THE INTERNATIONAL LAW COMMISSION'S PROPOSAL FOR A CONVENTION ON THE PREVENTION AND PUNISHMENT OF CRIMES AGAINST HUMANITY.

Author:Murphy, Sean D.
Position:2018 Klatsky Endowed Lecture in Human Rights

My thanks to Case Western University School of Law for inviting me to give this year's Klatsky Endowed Lecture on Human Rights. It is a great pleasure to be here with you today and to spend some time with the Law School's students, faculty, alumnae, and friends.

It is also a great honor to receive the Cox International Law Center's Humanitarian Award for Advancing Global Justice. Given the impressive stature and renown of prior recipients of the Award, I am not quite sure how I slipped past your selection committee! But I'm very grateful that I did. Indeed, given that Dean Michael Scharf and many of Case's law professors are leaders in the field of international and comparative law, this honor is all the more special.

My topic today concerns "The International Law Commission's Proposal for a Convention on the Prevention and Punishment of Crimes against Humanity." I thought I would address the topic by discussing:

* first, the historical emergence of the concept of crimes against humanity;

* second, the fact that such crimes continue to be committed today in various parts of the world;

* third, the need to combat fully these crimes by strengthening national laws and national jurisdiction, as well as creating a legal structure for inter-State cooperation on extradition and mutual legal assistance;

* fourth, the International Law Commission's current project on drafting a new convention in this regard, and

* finally, concluding thoughts on the prospects for completion of the ILC's project in 2019, and its successful adoption and implementation by States.

  1. HISTORICAL EMERGENCE OF THE CONCEPT OF "CRIMES AGAINST HUMANITY"

    Let me begin by noting the emergence of the concept of "crimes against humanity" over the past century. The crux of the concept is to identify, stigmatize, prevent and punish heinous acts that are committed on such a scale that they are not just acts committed against one or a few persons, but against a civilian population as such. From its origins in the early part of the 20th century, (1) this concept of "crimes against humanity" was generally seen as having two broad features. (2) First, the nature of such crimes is so heinous that it is viewed as an attack on the very quality of being human. (3) Second, the scale of such crimes is so heinous that they are an attack not just upon the immediate victims, but against all humanity, and hence the entire community of humankind has an interest in their prevention and punishment. (4)

    In the aftermath of World War I, thought was given to whether there should be international prosecutions of the senior leaders of the defeated powers for heinous acts committed against their own populations, yet "crimes against humanity" were not included in Articles 228-29 of the Treaty of Versailles; (5) those provisions relate solely to war crimes. Even so, the seeds were sown for such prosecutions in the aftermath of World War II, and "crimes against humanity" were placed within the jurisdiction of the international military tribunals established at both Nurnberg (6) and Tokyo. (7)

    The principles of international law recognized in the Nurnberg Charter were affirmed in 1946 by the U.N. General Assembly, (8) codified by the U.N. International Law Commission in 1950, (9) and then further developed by the Commission in its 1954 Code of Offenses against the Peace and Security of Mankind. (10) Such steps firmly entrenched "crimes against humanity" in the pantheon of crimes of the greatest international concern, alongside genocide and war crimes. But while there were hopes in the 1950's for the establishment of a permanent international criminal court, those hopes were unfulfilled, and the prosecution of such crimes, if they were to occur, was left to national jurisdictions. In that regard, a modest 1968 Convention was adopted which called upon States to criminalize nationally "crimes against humanity" and to set aside statutory limitations on prosecuting the crime; that convention ultimately attracted the adherence by fifty-five States. (11)

    Yet many States did not adopt national laws on crimes against humanity and only a few moved forward with prosecutions when alleged offenders were identified. The prosecutions that typically come to mind are the Eichmann and Demjanjuk cases in Israel, (12) the Menten case in The Netherlands, (13) the Barbie and Touvier cases in France, (14) and the Finta and Munyaneza cases in Canada. (15) In some circumstances the issue of crimes against humanity arose in the context of national proceedings other than prosecutions, such as extradition (16) or immigration (17) proceedings.

