Crimes Against Humanity Initiative

The Crimes Against Humanity Initiative is a rule of law research and advocacy project of the Whitney R. Harris World Law Institute. Started in 2008 by Professor Leila Nadya Sadat, the Initiative has as its goals the study of the need for a comprehensive international convention on the prevention and punishment of crimes against humanity, the analysis of the necessary elements of such a convention, and the drafting of a proposed treaty. To date, the Initiative has held several experts' meetings and conferences, published a Proposed Convention on the Prevention and Punishment of Crimes Against Humanity, and resulted in the publication of an edited volume, Forging a Convention for Crimes Against Humanity, by Cambridge University Press. The draft treaty is now available in seven languages and is currently being debated by the UN International Law Commission and governments around the world.

Background on the need for a treaty on Crimes Against Humanity

Crimes against humanity, along with crimes against peace and war crimes, were one of the three categories of crimes elaborated upon in the Nuremberg Charter, in response to the grave atrocities committed during the Second World War.^[1] Since the establishment of the Nuremberg principles and the adoption of the Genocide Convention, genocide and war crimes have widely been recognized and prohibited in international criminal law.^[2][3] However, there has never been a comprehensive convention on crimes against humanity,^[4] even though such crimes are continuously perpetrated worldwide in numerous conflicts and crises.^[5][6][7] Consequently, an international convention on crimes against humanity is a key missing element in the current framework of international humanitarian law, international criminal law, and human rights law.^[8] Washington University's Crimes Against Humanity (CAH) Initiative represents the first concerted effort to address the gap that exists in international criminal law by enumerating a comprehensive international convention on crimes against humanity.^[9] While the Genocide Convention provides a legal framework for prosecuting perpetrators of genocide, and the Geneva Conventions address war crimes, crimes against humanity have yet to be codified. The statutes of the International Criminal Court, the International Criminal Tribunals for the Former Yugoslavia and for Rwanda each contain different definitions of crimes against humanity,^[10] further demonstrating the need for a comprehensive convention that would both punish perpetrators and prevent such atrocities from occurring in the future.

Leadership

The Crimes Against Humanity Initiative is directed by a global Steering Committee of experts and scholars in the field of international criminal law which includes:

• Professor Leila Nadya Sadat (chairwoman),
• Professor M. Cherif Bassiouni,
• Ambassador Hans Corell,
• Justice Richard Goldstone,
• Professor Juan E. Méndez,
• Professor William Schabas and
• Judge Christine Van Den Wyngaert.

The Crimes Against Humanity Initiative also has a global advisory counsel.

Past work

The CAH Initiative is carried out in four phases, three of which have been completed. The first phase was to prepare the project in various aspects, including its methodological development.

Phase Two

The second phase was to conduct a private study through the writing of papers and expert collaboration. This phase resulted in the production of scholarly papers which contribute to the body of literature on crimes against humanity. Fifteen of these papers, written by leading experts, were presented and discussed at a conference held at Washington University School of Law in St. Louis on April 13–14, 2009.^[11] This Meeting was held in St. Louis, MO. The April Experts' Meeting was the first formal session of the Initiative and was attended by more than forty international experts and academics.^[12] This Meeting resulted in a report, which summarized and addressed concerned raised by participants, including the relationship between a crimes against humanity convention and the International Criminal Court, universal jurisdiction, and the relationship to customary international law.^[13]

Phase Three

The third phase of the Initiative resulted in the elaboration and publication of a Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity in English and French. Nearly 250 experts were consulted ^[14] and the draft of the Proposed Convention underwent seven major revisions.

