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Second Report on Crimes Against Humanity GW Law Faculty Publications & Other Works Faculty Scholarship 2016 Second report on crimes against humanity Sean D. Murphy George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Murphy, Sean D., Second Report of the Special Rapporteur on Crimes Against Humanity (January 21, 2016). United Nations International Law Commission, A/CN.4/690; GWU Law School Public Law Research Paper No. 2016-10; GWU Legal Studies Research Paper No. 2016-10. Available at SSRN: http://ssrn.com/ abstract=2767117 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. United Nations A/CN.4/690 General Assembly Distr.: General 21 January 2016 Original: English \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ International Law Commission Sixty-eighth session Geneva, 2 May-10 June and 4 July-12 August 2016 Second report on crimes against humanity By Sean D. Murphy, Special Rapporteur* Contents Page Multilateral instruments cited in the present report ................................... 3 Works cited in the present report .................................................. 7 Introduction ................................................................... 13 A. Work to date on this topic ........................................................ 13 B. Debate in 2015 in the Sixth Committee ............................................. 13 C. Purpose and structure of the present report .......................................... 15 I. Criminalization under national law ............................................ 17 A. Crimes against humanity in national law............................................ 18 B. Existing treaties obligating States to criminalize conduct in national law ................. 20 C. Commission of, attempt to commit, or participation in the crime ........................ 23 D. Command or other superior responsibility .......................................... 32 E. Superior orders ................................................................ 36 F. Statute of limitations ............................................................ 39 G. Appropriate penalties ........................................................... 45 H. Draft article 5. Criminalization under national law ................................... 49 * The Special Rapporteur wishes to thank Hervé Ascensio, Olympia Bekou, Sarah Bessell, Arturo Carillo, Hans Corell, Anne Dienelt, Sarah Freuden, Beatrice Gatti, Rainier Huhle, Florian Jeßberger, Wolfgang Kaleck, Gregory Kehoe, Lauren Koester, Nora Mbagathi, Annalise Nelson, Robert Petit, Matevž Pezdirc, Hugo Relva, Christian Ritscher, Leila Sadat, Herb Somers, Jennifer Summerville, Julie Tenenbaum, Christine Van den Wyngaert, Zelda Vassar, Laura Withers, the International Nuremberg Principles Academy and the George Washington University Law School International Human Rights Clinic for their invaluable assistance in the preparation of the present report. 16-00720 (E) 060416 *1600720* A/CN.4/690 II. Establishment of national jurisdiction .......................................... 50 A. Types of national jurisdiction over offences ......................................... 52 B. Not excluding other national jurisdiction ........................................... 63 C. Draft article 6. Establishment of national jurisdiction ................................. 64 III. General investigation and cooperation for identifying alleged offenders .............. 65 Draft article 7. General investigation and cooperation for identifying alleged offenders .. 69 IV. Exercise of national jurisdiction when an alleged offender is present ................ 70 A. Conducting a preliminary investigation ............................................. 71 B. Ensuring continuing presence..................................................... 73 C. Notifying other interested States .................................................. 75 D. Draft article 8. Exercise of national jurisdiction when an alleged offender is present ....... 76 V. Aut dedere aut judicare...................................................... 76 Draft article 9. Aut dedere aut judicare ......................................... 84 VI. Fair treatment of an alleged offender .......................................... 85 A. Fair treatment .................................................................. 88 B. Fair trial ...................................................................... 91 C. Full protection of human rights ................................................... 