Summaries of the Work of the International Law Commission
Draft code of crimes against the peace and security of mankind (Part I)1
See also: Analytical Guide | Texts and Instruments
The task of preparing a draft code of offences against the peace and security of mankind was entrusted to the Commission in 1947, by General Assembly resolution 177 (II) of 21 November 1947, the same resolution that requested it to formulate the Nürnberg principles.
The Commission began its consideration of the draft code of offences at its first session, in 1949, when the Commission appointed Jean Spiropoulos as Special Rapporteur for the subject. It proceeded with its work at its third, fifth and sixth sessions, in 1951, 1953 and 1954, respectively. In connection with its work on the draft code of offences, the Commission had before it the reports of the Special Rapporteur,2 information received from Governments3 as well as documents prepared by the Secretariat.4
At its third session, in 1951, the Commission completed a draft Code of Offences against the Peace and Security of Mankind and submitted it to the General Assembly, together with commentaries thereto.5
In the course of the preparation of the text, the Commission considered that it was not necessary to indicate the exact extent to which the various Nürnberg principles had been incorporated in the draft Code. As to the scope of the draft Code, the Commission decided to limit the Code to offences containing a political element and endangering or disturbing the maintenance of international peace and security. It therefore omitted such matters as piracy, traffic in dangerous drugs, traffic in women and children, slavery, counterfeiting of currency, and damage to submarine cables. The Commission also decided that it would deal only with the criminal responsibility of individuals and that no provisions should be included with respect to crimes by abstract entities.6 (The Nürnberg Tribunal had stated in its judgment that: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”7) Thus, offences enumerated in the draft Code were characterized as “crimes under international law, for which the responsible individuals shall be punishable”.8
The Commission refrained from providing for institutional arrangements for implementing the Code; it thought that, pending the establishment of an international criminal court, the Code might be applied by national courts.9 As the Commission deemed it impracticable to prescribe a definite penalty for each offence, it was left to the competent tribunal to determine the penalty for any offence under the Code, taking into account the gravity of the particular offence.10
At its sixth session, in 1951, the General Assembly postponed consideration of the draft Code until its next session, in view of the fact that the draft had only recently been communicated to Governments for comments. At the Assembly’s seventh session, in 1952, the item was omitted from the final agenda on the understanding that the matter would continue to be considered by the International Law Commission.
The Commission accordingly took up the matter again at its fifth session, in 1953, and requested the Special Rapporteur, Jean Spiropoulos, to prepare a new report for submission at the sixth session.
At its sixth session, in 1954, the Commission considered the report of the Special Rapporteur11 which discussed the observations received from Governments and proposed certain changes in the text previously adopted by the Commission. The Commission decided to modify its previous text in certain respects and added a new offence to the list of crimes, namely, the intervention by the authorities of a State in the internal or external affairs of another State by means of coercive measures. It also decided to omit the condition that inhuman acts against a civil population were crimes only when committed in connection with other offences defined in the draft Code. The rule regarding crimes committed under order by a superior was reworded to say that the perpetrator of such a crime would be responsible if, under the circumstances at the time, it was possible for him not to comply with the order. In addition, the Commission decided to omit the provision dealing with the punishment of the offences defined in the draft Code, as the Commission considered that the question of penalties could more conveniently be dealt with at a later stage, after it had been decided how the Code was to become operative.12
At the same session, the Commission adopted the revised draft Code of Offences against the Peace and Security of Mankind, with commentaries.13
The General Assembly, in resolution 897 (IX) of 4 December 1954, considering that the draft Code raised problems closely related to that of the definition of aggression, decided to postpone further consideration of the draft Code until the new special committee on the question of defining aggression had submitted its report. The report of the special committee was before the General Assembly at its twelfth session, in 1957. At that session, the General Assembly took note of the report and decided to postpone consideration of the question of aggression to a later stage. In view of that decision and the consideration that the draft Code raised problems related to the question of defining aggression, the General Assembly, in resolution 1186 (XII) of 11 December 1957, deferred consideration of the draft Code until such time as it took up again the question of defining aggression. In the same resolution, the General Assembly requested the Secretary-General to transmit the text of the draft Code to Member States for comment, and to submit their replies to the General Assembly at such time as the item might be placed on its provisional agenda.
