Africa’s contribution towards the development of the International Law Commission (ILC) Draft Articles should not be assessed exclusively on the basis of the limited engagement of African States or individuals in the discursive processes within the ILC, but from a historical perspective. When analysed from that perspective, it becomes clear that Africa has had a long connection to atrocity crimes due to the mass victimization of its civilian populations during the colonial and postcolonial periods and apartheid in South Africa. Following independence in the 1960s, African States played a leading role in the elaboration of legal regimes to deal with international crimes such as apartheid, or in the development of accountability mechanisms to respond to such crimes. Although some of these efforts proved unsuccessful in the end, the normative consensus that was generated went a long way in laying the foundations for the Rome Statute of the International Criminal Court, which, in turn, influenced the conceptual framework of the ILC Draft Articles. This article proposes that given this historical nexus, the substantive provisions and international cooperation framework provided for in the future crimes against humanity convention, Africa has more reasons to support than to oppose it when negotiations begin at the United Nations General Assembly or an international diplomatic conference. |
Search result: 31 articles
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Article |
The ILC Draft Articles on Crimes Against HumanityAn African Perspective |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | Africa, norm creation, crimes against humanity, colonial crimes, official immunity |
Authors | Alhagi B.M. Marong |
AbstractAuthor's information |
Article |
Time to DeliverDefining a Process Towards the Negotiation of a Convention on the Prevention and Punishment of Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | Sixth Committee, International Law Commission, intergovernmental negotiations, multilateral treaties, treaty-making process |
Authors | Pablo Arrocha Olabuenaga |
AbstractAuthor's information |
In 2019, the International Law Commission (ILC) adopted its articles on the prevention and punishment of crimes against humanity and referred them to the UN General Assembly with the recommendation of adopting a multilateral treaty based on them. The General Assembly’s Sixth Committee was unable to take a decision on this matter and deferred its consideration to 2020. This article focuses on how, in resuming its discussion, the Sixth Committee will have a unique opportunity to define the process towards intergovernmental negotiations. This will close a gap in international criminal law, while generating a new dynamic in its relationship with the ILC on codification, breaking its current cyclical inertia of inaction. |
Article |
Relating to ‘The Other’The ILC Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance Initiative |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | International Law Commission (ILC), Draft Convention on Crimes Against Humanity, Mutual Legal Assistance (MLA) initiative, crimes against humanity, international criminal law |
Authors | Larissa van den Herik |
AbstractAuthor's information |
The International Law Commission (ILC) Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance (MLA) Initiative have largely run in tandem throughout their development. Both projects are motivated by similar gap-filling desires and both projects aim to expand the international criminal justice toolkit; however, these similarities have led to questions if both projects are necessary. This article addresses that question, looking at how different actors have answered this question during the respective processes of maturation of both projects and where both projects stand today. It argues that, while there is significant overlap between the projects, both instruments have merits which the other is lacking, and the optimal solution would be to bring both projects to fruition. |
Article |
Unlocking the Sixth Committee’s Potential to Act for Crimes Against Humanity as It Did for Genocide |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, General Assembly, International Law Commission, Sixth Committee, United Nations |
Authors | Michael Imran Kanu |
AbstractAuthor's information |
The International Law Commission, on completion of its work on the draft articles on prevention and punishment of crimes against humanity, recommended to the General Assembly the elaboration of a convention by the said Assembly or by an international conference of plenipotentiaries based on the said draft articles. The Sixth Committee of the United Nations General Assembly at the first opportunity only took note of the draft articles and postponed consideration of the recommendation to its next session. The resolution of the General Assembly, as recommended by the Sixth Committee, does not readily disclose the full extent of the debate, proposals and concerns expressed in the Sixth Committee that prevented the General Assembly from acting on the Commission’s recommendation. This article, in considering the cornucopia of views expressed by States, outlines a path to unlock the Sixth Committee’s potential to act, by proposing a separation of the organizational and substantive matters and future-proofing the further consideration of elaborating a convention through the adoption of a structured approach. |
Editorial |
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Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Authors | Sean D. Murphy |