A Capstone Conference was held in Washington D.C. at the Brookings Institution in 2010. This Conference was co-sponsored by the American Society of International Law, the American National Section of the International Association of Penal Law, and The Brookings Institution.^[15] This Conference resulted in a Declaration on the Need for a Comprehensive Convention on Crimes Against Humanity which was signed by all seven members of the Steering Committee and supported by 73 other individuals who were involved in the process, including Ambassador David Scheffer, Silvana Arbia, then Registrar of the ICC, Robert Badinter, David M. Crane, former Prosecutor at the Special Court for Sierra Leone, Benjamin B. Ferencz, a chief prosecutor at the United States Military Tribunals in Nuremberg, Judge O-Gon Kwon, International Criminal Tribunal for the former Yugoslavia, Judge Daniel Nsereko, International Criminal Court and H.E. Gareth John Evans.^[16]

An Experts' Meeting was held in Geneva May 16–17, 2014 at the Villa Moynier. This meeting included international legal experts, governmental officials, diplomats, members of civil society, and many members of the International Law Commission.^[17] These discussions are summarized in a Report published on July 17, 2014.^[18]

The Proposed Convention on the Prevention and Punishment of Crimes Against Humanity

The Proposed Convention on the Prevention and Punishment of Crimes Against Humanity is a model treaty developed by the Crimes Against Humanity initiative. It contains 27 articles and 6 annexes. Echoing its 1907 forebear, it also contains its own "Martens Clause" in the Preamble.^[19] The Proposed Convention builds upon and complements the ICC Statute by retaining the Rome Statute definition of crimes against humanity,^[20] but has added robust interstate cooperation, extradition, and mutual legal assistance provisions in Annexes 2-6. Universal jurisdiction was retained (but is not mandatory), and the Rome Statute served as a model for several additional provisions, including Articles 4-7 (Responsibility, Official Capacity, Non-Application of Statute of Limitations) and with respect to final clauses. Other provisions draw on international criminal law and human rights instruments more broadly, including the Enforced Disappearance Convention, the Terrorist Bombings Convention, the Convention Against Torture, the UN Conventions on Corruption and Organized Crime, the European Transfer of Proceedings Convention, and the Inter-American Criminal Sentences Convention. The Proposed Convention provides for State as well as individual responsibility, and would vest jurisdiction in the International Court of Justice to resolve differences as to interpretation and application of the Proposed Convention.

Current work

The Initiative is currently undergoing its fourth and final phase, which includes the promotion of the Proposed Convention as part of a broader global awareness campaign.^[21] In this phase, the Crimes Against Humanity Initiative aims to raise global awareness of the need for an international convention on crimes against humanity, and to encourage the international community to adopt the Proposed Convention. The CAH Initiative has completed translations of the Proposed Convention in French, Spanish, Arabic, Russian, and German in order to widen the reach of the Initiative and the Proposed Convention.[23] A Chinese translation is forthcoming.

The Crimes Against Humanity Steering Committee has also reached out to national and international policy makers to begin a dialog about the strengths and benefits of the Proposed Convention and the responsibility of the international community to prevent and punish crimes against humanity. Members of the Steering Committee frequently present the Initiative to audiences in the United States and abroad. This includes at an informational side event at the 11th Session of International Criminal Court's Assembly of States Parties at The Hague.^[22][23]

Chairwoman Leila Nadya Sadat has presented on the Crimes Against Humanity Initiative at Misericordia University,^[24][25][26] Wayne Law School,^[27] John Burroughs High School ^[28] the School of Human Rights Research in the Netherlands,^[29] the 2013 NAFSA Annual Conference & Expo in St. Louis,^[30] The American Foreign Law Association in New York,^[31] Indiana University and University of Minnesota Law School.^[32] In April 2015, Leila Sadat presented on the Crimes Against Humanity Initiative at the Universidade Católica Portuguesa. The presentation was attended by the President of the Portuguese Supreme Court, Justice António Henriques Gaspar, Justice Maria dos Prazeres Beleza, also from the Supreme Court of Justice and the Portugal's Attorney General Joana Marques Vidal. Prominent members of the Academy were also present, including the Dean of the Lisbon School of Law of the Universidade Católica Portuguesa, Professor Jorge Pereira da Silva, Professor Germano Marques da Silva, a former Dean of Lisbon School of Law and a Criminal Law Professor, Professor Luís Barreto Xavier, the Dean of Católica Global School of Law and Professor Gonçalo Matias, Director of Católica Global’s Transnational Law Program, and special adviser to Portuguese President Aníbal Cavaco Silva.^[33]

