DOCSLIB.ORG

The Most Controversial Crime of International Concern? an Analysis of Gender-Based Persecution Under International Criminal Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Most Controversial Crime of International Concern? an Analysis of Gender-Based Persecution Under International Criminal Law Juridicum The most controversial crime of international concern? An analysis of gender-based persecution under international criminal law Hanna Isaksson HT 2019 RV101A, Rättsvetenskaplig masterkurs med examensarbete, 30 högskolepoäng Examinator: Cristina Trenta Handledare: Maria Sjöholm Abstract Through the establishment of the Rome Statute of the International Criminal Court, gender- based persecution was incorporated as a crime and is today regarded as one of the most serious crimes of international concern. However, the inclusion of gender was subject for long and intensive debates, e.g. with regards to the very definition and protection of LGBTIQ persons. Since gender-based persecution has never been tried before an international criminal court or tribunal, no explicit guidance exists in relation to the application and interpretation of the crime. In the light of these question marks, the purpose with this thesis is to analyze the development and current status of gender-based persecution as a crime against humanity under international criminal law such as the challenging aspects of gender-based persecution and if such challenges results in the gap of the protection of certain groups. Contributions from international refugee law will also be analyzed as well as the recent proposed convention on crimes against humanity by the international law commission. This thesis concludes that the most challenging aspects of gender-based persecution is the very definition and how the link between persecution and gender should be established. The undefined definition of gender risks to exclude protection of primarily LGBTIQ persons, even though the material provided for in the thesis rather speaks for inclusion than exclusion. The existence of sexual- and gender-based violence exceptionalism risks to exclude protection of victims of these crimes, primarily women, since there is a tendency to ignore the discriminatory purpose behind sexual violence. There is a risk that the practical application of the crime results in a gap in the protection of victims of sexual violence. Even if the prohibition of analogy applies, this thesis argues that the ICC still can draw inspiration from both international refugee law and the proposed convention on crime against humanity regarding if gender should be defined in a narrow or board manner. International refugee law especially can provide contributions on the establishment of causal link between persecution and gender. The first case with regards to gender-based persecution is currently pending before the International Criminal Court. Regardless of the outcome, the judgment will be a deal breaker and decide how far the protection of all human beings reaches before the International Criminal Court. 1 List of abbreviations CIL – Customary International Law CRC – Convention of the Right of the Child CEDAW – Convention on the Elimination on All Forms of Discrimination Against Women IBA – International Bar Association ICC- The International Criminal Court ICL – International Criminal Law ICTY – The International Criminal Tribunal of Former Yugoslavia ICTR – The International Criminal Tribunal of Rwanda IHL – International Humanitarian Law IHRL – International Human Rights Law ILC – International Law Commission IRL – International Refugee Law LGBTIQ – Lesbian, Gay, Bisexual, Transgender, Intersex, Queer OHCHR – Office of the High Commissioner for Human Rights. OTP – Office of the Prosecutor at the International Criminal Court UNGA – United Nations General Assembly UNHCR – United Nations High Commissioner for Refugees 2 Table of content 1. Introduction ............................................................................................................................ 5 1.1 Background ...................................................................................................................... 5 1.2 Purpose and research questions ........................................................................................ 6 1.3 Delimitations .................................................................................................................... 6 1.4 Method and material ......................................................................................................... 6 1.5 Outline .............................................................................................................................. 7 2. Persecution as an International Crime .................................................................................... 8 2.1 Introduction – From Nuremburg to Rome ....................................................................... 8 2.2. Persecution before the Nuremburg Tribunal ................................................................... 9 2.3 Persecution before the ICTY .......................................................................................... 11 2.3.1 Analysis and discussion .......................................................................................... 14 2.4 Persecution before the ICTR .......................................................................................... 15 2.4.1 Analysis and discussion .......................................................................................... 16 3. Persecution before the ICC .................................................................................................. 17 3.1 Scope of interpretation ................................................................................................... 17 3.2 Persecution under the Rome Statute ............................................................................... 