The item was brought to the attention of the General Assembly in 1968 and again in 1974. The Assembly decided at its twenty-third session, in 1968, not to take up the item. At its twenty-ninth session, in 1974, it decided to consider whether it should take up again the question of a draft code of offences against the peace and security of mankind.
The Commission, in its report on the work of its twenty-ninth session, in 1977, referred to the advisability of the General Assembly giving consideration to the draft Code, including the possibility of its review by the Commission if the Assembly so wished.14
The Assembly, at its thirty-second session, in 1977, acting on the request of seven Member States, decided to include in its agenda the item entitled “Draft Code of Offences against the Peace and Security of Mankind”, and to allocate it to the Sixth Committee. However, because of lack of time, the Assembly agreed to defer consideration of the item until its thirty-third session.15 At that session, the General Assembly adopted resolution 33/97 of 16 December 1978, by which, inter alia, it requested the Secretary-General to invite Member States and relevant international intergovernmental organizations to submit their comments and observations on the draft Code, including comments on the procedure to be adopted, and to prepare a report to be submitted to the Assembly at its thirty-fifth session, in 1980.
The comments received further to General Assembly resolution 33/97 were circulated at the thirty-fifth session of the General Assembly, in 1980.16 At the same session, the General Assembly, in resolution 35/49 of 4 December 1980, requested the Secretary-General to reiterate his invitation to Member States and relevant international intergovernmental organizations to submit or update their comments and observations and in particular to inform him of their views on the procedure to be followed in the future consideration of the item, including the suggestion to have the item referred to the International Law Commission.
(See: Draft code of crimes against the peace and security of mankind (Part II) — including the draft statute for an international criminal court)
1 At its thirty-ninth session, in 1987, the Commission recommended to the General Assembly that it amend the title of the topic in English so that it would read “Draft Code of Crimes against the Peace and Security of Mankind”. The General Assembly agreed with this recommendation in resolution 42/151 of 7 December 1987.
2 See Yearbook … 1950, vol. II, document A/CN.4/25; ibid., 1951, vol. II, document A/CN.4/44; and ibid., 1954, vol. II, document A/CN.4/85. (see Analytical Guide for individual documents)
3 See Yearbook … 1950, vol. II, document A/CN.4/19 and Add.1 and 2; Official Records of the General Assembly, Seventh Session, Annexes, agenda item 54, document A/2162 and Add.1 as well as document A/2162/Add.2. The Commission also examined the comments and observations received from Governments on the formulation of the Nürnberg principles (see Yearbook … 1951, vol. II, document A/CN.4/45 and Add.1 and 2). see Analytical Guide for individual documents)
4 See Yearbook … 1950, vol. II, document A/CN.4/39 as well as document A/CN.4/72. see Analytical Guide for individual documents)
5 See Yearbook … 1951, vol. II, document A/1858, paras. 57 and 59. (see Analytical Guide)
6 See Yearbook … 1951, vol. II, document A/1858, para. 52 (a, b and c).
7 Trial of the Major War Criminals before the International Military Tribunal, Nürnberg, 14 November 1945–1 October 1946, published at Nürnberg, Germany, 1947, p. 223.
8 See Yearbook … 1951, vol. II, document A/1858, para. 59, article 1. (see Analytical Guide)
9 See Yearbook … 1951, vol. II, document A/1858, para. 52 (d). (see Analytical Guide)
10 See Yearbook … 1951, vol. II, document A/1858, para. 59, article 5 and its commentary. (see Analytical Guide)
11 See Yearbook … 1954, vol. II, document A/CN.4/85. (see Analytical Guide)
12 See Yearbook … 1954, vol. II, document A/2693, paras. 50 and 51. (see Analytical Guide)
13 See Yearbook … 1954, vol. II, document A/2693, paras. 49 and 54. (see Analytical Guide)
14 See Yearbook … 1977, vol. II (Part Two), para. 111.
15 See Official Records of the General Assembly, Thirty-second Session, Annexes, agenda item 131, document A/32/470.