CRIMES AGAINST HUMANITY: A CRITICAL ANALYSIS OF DRAFT ARTICLES OF INTERNATIONAL LAW COMMISSION (ILC)
Crimes against humanity are widely accepted to be crimes on an international level that are so heinous that they shock the collective consciousness of entire humankind. These crimes are so horrifying that they affect not only the immediate victims but the whole mankind and thus the entire humanity has interest in the prevention and punishment of these crimes. Crimes against humanity consists of various inhumane acts such as murder, extermination, enslavement, torture, rape, enforced disappearance, among others, when they are “committed as part of a wide spread or systematic attack directed against any civilian pursuant to a state or organizational policy”, according to the International Criminal Court (ICC).
Unlike war crimes, crimes against humanity were never codified in a specialized convention and hence, there was a need for such a dedicated convention to close a crucial gap in international law. As a result of a global effort, international community may soon have a dedicated global convention on the prevention and prohibition of crimes against humanity. In August 2019, The United Nations’ International Law Commission (ILC) presented the final text of draft Articles on the proposed international convention on crimes against humanity. This initiative is a much awaited step as such a convention is desirable to make it obligatory on the states to prevent crimes against humanity in their national legislation. With no national laws on crimes against humanity states are considered as unable to investigate and prosecute the perpetrators of crime against humanity. Even if some states
Have some kind of laws to prevent such crimes, only a few have adopted the exact definition of crimes against humanity as found in the Rome Statute of the International Criminal Court. The jurisdiction of the ICC remains vague by the adoption of such inappropriate definitions. Therefore, there is an urgent requirement to adopt a mutually accepted definition to improve legal parity in various national jurisdictions.However, it is also imperative to analyze the potential of the draft Articles to prohibit and punish crimes against humanity and whether they will actually serve the desired purpose of curbing such crimes.
In drafting the articles, the commission referred to existing treaty regimes and borrowed concepts that were hitherto widely accepted by a number of states. Consequently, efforts were also made to complement the Rome Statute. The draft articles define crime against humanity in concurrence with Article 7 of the Rome Statute with only minor modifications. The definition adopted by the ILC is a progressive one, but the commission could have used this opportunity and added some more offences in ‘prohibited acts’. Forms of crimes against humankind keep evolving and so the definition should also evolve with time. By not modifying the definition any further, the commission ignored the challenges that have surfaced in the recent past. For instance, the commission failed to consider including ‘terrorist activities’ in the prohibited acts even though the world has witnessed a colossal increase in terrorist activities since the Rome Statute was passed in 2002. Terrorist activities meet all the requirements of the definition to be regarded as a prohibited act, i- e- these acts are always in the nature of systematic attacks on civilian population, with the knowledge, in pursuant to organizational policy of any terrorist group. Thus, terrorist activities should have been added in the definition of crimes against humanity recognizing the need for continued evolution of crime.
At the procedural level, the commission has tried to do away with any kind of impunity/exemption for the perpetrators of crimes against humanity. Ending all avenues of impunity, draft Article 6 mandates the States to criminalize every act of crime against humanity in their national law and mandates non-exclusion of any person on the grounds of official capacity. Thus, even superior orders, civil or military, shall not be a ground to exclude criminal liability of any person. According to draft Article 9 & 10, the investigating State will indicate whether it intends to extradite or prosecute the offender. There is a significant lacuna in draft Article 10 wherein it provides that if a State decides to prosecute the alleged offender then the State authorities should take the decision in the same manner as they decide in other matters of prosecution in their national law. For example, if a State’s legislation has heedless discretion for withdrawal of prosecution (as in India it can be found under Sec.321 of the Code of Criminal Procedure), then according to draft Article 10, it can be misused by the states to initiate a sham prosecution and then withdraw from prosecution. This way a State might extend indirect impunity to an alleged offender and as a consequence the main aim of the proposed convention- to end all impunities- would be defeated. This lacuna can be fixed by adding one provison to the draft Article that the ethos of international law should not be contradicted by such national law.
A perusal of the draft articles indicate that the commission has made great efforts to minimize the avenues of impunity for the culprits of crimes against humanity. It has been made obligatory for the States to adopt all legislative, executive, administrative and judicial measures to prohibit, prevent and punish crimes against humanity.The principle of “either extradite or prosecute”, if not misused by rogue States, like pakistan is an effective provision for those States who work in good faith. If the draft articles are implemented in letter and spirit, with few modifications, it will become more widely acceptable and could be effective in preventing and punishing crimes against humanity.