18 3.3 Elements of persecution ................................................................................................. 19 3.3.1 The chapeau elements ............................................................................................. 19 3.3.2 Severe deprivation of one or more fundamental rights ........................................... 19 3.3.3 Targeted by reason of the identity of a group the group or collectivity as such. .... 21 3.3.4 Targeted on one of the grounds listed in the statute ................................................ 21 3.3.5 The "connection requirement" ................................................................................. 22 3.3.6 Analysis and discussions ......................................................................................... 23 4. Gender-based persecution before the ICC ........................................................................... 24 4.1 Introduction – the debate ................................................................................................ 24 4.2 Defining "gender" under the Rome Statute .................................................................... 25 4.3 Defining "gender" under IRL ......................................................................................... 27 4.3.1 Analysis and discussion .......................................................................................... 28 4.4 Gender-based persecution and LGBTIQ ........................................................................ 29 4.4.1 Analysis and discussion .......................................................................................... 31 4.5 Persecution on the basis of gender? ............................................................................... 31 4.5.1 Analysis and discussion .......................................................................................... 34 4.6 Cases before the ICC ...................................................................................................... 35 4.6.1 Analysis and discussion .......................................................................................... 38 4.7 Feminist critique of CIL ................................................................................................. 39 5. ILC draft articles on crimes against humanity ..................................................................... 41 3 5.1 Introduction – a pressing need for a specialized convention? ........................................ 41 5.2 Gender-based persecution under a specialized convention ............................................ 42 5.2.1 Analysis and discussion .......................................................................................... 43 6. Summary and analysis .......................................................................................................... 45 Conclusion ............................................................................................................................ 49 Bibliography ............................................................................................................................. 50 4 1. Introduction 1.1 Background The crime of persecution can be described as being the core of crimes against humanity under International Criminal Law (ICL),1 primarily because of its unique character.2 It was first in the Nuremburg Tribunal that persecution was codified as an international crime. However, persecution could only be adjudicated by reason of political opinion, race or religious belief.3 Consequently, gender-based persecution could not result in any successful convictions. The International Criminal Tribunal of Former Yugoslavia (ICTY) and the International Criminal Tribunal of Rwanda (ICTR), were the first international criminal tribunals to address gender- related crimes, but gender was still not included as a
Load more

Recommended publications
  • Nuremberg Icj Timeline 1474-1868
    NUREMBERG ICJ TIMELINE 1474-1868 1474 Trial of Peter von Hagenbach In connection with offenses committed while governing ter- ritory in the Upper Alsace region on behalf of the Duke of 1625 Hugo Grotius Publishes On the Law of Burgundy, Peter von Hagenbach is tried and sentenced to death War and Peace by an ad hoc tribunal of twenty-eight judges representing differ- ent local polities. The crimes charged, including murder, mass Dutch jurist and philosopher Hugo Grotius, one of the principal rape and the planned extermination of the citizens of Breisach, founders of international law with such works as Mare Liberum are characterized by the prosecution as “trampling under foot (On the Freedom of the Seas), publishes De Jure Belli ac Pacis the laws of God and man.” Considered history’s first interna- (On the Law of War and Peace). Considered his masterpiece, tional war crimes trial, it is noted for rejecting the defense of the book elucidates and secularizes the topic of just war, includ- superior orders and introducing an embryonic version of crimes ing analysis of belligerent status, adequate grounds for initiating against humanity. war and procedures to be followed in the inception, conduct, and conclusion of war. 1758 Emerich de Vattel Lays Foundation for Formulating Crime of Aggression In his seminal treatise The Law of Nations, Swiss jurist Emerich de Vattel alludes to the great guilt of a sovereign who under- 1815 Declaration Relative to the Universal takes an “unjust war” because he is “chargeable with all the Abolition of the Slave Trade evils, all the horrors of the war: all the effusion of blood, the The first international instrument to condemn slavery, the desolation of families, the rapine, the acts of violence, the rav- Declaration Relative to the Universal Abolition of the Slave ages, the conflagrations, are his works and his crimes .