Author's information |
Article |
Asian Perspectives on the International Law Commission’s Work on Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | Asian States, crimes against humanity, international criminal law, Draft Articles on Prevention and Punishment of Crimes Against Humanity |
Authors | Mari Takeuchi |
AbstractAuthor's information |
No Asian States expressed regret over the failure of the Sixth Committee to reach a consensus on the elaboration of a convention on crimes against humanity. This article examines the comments of Asian States during the Sixth Committee debate on the final Draft Articles submitted by the International Law Commission, demonstrating that most States believed further discussions were needed. It situates these comments against the wider Asian approach to international criminal law, and argues that the concerns of the Asian States during the Sixth Committee are part of a broader context. In doing so, it suggests a common ground for future discussion and the progression of a convention. |
Article |
ILC Report on Prevention and Punishment of Crimes Against Humanity and Enforced Disappearance |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | enforced disappearance, without prejudice clause, Draft Articles, crimes against humanity, commentaries |
Authors | Claudio Grossman |
AbstractAuthor's information |
This article values as an important milestone the Draft Articles on the Prevention and Punishment of Crimes Against Humanity. They greatly contribute to the development of international law, inter alia, seeking to prevent impunity and to establish the duty to prosecute or extradite those who have allegedly committed crimes against humanity. They are a solid basis for a possible diplomatic conference designed to adopt a convention that will establish binding obligations for all ratifying States. The Draft Articles took as a point of departure the Rome Statute of the International Criminal Court to list and define crimes against humanity, and, considering current developments in international law, departed from the Rome Statute so far in two matters: the definition of gender and the treatment of persecution. This article argues why it is essential to follow a similar approach and adopt the definition of enforced disappearance currently used in international conventions that deal with such a horrendous crime. The article also shows why the ‘without prejudice’ clause currently proposed by the Draft Articles is unsatisfactory, depriving States that do not follow the restrictive definition incorporated more than two decades ago in the Rome Statute from the benefits of the proposed convention. |
Article |
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Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Authors | Charles C. Jalloh and Leila N. Sadat |
Author's information |
Article |
An Analysis of State Reactions to the ILC’s Work on Crimes Against HumanityA Pattern of Growing Support |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, Sixth Committee, International Law Commission, Draft Articles, International Criminal Court |
Authors | Leila N. Sadat and Madaline George |
AbstractAuthor's information |
The international community has been engaged with the topic of crimes against humanity since the International Law Commission (ILC) began work on it in 2013, with a view to draft articles for a future convention. Between 2013 and 2019, 86 States as well as several entities and subregional groups made comments on the ILC’s work at the United Nations Sixth Committee or through written comments to the ILC. This article is the culmination of the Whitney R. Harris World Law Institute’s work cataloguing and analysing States’ comments by assigning each statement to one of five categories – strong positive, positive, neutral, negative, and strong negative – examining both specific words and the general tenor of the comments. This article analyses the development of States’ reactions to the ILC’s work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention. |
Article |
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Journal | African Journal of International Criminal Justice, Issue 1 2020 |
Keywords | African Union (AU), United Nations Security Council (UNSC), International Criminal Court (ICC), immunity, impunity |
Authors | Fabrice Tambe Endoh |
AbstractAuthor's information |
The African Union (AU) claims that the International Criminal Court (ICC) is selective against African leaders. The issue therefore arises concerning the validity of the allegations of selectivity. Partly because of such concerns, African Heads of States adopted the Malabo Protocol during their annual summit held in June 2014. Article 46A bis of the Protocol provides immunity for sitting Heads of States. This provision contradicts Article 27 of the Rome Statute and, consequently, arguably reverses the progress made so far in international criminal law by giving priority to immunity in the face of impunity. This article considers the validity of some of the allegations of selective application of criminal sanctions by the ICC and the likely consequence of the Malabo Protocol for regional and international criminal justice. The article argues that the Malabo Protocol should not be ratified by African states until the shield of immunity granted to sitting Heads of States is lifted to better advance the interests of justice for the victims of international crimes in Africa. In addition, the complementarity clause stated in the Malabo Protocol should have a nexus with the ICC such that the Court would be allowed to prosecute the perpetrators of international crimes in circumstances where the African Court of Justice and Human Rights (ACJHR) prove reluctant to do so. |