Steering Committee member Cherif Bassiouni was recently interviewed by The Economist on the need for a global crimes against humanity treaty.^[34]

On July 30, 2013, the International Law Commission voted to include the topic of crimes against humanity in its long-term program of work. In July 2014, the Commission moved this topic to its active programme of work.^[17][35][36] Professor Sean Murphy, the United States' Member on the United Nations' International Law Commission, has been named the Special Rapporteur for Crimes Against Humanity. Sean Murphy attended the 2010 and 2014 Experts' Meeting held by the Initiative prior to this appointment.

Responses to the Initiative and Proposed Convention

Positive responses to the Proposed Convention

The Proposed Convention and the Initiative has received support from a number of practitioners and scholars in the field of international criminal. For example, the Prosecutors of various international criminal tribunals have endorsed the goal of a convention on crimes against humanity in the declarations adopted in Chautauqua, New York, in 2010 and in Kigali, Rwanda, in 2009.^[37] The flagship book by the Initiative, Forging a Convention for Crimes Against Humanity, has received considerable praise and attention ^[38] and received the Book of the Year Award from the American Branch of L'Association Internationale de Droit Pénal.^[39]

Additionally, the work of the Initiative was cited by the International Law Commission in its report detailing its decision to add the topic "Crimes against humanity" to its long-term programme of work.^[40]

Following Sean Murphy's report to the International Law Commission urging it to take up the topic of crimes against humanity, George Washington Law School enacted a new student project to search and develop commentary based on the Harris Institute's proposed convention.^[41]

In the 69th Session of the UN General Assembly in 2014, many states made positive remarks on the International Law Commission's decision to move forward with studying the need for a global crimes against humanity treaty, and expressed their support for the work of the ILC on the crimes against humanity treaty topic, including Australia, Croatia, the Czech Republic, Israel, Japan, Korea, Trinidad and Tobago, and the United States.^[42] In particular, Croatia stated that it “fully supports endeavors aimed at developing a global international instrument for the prevention, prosecution and punishment of crimes against humanity, as well as cooperation between States in that regard.” The Czech Republic expressly noted the work of the Crimes Against Humanity Initiative in this area in their statement.^[43]

Whitney Robson Harris supported the work of the Initiative prior to his death. In 2010 he made a plea to the legal experts, members of civil society and diplomats who were present at the 2010 Experts' Meeting at the Brookings Institution. He stated,

Following the trials, the Genocide Convention was adopted in 1948, criminalizing the Nazis' attempt to exterminate European Jewry. The Geneva Conventions were elaborated in 1949, codifying the laws of war. But crimes against humanity - one of the most revolutionary and important elements of the Nuremberg Charter itself - were never set out in a treaty until the adoption of the International Criminal Court Statute in the summer of 1998. Practically speaking, what that means is that the words uttered after Nuremberg "And never again" have but a hollow significance. My friends, this initiative of the Institute that bears my name is the first serious international effort to fill this gap, complete this work, and fulfill the Nuremberg legacy.

Negative responses and criticisms

In the 69th Session of the UN General Assembly in 2014, some states questioned the need for further study on the need for a crimes against humanity convention, including France, South Africa, and the Netherlands, which considered "that this issue is to a large extent already addressed in the Rome Statute."^[42] France questioned the need for a crimes against humanity convention and made reference to the Crimes Against Humanity Initiative in their remarks before the UN 6th Committee in 2014.^[44]

Other scholars question the likelihood that the Proposed Convention will have any effect on the prevention and punishment of crimes against humanity.^[45]

References