    [Show full text]
  • Pirates and Impunity: Is the Threat of Asylum Claims a Reason to Allow Pirates to Escape Justice
    Pirates and Impunity: Is the Threat of Asylum Claims a Reason to Allow Pirates to Escape Justice Yvonne M. Dutton Abstract Pirates are literally getting away with murder. Modern pirates are attacking vessels, hijacking ships at gunpoint, taking hostages, and injuring and killing crew members.1 They are doing so with increasing frequency. According to the International Maritime Bureau (“IMB”) Piracy Reporting Center’s 2009 Annual Report, there were 406 pirate attacks in 2009—a number that has not been reached since 2003. Yet, in most instances, a culture of impunity reigns whereby nations are not holding pirates accountable for the violent crimes they commit. Only a small portion of those people committing piracy are actually captured and brought to trial, as opposed to captured and released. For example, in September 2008, a Danish warship captured ten Somali pirates, but then later released them on a Somali beach, even though the pirates were found with assault weapons and notes stating how they would split their piracy proceeds with warlords on land. Britain’s Royal Navy has been accused of releasing suspected pirates,7 as have Canadian naval forces. Only very recently, Russia released captured Somali pirates—after a high-seas shootout between Russian marines and pirates that had attacked a tanker carrying twenty-three crew and US$52 million worth of oil.9 In May 2010, the United States released ten captured pirates it had been holding for weeks after concluding that its search for a nation to prosecute them was futile. In fact, between March and April 2010, European Union (“EU”) naval forces captured 275 alleged pirates, but only forty face prosecution.
    [Show full text]
  • NUREMBERG) Judgment of 1 October 1946
    INTERNATIONAL MILITARY TRIBUNAL (NUREMBERG) Judgment of 1 October 1946 Page numbers in braces refer to IMT, judgment of 1 October 1946, in The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany , Part 22 (22nd August ,1946 to 1st October, 1946) 1 {iii} THE INTERNATIONAL MILITARY TRIBUNAL IN SESSOIN AT NUREMBERG, GERMANY Before: THE RT. HON. SIR GEOFFREY LAWRENCE (member for the United Kingdom of Great Britain and Northern Ireland) President THE HON. SIR WILLIAM NORMAN BIRKETT (alternate member for the United Kingdom of Great Britain and Northern Ireland) MR. FRANCIS BIDDLE (member for the United States of America) JUDGE JOHN J. PARKER (alternate member for the United States of America) M. LE PROFESSEUR DONNEDIEU DE VABRES (member for the French Republic) M. LE CONSEILER FLACO (alternate member for the French Republic) MAJOR-GENERAL I. T. NIKITCHENKO (member for the Union of Soviet Socialist Republics) LT.-COLONEL A. F. VOLCHKOV (alternate member for the Union of Soviet Socialist Republics) {iv} THE UNITED STATES OF AMERICA, THE FRENCH REPUBLIC, THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, AND THE UNION OF SOVIET SOCIALIST REPUBLICS Against: Hermann Wilhelm Göring, Rudolf Hess, Joachim von Ribbentrop, Robert Ley, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar Schacht, Gustav Krupp von Bohlen und Halbach, Karl Dönitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Martin
    [Show full text]
  • Commission for the Prosecution of Crimes Against the Polish Nation As a Ground for Prosecution of Crimes Against Humanity, War Crimes and Crimes Against Peace
    XXXVIi POLISH YEaRbook of inTERnaTional law DOI 10.7420/pyil2017n 2017 PL ISSN 0554-498X Karoli­n­a Wi­erczyńska* AcT Of 18 DEcEmbEr 1998 ON ThE INSTiTuTE Of NaTiONal REmEmbraNcE – COmmiSSiON fOr ThE PrOSEcuTiON Of CrimES agaiNST ThE POliSh NaTiON aS a grOuNd fOr prOSEcuTiON Of crimES agaiNST humaNiTy, war crimES aNd crimES agaiNST pEacE Abstract: Thi­s arti­cle di­scusses defin­i­ti­on­s of cri­mes i­n­cluded i­n­to the Act of 18 December 1998 on­ the In­sti­tute of Nati­on­al Remembran­ce – Commi­ssi­on­ for the Prosecuti­on­ of Cri­mes agai­n­st the Poli­sh Nati­on­, an­d thei­r usefuln­ess i­n­ prosecuti­n­g i­n­di­vi­duals who commi­tted i­n­tern­ati­on­al cri­mes. It i­s argued that the provi­si­on­s of the Act can­n­ot con­sti­tute a groun­d for cri­mi­n­al respon­si­bi­li­ty of i­n­di­vi­duals, as they vi­olate the pri­n­ci­ple of nullum crimen sine lege certa. Keywords: crimes against humanity, crimes against peace, genocide, ICC, ICTR, Institute of National Remembrance, war crimes INTrOducTiON The current discussion on the Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation (the Act) should have been started many years before adoption of the controversial amendment which has unleashed an international furore, with Poland at the centre.
