Crimes against humanity in the works of the International Law Commission on the draft articles on the prevention and punishment of crimes against humanity

Krzysztof Masło

doi:10.21697/priel.2019.8.2.01

Published: 2020-01-30

Vol. 8 No. 2 (2019)

Crimes against humanity in the works of the International Law Commission on the draft articles on the prevention and punishment of crimes against humanity

Krzysztof Masło

Polish Review of International and European Law

Section: Studies

https://doi.org/10.21697/priel.2019.8.2.01

Abstract

Crimes against humanity, besides war crimes, belong to the most frequently committed and prosecuted crimes of international law. Recently, the International Law Commission adopted draft Articles on the prevention and punishment of crimes against humanity, bridging the gap in international criminal law and in international cooperation between states. When discussing the draft Articles on the prevention and punishment of crimes against humanity, the International Law Commission did not act in a vacuum. The issue of understanding crimes against humanity and the obligations of states related to the prevention and punishment of these crimes has appeared in the works of the Commission since the 1950s, primarily in connection with the development of the draft Code of crimes against the peace and security of mankind and the statute of the International Criminal Court. Based on its previous experiences, the International Law Commission focused on four issues to be covered by the draft Articles: 1) definition of crimes against humanity; 2) the obligation of states to criminalise such crimes in domestic law; 3) the obligation of states to cooperate in the investigation, prosecution and punishment of these offences; 4) the duty of aut dedere aut judicare fortified by the perpetrator’s stay in the territory of the state party. Considering the broad support for the definition of crimes against humanity adopted in the ICC Statute and its complementary character, the International Law Commission adopted the definition of art. 7 of the ICC Statute. The works of the International Law Commission are focused on the obligations of countries related to prevention and punishment of crimes against humanity, especially: the obligation to criminalise crimes against humanity and to establish jurisdiction over those crimes. The International Law Commission also formulated a series of obligations of states with a procedural character in the draft Articles, for example, obligation to conduct prompt and efficient criminal proceedings, the purpose of which is to explain all the circumstances of the crime and to punish the guilty person or persons.

Keywords:

crimes against humanity, duress and necessity, genocide, international and hybrid criminal tribunals, ICC, International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, International Law Commission, International Military Tribunal, International Military Tribunal for the Far East, ICC Statut, Special Court for Sierra Leone, Special Panels for East Timor, UN Commission on War Crimes, universal jurisdiction, war crimes

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Masło, K. (2020). Crimes against humanity in the works of the International Law Commission on the draft articles on the prevention and punishment of crimes against humanity. Polish Review of International and European Law, 8(2), 9–44. https://doi.org/10.21697/priel.2019.8.2.01

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