97 D. Communication with the State of nationality or other relevant State ..................... 98 E. Draft article 10. Fair treatment of the alleged offender ................................ 99 VII. Future programme of work ................................................... 100 Annexes I. Draft articles provisionally adopted by the Commission at its sixty-seventh session .... 101 II. Draft articles proposed in the second report ..................................... 104 2/106 16-00720 A/CN.4/690 Multilateral instruments cited in the present report Privileges and Immunities, Diplomatic and Consular Relations, etc. Vienna Convention on Consular Relations (Vienna, 24 April 1963) United Nations, Treaty Series, vol. 596, No. 8638, p. 261. Human Rights Convention on the Prevention and Punishment of the Crime of Genocide United Nations, Treaty Series, vol. 78, No. 1021, (Paris, 9 December 1948) p. 277. Convention for the Protection of Human Rights and Fundamental Freedoms Ibid., vol. 213, No. 2889, p. 221. (European Convention on Human Rights) (Rome, 4 November 1950) International Covenant on Civil and Political Rights (New York, 16 December 1966) Ibid., vol. 999, No. 14668, p. 171. American Convention on Human Rights: “Pact of San José, Costa Rica” Ibid., vol. 1144, No. 17955, p. 123. (San José, 22 November 1969) International Convention on the Suppression and Punishment of the Crime of Ibid., vol. 1015, No. 14861, p. 243. Apartheid (New York, 30 November 1973) African Charter on Human and Peoples’ Rights (Nairobi, 27 June 1981) Ibid., vol. 1520, No. 26363, p. 217. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Ibid., vol. 1465, No. 24841, p. 85. Punishment (New York, 10 December 1984) Inter-American Convention to Prevent and Punish Torture (Cartagena de Indias, OAS, Treaty Series, No. 67. 9 December 1985) Convention on the rights of the child (New York, 20 November 1989) United Nations, Treaty Series, vol. 1577, No. 27531, p. 3. Optional Protocol to the Convention on the Rights of the Child on the sale of children, Ibid., vol. 2171, No. 27531, p. 227. child prostitution and child pornography (New York, 25 May 2000) Inter-American Convention on the Forced Disappearance of Persons (Belem Do Para, OAS, Treaty Series, No. 60. 9 June 1994) Charter of Fundamental Rights of the European Union (Nice, 7 December 2000) Official Journal of the European Communities, No. C 364, 18 December 2000, p. 1. International Convention for the Protection of All Persons from Enforced Official Records of the General Assembly, Disappearance (New York, 20 December 2006) Sixty-First Session, Supplement No. 49 (A/61/49), vol. I, resolution 61/177, Annex. Council of Europe convention on preventing and combating violence against women Council of Europe, European Treaty Series, and domestic violence (Istanbul, 11 May 2011) No. 210. Narcotic Drugs and Psychotropic Substances United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic United Nations, Treaty Series, vol. 1582, Substances (Vienna, 20 December 1988) No. 27627, p. 95. 16-00720 3/106 A/CN.4/690 Transport and Communications Convention for the suppression of unlawful seizure of aircraft United Nations, Treaty Series, vol. 860, (The Hague, 16 December 1970) No. 12325, p. 105. Convention for the suppression of unlawful acts against the safety of civil aviation Ibid., vol. 974, No. 14118, p. 177. (Montreal, 23 September 1971) Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving Ibid., vol. 1589, No. 14118, p. 474. International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 24 February 1988) Penal matters International Convention for the Suppression of Counterfeiting Currency League of Nations, Treaty Series, vol. CXII, (Geneva, 20 April 1929) No. 623, p. 112. Agreement for the prosecution and punishment of the major war criminals of the D. Schindler and J. Toman, The Laws of Armed European Axis, Charter of the International Military Tribunal (“Nürnberg Charter”) Conflicts, Martinus Nihjoff, 1988, pp. 912-919. (London, 8 August 1945) Charter of the International Military Tribunal for the Far East, (amended 26 April Charles I. Bevans, ed., Treaties and Other 1946) (Tokyo, 19 January 1946) International Agreements of the United States of America 1776-1979, vol. IV (1946-1949), Washington D.C., Department of State Publications, p. 20. Convention on the non-applicability of statutory limitations to war crimes and crimes United Nations, Treaty Series, vol. 754, against humanity (New York, 26 November 1968) No.
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