    [Show full text]
  • Prosecuting Rape Under the Statute of the War Crimes Tribunal for the Former Yugoslavia Sharon A
    Brooklyn Journal of International Law Volume 21 | Issue 2 Article 2 12-1-1995 Prosecuting Rape Under the Statute of the War Crimes Tribunal for the Former Yugoslavia Sharon A. Healey Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Sharon A. Healey, Prosecuting Rape Under the Statute of the War Crimes Tribunal for the Former Yugoslavia, 21 Brook. J. Int'l L. 327 (1995). Available at: https://brooklynworks.brooklaw.edu/bjil/vol21/iss2/2 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. Prosecuting Rape Under the Statute of the War Crimes Tribunal for the Former Yugoslavia By Sharon A. Healey* I. INTRODUCTION From the relative safety of a one room cabin in a refugee camp in Gasinci, Croatia, 15-year-old Emina Gasi recounted the horrors of February 1994, when men in Serbian military uniforms, stockings over their faces, broke into her home in Banja Luka, slashed her grandfather's head and arms with knives, killing him, and, as he lay dying, raped her.' Her story is not unique. As war in the former Yugoslavia rages on, refu- gees have poured out wrenching accounts of systematic rapes and sexual abuses, mostly at the hands of Serbian forces.2 These stories include: repeated rapes of girls as young as 6 and 7; violations by neighbors and strangers alike; gang rapes so brutal their victims die; rape camps where Serbs routinely abused and murdered Muslim and Croat women; rapes of young girls performed in front of fathers, mothers, siblings and children; rapes committed explicitly to impregnate Muslim women and hold them captive until they give birth to unwanted Serbian babies.3 * LL.M.
    [Show full text]
  • Mr. Roger S. Clark, Board of Governors Professor, Rutgers
    United Nations Audiovisual Library of International Law MR. ROGER S. CLARK Board of Governors Professor Rutgers School of Law, Camden Professor Clark teaches courses in international law; international protection of human rights; international organizations; international criminal law and criminal justice policy; United States foreign relations and national security law; and criminal law. He served as a member of the United Nations Committee on Crime Prevention and Control between 1987 and 1990. Prior to joining the Rutgers faculty in 1972, he worked for the New Zealand Justice Department and Ministry of Foreign Affairs; taught law in New Zealand; served as an American Council of Learned Societies Fellow and Doctoral Fellow at the Columbia University School of Law; interned at the United Nations; and taught at the law school of the University of Iowa. He has been a visiting or adjunct professor at numerous institutions, including the University of Pennsylvania, the University of Miami, the University of Graz in Austria, and the University of the South Pacific (Fiji). He has taught in study abroad programs offered by Temple University and the University of San Diego and teaches regularly in the University of Salzburg’s Summer School in International Criminal Law. Professor Clark serves on the editorial boards of various publications, including Criminal Law Forum: An International Journal; the Human Rights Review; and the International Lawyer. He has been the general editor of the Procedural Aspects of International Law monographs since 2004, and is a board member of several international non- governmental organizations, such as the International Centre for Criminal Law Reform www.un.org/law/avl United Nations Audiovisual Library of International Law and Criminal Justice Policy in Vancouver, B.C., and the International League for Human Rights, headquartered in New York.
