The International Law Commission (ILC) has from 2015 been in the process of drafting and adopting draft articles on crimes against humanity, with a view to their potentially forming the basis of a future treaty addressing these crimes. To date, 15 Draft Articles have been adopted, together with a provisional preamble and annex.1 For convenience, these will be referred to hereafter as the ‘Draft Convention’.
The Draft Convention is wide ranging in its scope. To describe a selection of provisions in its most recent 2017 iteration, Draft Article 5 prohibits the refoulement of individuals to other States where ‘substantial grounds’ exist to believe they will be subject to crimes against humanity there, Draft Article 6 prescribes an obligation to criminalise crimes against humanity under domestic law, and Draft Article 12 deals with victims’ access to justice and compensation.
This piece will focus on the content chosen by the ILC for Draft Article 15, the Draft Convention’s inter-State dispute settlement provision. The routes envisaged for States to resolve disputes pertaining to their obligations within a future treaty provide food for thought on the development of international human rights protections when compared with the Article’s equivalent in the Genocide Convention 1948,2 Article IX. The comparison also sheds light on the issue of reservations to the Genocide Convention.
Draft Article 15 reads:
• States shall endeavour to settle disputes concerning the interpretation or application of the present draft articles through negotiations.
• Any dispute between two or more States concerning the interpretation or application of the present draft articles that is not settled through negotiation shall, at the request of one of those States, be submitted to the International Court of Justice, unless those States agree to submit the dispute to arbitration.
• Each State may declare that it does not consider itself bound by paragraph 2 of this draft article. The other States shall not be bound by paragraph 2 of this draft article with respect to any State that has made such a declaration.
• Any State that has made a declaration in accordance with paragraph 3 of this draft article may at any time withdraw that declaration.
All State parties will be obliged to engage in negotiations to resolve disputes relating to the treaty’s interpretation or application, with arbitration and submission of disputes to the International Court of Justice (ICJ) should disputes escape resolution at each juncture, assuming neither State involved has opted out of Draft Article 15(2). The ILC’s commentary on the Draft Article 15(3) opt-out illustrates that the decision to formulate the provision as an opt-out rather than an opt-in was taken to avoid the empirically ‘lower exposure to compulsory dispute settlement’ that opt-ins encourage. The ILC has modelled Draft Article 15’s structure based on similar existing provisions, as in the UN Convention against Corruption - the obligation to negotiate cannot be opted out of, only arbitration and submission to the ICJ.
Contrast the equivalent Article IX of the Genocide Convention:
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
A distinction apparent between Draft Article 15 and Article IX is the latter’s inclusion of disputes relating to the ‘fulfilment’, rather than only interpretation and application, under its purview.
In the nearly 70 years between the coming into force of the Genocide Convention and the ILC’s 21st century work on the Draft Convention, the most significant innovation in the international protection of human rights has been the establishment of the International Criminal Court (ICC). The ICC’s founding Rome Statute grants the court jurisdiction to try individual perpetrators of genocide, war crimes and crimes against humanity,3 as well as the crime of aggression from July 2018 onwards.4
The ICC stands as a dramatic example of the increasing focus of international law on the individual. As was already observed by Bruno Simma and Andreas Paulus in 1998, ‘the [international] system as a whole increasingly permeates state boundaries for the sake of protection of individual and group rights’.5 It seems likely that the development of international criminal law in line with this trend at least partly explains the approach of the ILC with respect to the Draft Article 15, as compared to Article IX of the Genocide Convention.
Both the Draft Convention and the Genocide Convention focus on obligations subsisting on the level of States rather than individuals. Both instruments bind States to ensuring the atrocities they are concerned with are punished through their national criminal laws, and that States cooperate between themselves to bring perpetrators to justice through national judicial systems. The Rome Statute treats individuals themselves as legal subjects of international law - States are bound to support the institutional framework the treaty creates to punish individuals who violate their own international obligations as individuals.
