The International Law Commission's First Draft Convention on Crimes Against Humanity: Codification, Progressive Development, or Both?

Document Type

Article

Publication Date

2020

Abstract

In 2017, the International Law Commission (“ILC”) which was established by the UN General Assembly in 1947 to assist States with the promotion of (1) the progressive development of international law and (2) its codification, adopted on first reading a draft convention on crimes against humanity which it transmitted to States for comments. The draft convention seeks to help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text, as submitted to States in August 2017, using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC selects new topics and the reasons why it decided to study crimes against humanity with the view to proposing a convention. Part III discusses positive features of the draft crimes against humanity convention, highlighting key aspects of each of the draft articles. Part IV examines challenges posed by the ILC’s definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows an established methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law.

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