    [Show full text]
  • CJI/Doc.349/10 INTERNATIONAL CRIMINAL COURTS (Presented By
    CJI/doc.349/10 INTERNATIONAL CRIMINAL COURTS (presented by Dr. Jorge Palacios Treviño) When on July 17, 1998 the Rome Diplomatic Conference adopted the treaty containing the Statute whereby the International Criminal Court was created, the old aspiration came true of establishing a permanent international criminal court aimed preventing impunity for crimes of which millions have been victims and which due to their seriousness are considered as a “threat to peace, security and well-being of the world”, as stated in the Preamble of the Rome Statute. In a certain way, the International Criminal Court constitutes the realization of the so-called universal jurisdiction; that is, the duty of the States to punish or extradite, in accordance with the provisions contained in international conventions. The background of the establishment of the Court dates back to the end of World War I, since the Peace Treaty of Versailles already contemplated the establishment of ad hoc courts –although none was established- “to prosecute those accused of committing unlawful acts and customs of war”. Article 227 of this treaty even ordered the arraignment of Kaiser William II for a “supreme offense against international morality”; in other words, for considering that he was the main responsible for the war. However, the government of Holland, which had given him asylum, refused to extradite him. For this reason, only a few criminals were prosecuted in Germany, and were qualified as symbolic. Since that time, the opinion became widespread that International Law could directly impose obligations upon individuals and, consequently, liability for committing these crimes of war and crimes against humanity and, for this reason, they were qualified as international crimes.
    [Show full text]
  • Draft Code of Offences Against the Peace and Security of Mankind with Commentaries 1954
    Draft Code of Offences against the Peace and Security of Mankind with commentaries 1954 Text adopted by the International Law Commission at its sixth session, in 1954, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 54). The report, which also contains commentaries on some of the draft articles, appears in Yearbook of the International Law Commission, 1954, vol. II. The commentaries on the remaining draft articles are reproduced in Yearbook of the International Law Commission, 1951, vol. II, at para. 59ff Copyright © United Nations 2005 YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1951 Volume II Documents of the third session including the report of the Commission to the General Assembly UNITED NATIONS 134 Yearbook of the International Law Commission, VoV. II paragraph (a) of resolution 177 (II). By resolution view of the Commission was that the meaning of this 488 (V) of 12 December 1950, the General Assembly term should be limited to offences which contain a invited the governments of Member States to express political element and which endanger or disturb the their observations on the formulation, and requested maintenance of international peace and security. For the Commission: these reasons, the draft code does not deal with ques- "In preparing the draft code of offences against tions concerning conflicts of legislation and jurisdiction the peace and security of mankind, to take account in international criminal matters; nor does it include of the observations made on this formulation by such matters as piracy, traffic in dangerous drugs, delegations during the fifth session of the General traffic in women and children, slavery, counterfeiting Assembly and of any observations which may be currency, damage to submarine cables, etc.
    [Show full text]
  • I. Introduction
    OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES GENEVA The Exclusion Clauses: Guidelines on their Application UNHCR, Geneva, December 1996 I. Introduction 1. The Statute of the United Nations High Commissioner for Refugees (the UNHCR Statute), the 1951 Convention Relating to the Status of Refugees (the 1951 Convention) and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (the OAU Convention) contain provisions for excluding from the benefits of refugee status certain persons who would otherwise qualify as refugees. These provisions are commonly referred to as “exclusion clauses”.[1] 2. Events in the last few years have resulted in increasing use of the exclusion clauses by governments and by UNHCR, and requests for clarification or review of UNHCR’s position on exclusion. This Note provides a detailed analysis and review of the exclusion clauses, taking into account the practice of states, UNHCR and other relevant actors, UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook), case law, the travaux préparatoires of the relevant international instruments, and the opinions of commentators. It is hoped the information provided in this Note will facilitate the proper application of the exclusion clauses through a thorough treatment of the main issues. Obviously, each case must be considered in light of its own peculiarities, bearing in mind the information provided below. II. The Exclusion Clauses in the International Refugee Instruments 3. Paragraph 7(d) of the UNHCR Statute provides that the competence of the High Commissioner shall not extend to a person: In respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition or a crime mentioned in article VI of the London Charter of the International Military Tribunal or by the provisions of article 14, paragraph 2, of the Universal Declaration of Human Rights.[2] 4.
