Convention to the international community, as well as providing discussion on provisions which still required clarification and revision. Moderated by D’Alessandra, the panel included perspectives from academia, government, and civil society, with remarks by Leila Sadat, Robert Roth, Vincent de Graaf, Hugo Relva, and Shannon Raj Singh.     

At the close of the ILC’s 71st session, the draft convention on Crimes Against Humanity was referred to the General Assembly, where it remains under consideration by the international community. The need for adoption is urgent: while the failure to prevent and punish genocide against the Rohingya is litigated before the International Court of Justice, there is no ability to pursue similar litigation for crimes against humanity. Although atrocities continued unabated, vast numbers of states either lack any domestic legislation on crimes against humanity or fail to use consistent definitions of the crime. The result is paralysis, delay, and impunity, at a time that the world can little afford it.

The MLA Initiative

Alongside the draft convention on Crimes Against Humanity, another international initiative aimed at reducing impunity for atrocity crimes is currently underway. During the 16th Assembly of State Parties in December 2017, a side event was organised by the Permanent Missions of Belgium and Senegal to the United Nations, focused on strengthening the role of national jurisdictions in fighting impunity for grave crimes. The aim was to discuss a mutual legal assistance initiative to enable interstate assistance for evidence and information-gathering relating to international crimes. A further event followed the next day, involving Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia (now described as the ‘core six states’), entitled ‘On the Joint Initiative for a Multilateral Treaty on Mutual Legal Assistance and Extradition for the Most Serious International Crimes’. These events formed the basis for what has become known as the ‘MLA Initiative’, a state-led effort to create a multilateral convention specifically focused on mutual legal assistance and extradition for atrocity crimes.

Led by Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia, and supported by more than 70 states,, the MLA Initiative aims to promote high-level cooperation in the investigation and prosecution of atrocity crimes. Following two preparatory conferences held in the Netherlands, a diplomatic conference was scheduled for June 2020 in Ljubljana, Slovenia, to debate and potentially adopt the Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes Against Humanity and War Crimes. In light of the Covid-19 pandemic, the conference has been postponed to 2021.

According to its proponents, the MLA Initiative is intended to be complementary to the draft convention on crimes against humanity, with the benefit of being highly focused on international legal cooperation in the investigation and prosecution of atrocity crimes. On the other hand, the Initiative has operated outside of the UN treaty-making process. While this is likely to be to its benefit in terms of process expediency, it may come at the expense of the comprehensive scrutiny and collective discussion that the ILC process allows. Although the MLA Initiative perceives itself and the draft convention on crimes against humanity to be mutually supportive, it remains to be seen how the two initiatives can develop separately yet coordinate their work in pursuit of shared goals.

Over the coming months, the War Crimes Committee, again under Singh’s leadership and with the assistance of Committee member Kakoly Pandé, will be drafting a submission on the MLA Initiative. Its aim is to encourage harmonisation of the Initiative with the work carried out to date on the draft convention on crimes against humanity, and to ensure consistency with other major multilateral conventions and international legal developments. In this endeavour, the War Crimes Committee seeks to draw on the extensive expertise of its members, whose backgrounds include a range of experience, including as prosecutors, defence counsel, victims’ rights advocates, judges, academics, and barristers specialised in atrocity crimes litigation.

Ultimately, both initiatives stand to make substantial inroads into the fight against impunity for mass atrocities: the former aimed specifically at crimes against humanity, the latter aimed at atrocity crimes more broadly, but focusing in more narrowly on issues of inter-state cooperation and assistance. At a time when the international community is widely perceived to be in a ‘human rights recession’ and improvement is urgently needed, both initiatives are welcome efforts to advance the international legal framework governing atrocity crimes.

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