Hence, it seems apparent that in light of the relatively novel obligations binding on individuals which have developed, the ILC has adjudged that the most beneficial role which a Crimes Against Humanity Convention might serve would be to foster cooperation between States and the harmonisation of national laws, rather than enabling the punishment of States which commit crimes against humanity. Draft Article 15 does not envisage States bringing other States to the ICJ for committing crimes against humanity,6 perhaps because a separate system now exists to hold individuals to account at the ICC, and this system should serve in any case as a more effective deterrent against State involvement in atrocities by targeting officials themselves. In other words, now that the ICC exists, the ILC’s drafting reflects a policy choice based on an apparently decreased need to attempt to hold States themselves responsible before the ICJ for a failure to fulfil basic human rights obligations.
In DRC v Rwanda, the ICJ held that Rwanda’s reservation to Article IX of the Genocide Convention was effective in preventing the Court from exercising jurisdiction through the provision over a dispute arising over the actions of Rwandan forces on the DRC’s territory. In doing so, the ICJ drew a distinction between the substantive provisions of the Convention and procedural provisions. It decided that the ‘[exclusion of] a particular [procedural] method of settling a dispute relating to the interpretation, application or fulfilment of the Convention’ by Rwanda was not incompatible with treaty’s object and purpose.7
The artificiality of the substantive / procedural distinction which underpinned the Court’s reasoning was identified in the joint Separate Opinion of Judges Higgins, Kooijmans, Elarby, Owada and Simma. Those judges correctly identified that for certain treaties which established a monitoring body, the procedural obligation to periodically submit human rights reports for examination would be crucial to their object and purpose.8 Judge Koroma went further in issuing a Dissenting Opinion, arguing that given the erga omnes nature of the obligations of the Genocide Convention, which entailed that all States had an equal interest in the Convention’s fulfilment, together with the moral gravity of the crime of genocide, Rwanda’s reservation could not be compatible with the treaty’s object and purpose. As he explained, ’[d]enying recourse to the Court essentially precludes judicial scrutiny into the responsibility of a State in a dispute relating to the violation of the Convention’ - a State that did not submit to the ICJ’s jurisdiction was therefore not cooperating to eliminate genocide.9
With respect, it is submitted that Judge Koroma’s dissent sets out a more desirable position than the judgement of the majority. His position is reinforced when bearing in mind the aforementioned policy choice of the ILC taken in drafting the Draft Crimes Against Humanity Convention’s Article 15. Now that the ICC exists (and assuming its functioning is supported in full by the international community), it is reasonable for the Draft Convention to leave punishing non-fulfilment to the workings of international criminal law. Indeed, Draft Article IX even allows States to opt out of arbitration and ICJ proceedings on interoperation and application. Dissimilar circumstances abounded at the time of the Genocide Convention’s drafting and coming into force. Without a truly fully-fledged international criminal tribunal in existence, part of the object and purpose of the Genocide Convention as initially intended must have included holding States committing genocide to account through the ICJ, as part and parcel of the ’co-operation required "in order to liberate mankind from such an odious scourge”’.10 The consideration of the wider international legal landscape of the time this interpretation would entail is mutatis mutandis in line with other ICJ jurisprudence. For example, in Russia v Georgia, the Court supported its literal analysis of the meaning of ‘dispute’ in Article 22 of the Convention on the Elimination of all forms of Racial Discrimination by taking into account the use of the word in other treaties concluded around the same time.11
True as it may be that the DRC v Rwanda judgement was issued in 2006, after the Rome Statute’s coming into force in 2002, it would be dubious to suggest that any evolutionary interpretation or interpretation based on States’ ‘subsequent practice’12 of the Genocide Convention would enable a decrease in the rigour of its obligations since 1948 as a result of the ICC’s establishment. This is especially true considering the sensitivity which the international system has displayed to ‘elementary considerations of humanity’,13 which the jus cogens prohibition of genocide14 undoubtedly evokes.
The work of the ILC on the Draft Crimes Against Humanity Convention is undoubtedly of vital importance. The project contributes to improving human rights safeguards in response to the gross abuses which still take place today. And as this piece has attempted to show, the Draft Convention also facilitates a fresh look on how the Genocide Convention has been, and should be, interpreted: reservations to the Genocide Convention’s Article IX are incompatible with its object and purpose.