    Instead of focusing on developing national laws regarding such crimes, the end of the Cold War brought new hopes for the establishment of an international criminal court, which would have jurisdiction over crimes against humanity. In 1993, the U.N. Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY), which included crimes against humanity as part of the ICTY's jurisdiction. (18) In 1994, the U.N. Security Council established the International Criminal Tribunal for Rwanda (ICTR), which similarly included such crimes in the ICTR's jurisdiction. (19) And finally, in 1998 governments adopted the Rome Statute (20) establishing International Criminal Court (ICC), which provides in Article 5(l)(b) that crimes against humanity are within the jurisdiction of the ICC. (21)

    Rome Statute Article 7(1) defines "crimes against humanity" as murder, extermination, enslavement, deportation, torture, sexual violence and various other inhuman acts "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack." (22) Article 7(2) further clarifies that such an attack "means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such acts." (23) In addition to the jurisdiction of the ICTY, ICTR and ICC, crimes against humanity have featured in the contemporary jurisdiction of "hybrid" tribunals that contain a mixture of international law and national law elements, such as the Special Court of Sierra Leone (24) or the Extraordinary Chambers in the Courts of Cambodia. (25)

    All told, this historical arc has led us to a place where several features of the contemporary concept of crimes against humanity may be identified. A crime against humanity is an international crime that can be committed by an individual whether or not the national law of the territory in which the act was committed has criminalized the conduct. The crime is directed against a civilian population and hence has a certain scale or systematic nature that generally extends beyond isolated incidents of violence or crimes committed for purely private purposes. The crime concerns the most heinous acts of violence and persecution known to humankind. The crime may be connected with an armed conflict, but that need not be the case; crimes against humanity can occur in peacetime. The crime can be committed within the territory of a single State or can be committed across borders. Finally, the crime can be committed by a government, but can also be committed by other actors, including rebel movements, militias, or terrorist organizations. (26)

  2. CONTINUED COMMISSION OF CRIMES AGAINST HUMANITY TODAY

    While the development of the concept of crimes against humanity is an important intellectual achievement of the past century, and the development of international courts and tribunals an important institutional development, it is sadly the case that crimes against humanity continue to occur today, on a daily basis, in various parts of the globe. With this audience, I do not need to run through all the places in which such crimes are occurring, as you can read about them every day in the newspaper or online.

    But at least consider the following. At the outset of our twenty-first century, atrocities committed in Sudan were front page news, (27) though now, you have to look a bit harder to see that such atrocities continue, with perhaps some 200,000 civilian deaths over the past two decades. A recent report by the U.S. government, for example, found that:

    Government forces, government-aligned groups, rebels, and armed groups committed human rights abuses and violations throughout the year. The most serious human rights abuses and violations included: indiscriminate and deliberate bombings of civilian areas; ground attacks that included the killing and beating of civilians, sexual and gender-based violence, forced displacement, looting and burning entire villages, and destroying the means necessary for sustaining life; and attacks on humanitarian targets, including humanitarian facilities and peacekeepers. (28) Atrocities in Sudan were, to a certain extent, displaced in the press by atrocities in Syria, after that country descended into civil war in 2011. By some estimates, more than 500,000 Syrian civilians have died in that conflict, and this in a country whose population is about one-fifteenth that of the United States. Perhaps the most notorious incidents involve the use of chemical weapons, but the widespread attacks on civilians by various means is such that it likely will take generations for the country to recover. (29) Not all such atrocities can be laid at the feet of the Syrian government. Some non state actors, and most notably the Islamic State (or ISIS, ISIL, or Daesh), also have inflicted terrible harm upon civilians, in both Syria and Iraq, including attacks on religious groups, journalists, and others. (30)

    Today's front-page stories are mostly about the treatment of the Rohingya people in Myanmar, who have been exposed to brutal violence by Myanmar military and paramilitary units, and forced to flee from their homes to the point of leaving the country...

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