Legal Documents |
An Integrated, Prosperous and Peaceful AfricaTransitional Justice Policy |
Journal | African Journal of International Criminal Justice, Issue 2 2019 |
Article |
The International Law Commission’s First Draft Convention on Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2019 |
Keywords | Crimes against humanity |
Authors | Charles C. Jalloh B.A. LL.B Ph.D |
AbstractAuthor's information |
The UN General Assembly established the International Law Commission (“ILC”) in 1947 to assist States with the promotion of 1) the progressive development of international law and 2) its codification. The ILC’s first assignment from the General Assembly was to formulate the Nuremberg Principles, which affirmed the then radical idea that individuals can be held liable for certain international crimes at the international level. Since then, the ILC has played a seminal role in the development of modern international criminal law. In 2017, the ILC adopted on first reading a draft convention aimed at the prevention and punishment of crimes against humanity which it transmitted to States for comments. The draft treaty will help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC can take up new topics and the main reasons why it decided to propose a new crimes against humanity convention. Part III discusses positive features of the draft convention, highlighting key aspects of each of the Draft Articles. Part IV critiques the ILC draft treaty focusing on inconsistencies in the use of the ICC definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows a well settled methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law. |
Legal Document |
Summary record of the 11th meeting – A/C.6/73/SR.11Agenda item 87 |
Journal | African Journal of International Criminal Justice, Issue 1-2 2018 |
Article |
Civil Society Perspectives on the Criminal Chamber of the African Court of Justice and Human Rights |
Journal | African Journal of International Criminal Justice, Issue 1-2 2018 |
Keywords | Malabo Protocol, African Court, Criminal Chamber, International and Transnational Crimes, African Union |
Authors | Benson Chinedu Olugbuo LLB BL LLM Ph.D. |
AbstractAuthor's information |
In June 2014, African Heads of States and Governments adopted the Protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights in Malabo, Equatorial Guinea. The Malabo Protocol seeks to expand the jurisdiction of the African Court to international and transnational crimes. This development raises fundamental issues of jurisdiction, capacity, political will and regional complementarity in the fight against impunity in the African continent. The paper interrogates the role of Civil Society Organisations in the adoption and possible operationalisation of the Court in support of the efforts of the African Union to end human rights abuses and commission of international and transnational crimes within the continent. |
Article |
A Proposal for the International Law Commission to Study Universal Criminal Jurisdiction |
Journal | African Journal of International Criminal Justice, Issue 1-2 2018 |
Keywords | Universal Criminal Jurisdiction, International Criminal Law |
Authors | Mr. Charles Chernor Jalloh |
AbstractAuthor's information |
The principle of universal jurisdiction is a unique ground of jurisdiction in international law that may permit a State to exercise national jurisdiction over certain crimes in the interest of the international community. This means that a State may exercise jurisdiction regarding a crime committed by a foreign national against another foreign national outside its territory. Such jurisdiction differs markedly from the traditional bases of jurisdiction under international law, which typically require some type of territorial, nationality or other connection between the State exercising the jurisdiction and the conduct at issue. Due to the definitional and other ambiguities surrounding the universality principle, which has in its past application strained and today continues to strain relations among States at the bilateral, regional and international levels, this paper successfully made the case for the inclusion of “Universal Criminal Jurisdiction” as a topic in the long-term programme of work of the International Law Commission during its Seventieth Session (2018). It was submitted that taking up a study of this timely topic, which has been debated by the Sixth Committee of the UN General Assembly since 2010, could enhance clarity for States and thereby contribute to the rule of law in international affairs. It will also serve to continue the ILC’s seminal contributions to the codification and progressive development of international criminal law. |
Legal Document |
Summary record of the 26th meeting – A/C.6/73/SR.26Agenda item 82 |
Journal | African Journal of International Criminal Justice, Issue 1-2 2018 |
Legal Document |
Summary record of the 35th meeting – A/C.6/73/SR.35Agenda item 82 |
Journal | African Journal of International Criminal Justice, Issue 1-2 2018 |
Legal Document |
Summary record of the 33rd meeting – A/C.6/73/SR.33Agenda item 87 |
Journal | African Journal of International Criminal Justice, Issue 1-2 2018 |
Legal Document |
Summary record of the 22nd meeting – A/C.6/73/SR.22Agenda item 82 |
Journal | African Journal of International Criminal Justice, Issue 1-2 2018 |