    [Show full text]
  • Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal 1950
    Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal 1950 Text adopted by the International Law Commission at its second session, in 1950 and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. The report, which also contains commentaries on the principles, appears in Yearbook of the International Law Commission, 1950, vol. II, para. 97. Copyright © United Nations 2005 Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal Principle I Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Principle II The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. Principle III The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. Principle IV The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. Principle V Any person charged with a crime under international law has the right to a fair trial on the facts and law. Principle VI The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
    [Show full text]
  • Verbrechen Gegen Die Menschheit“Menschheit“1 in Nürnberg Und Danach
    www.menschenrechte.org Vom schwierigen Umgang mit „Verbrechen gegen die Menschheit“Menschheit“1 in Nürnberg und danach Rainer Huhle, Februar 2009 us heutiger Sicht besteht die rechtsgeschichtliche Bedeutung der Nürnberger Prozesse in der Festschreibung persönlicher Verantwortlichkeit auch von höchsten politischen AVerantwortlichen vor internationalen Instanzen der Rechtsprechung für bestimmte Verbrechen. Unter diesen in Nürnberg international angeklagten Verbrechen sind dabei die „Verbrechen gegen die Menschheit“ diejenigen, die am stärksten die seitherigen Fortschritte des Völkerstrafrechts bestimmt haben. Seit Nürnberg hat sich eine neue Auffassung im Völkerrecht durchgesetzt, die solche Verbrechen allmählich der staatlichen Souveränität entzogen und zu einer Angelegenheit der ganzen Staatengemeinschaft gemacht hat. Wie ein Staat seine eigenen Bürger behandelt, sollte nicht mehr ausschließlich seine eigene Angelegenheit bleiben. Die acht Richter des IMT in Nürnberg 1. Der Begriff “Crimes against humanity” wird in offiziellen deutschen Dokumenten und auch in der Ausgabe der Protokolle des Internationalen Militärtribunals als “Verbrechen gegen die Menschlichkeit” übersetzt. Richtig muss es jedoch heißen „Verbrechen gegen die Menschheit“, denn es geht nicht um fehlende Menschlichkeit, sondern um Verbrechen, die nach Art und Umfang die gesamte Menschheit angehen. Der französische Richter am IMT, Donnedieu de Vabres, stellte dies schon kurz nach dem Nürnberger Urteil klar und verwies auch auf den irreführenden deutschen Sprachgebrauch. s.
    [Show full text]
  • Draft Code of Crimes Against the Peace and Security of Mankind with Commentaries 1996
    Draft Code of Crimes against the Peace and Security of Mankind with commentaries 1996 Text adopted by the International Law Commission at its forty-eighth session, in 1996, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 50). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1996, vol. II, Part Two. Copyright © United Nations 2005 Draft Code of Crimes against the Peace and Security of Mankind 17 is understood that the inclusion of certain crimes in the able as such, whether or not they are punishable Code does not affect the status of other crimes under inter- under national law. national law, and that the adoption of the Code does not in any way preclude the further development of this impor- tant area of law. Commentary (1) As the first article in the draft Code of Crimes B. Recommendation of the Commission against the Peace and Security of Mankind, article 1 addresses as a preliminary matter the scope and applica- tion of the provisions of the Code. 47. The Commission considered various forms which the draft Code of Crimes against the Peace and Security (2) Paragraph 1 restricts the scope and application of of Mankind could take; these included an international the Code to those crimes against the peace and security of convention, whether adopted by a plenipotentiary confer- mankind that are set out in part two. This provision is not ence or by the General Assembly; incorporation of the intended to suggest that the Code covers exhaustively all Code in the statute of an international criminal court; or crimes against the peace and security of mankind, but adoption of the Code as a declaration by the General rather to indicate that the scope and application of the Assembly.
    [Show full text]