Academic journal article Case Western Reserve Journal of International Law

The International Law Commission's Proposal for a Convention on the Prevention and Punishment of Crimes against Humanity

Academic journal article Case Western Reserve Journal of International Law

The International Law Commission's Proposal for a Convention on the Prevention and Punishment of Crimes against Humanity

Article excerpt

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.

I. 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. …

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