Summaries of the Work of the International Law Commission
Crimes against humanity
See also: Analytical Guide | Texts and Instruments
At its sixty-fifth session, in 2013, the Commission included the topic “Crimes against humanity” in its long-term programme of work.1 A syllabus describing the possible overall structure of, and approach to, the topic was annexed to that year’s report of the Commission.2
The General Assembly, in resolution 68/112 of 16 December 2013, took note of the inclusion of the topic in the long-term programme of work of the Commission.
At its sixty-sixth session, in 2014, the Commission decided to include the topic “Crimes against humanity” in its programme of work and appointed Sean D. Murphy as Special Rapporteur for the topic.3
At the sixty-seventh session in 2015, the Commission considered the first report of the Special Rapporteur,4 which assessed, inter alia, the potential benefits of developing a convention on crimes against humanity, the general obligations that existed in various treaty regimes for States to prevent and punish such crimes, and a definition of crimes against humanity for the purpose of the topic. The report contained two draft articles relating respectively to the prevention and punishment of crimes against humanity and to the definition of crimes against humanity. The Commission referred the draft articles to the Drafting Committee and following the report of the Drafting Committee, the Commission provisionally adopted draft articles 1 to 4, together with commentaries thereto.5
Also at its sixty-seventh session, the Commission requested the Secretariat to prepare a memorandum providing information on existing treaty-based monitoring mechanisms which may be of relevance to its future work on the topic.6
At its sixty-eighth session, in 2016, the Commission had before it the second report of the Special Rapporteur on the topic,7 as well as a memorandum by the Secretariat.8 The second report addressed, inter alia, criminalization under national law, establishment of national jurisdiction, general investigation and cooperation for identifying alleged offenders, exercise of national jurisdiction when an alleged offender is present, aut dedere aut judicare and fair treatment of an alleged offender, as well as proposed six draft articles corresponding to such issues (draft articles 5 to 10).9 The Commission referred draft articles 5 to 10 to the Drafting Committee and requested the Drafting Committee to consider the question of the criminal responsibility of legal persons on the basis of a concept paper to be prepared by the Special Rapporteur.10
Following presentation and consideration of two reports of the Drafting Committee, the Commission provisionally adopted draft articles 5 to 10, as well as commentaries thereto.11
At its sixty-ninth session, in 2017, the Commission considered the third report of the Special Rapporteur.12 The report addressed, in particular: extradition, non-refoulement, mutual legal assistance, victims, witnesses and other affected persons, relationship to competent international criminal tribunals, federal State obligations, monitoring mechanisms and dispute settlement, remaining issues, the preamble to the draft articles, and final clauses of a convention. Following presentation and consideration of two reports of the Drafting Committee, the Commission adopted on first reading a draft preamble, a set of 15 draft articles and a draft annex, together with commentaries thereto, on crimes against humanity, and decided, in accordance with articles 16 to 21 of its Statute, to transmit the draft conclusions, through the Secretary-General, to Governments, international organizations and others, for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 December 2018.13
At its seventy-first session, in 2019, the Commission considered the fourth report of the Special Rapporteur,14 as well as comments and observations received from Governments, international organizations and others.15 The fourth report addressed the comments and observations made by Governments, international organizations and others on the draft articles and commentaries adopted on first reading and made recommendations for each draft article. The Commission considered the fourth report of the Special Rapporteur and instructed the Drafting Committee to commence the second reading of the entire set of draft articles on the basis of the proposals by the Special Rapporteur, taking into account the comments and observations of Governments, international organizations and others, as well as the debate in plenary on the Special Rapporteur’s report.16
At the same session, the Commission adopted, on second reading, the entire set of draft articles on prevention and punishment of crimes against humanity, comprising a draft preamble, 15 draft articles and a draft annex, together with commentaries thereto. The Commission decided, in conformity with article 23 of its statute, to recommend the draft articles on prevention and punishment of crimes against humanity to the General Assembly. In particular, the Commission recommended the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles.17
The final draft consists of a draft preamble, fifteen draft articles and a draft annex (relating to article 14). The draft articles were as follows: article 1 (Scope); article 2 (Definition of crimes against humanity); article 3 (General obligations); article 4 (Obligation of prevention); article 5 (Non-refoulement); article 6 (Criminalization under national law); article 7 (Establishment of national jurisdiction); article 8 (Investigation); article 9 (Preliminary measures when an alleged offender is present); article 10 (Aut dedere aut judicare); article 11 (Fair treatment of the alleged offender); article 12 (Victims, witnesses and others); article 13 (Extradition); article 14 (Mutual legal assistance); and article 15 (Settlement of disputes.
By resolutions 74/187 of 18 December 2019, 75/136 of 15 December 2020 and 76/114 of 9 December 2021, respectively, the General Assembly took note of the draft articles on prevention and punishment of crimes against humanity. The General Assembly also decided to include the item “Crimes against humanity” in the provisional agendas of its seventy-fifth, seventy-sixth and seventy-seventh sessions.
By resolution 77/249 of 30 December 2022, the General Assembly took note once again of the draft articles on prevention and punishment of crimes against humanity and decided that the Sixth Committee would resume its session for five days, from 10 to 14 April 2023, and for six days, from 1 to 5 and on 11 April 2024, in order to exchange substantive views, including in an interactive format, on all aspects of the draft articles on prevention and punishment of crimes against humanity, and to consider further the recommendation of the Commission. The General Assembly further decided that a written summary of the deliberations during the two resumed sessions would be prepared by the Sixth Committee at the end of the resumed seventy-eighth session. It invited States to submit, by the end of 2023, written comments and observations on the draft articles and the recommendation of the Commission, to be circulated in a compilation by the Secretary-General well in advance of the resumed seventy-eighth session. Finally, the General Assembly decided that the Sixth Committee would further examine the draft articles and the recommendation of the Commission at the seventy-ninth session and take a decision on the matter, without prejudice to the question of their future adoption or other appropriate action.
1 See Yearbook … 2013, vol. II (Part Two), paras. 169–170.
3 See Yearbook … 2014, vol. II (Part Two), para. 266.
4 See Yearbook … 2015, vol. II (Part One), document A/CN.4/680.
5 See Yearbook … 2015, vol. II (Part Two), paras. 110–114 and 116 and 117.
7 Document A/CN.4/690.
8 Document A/CN.4/698.
9 See Yearbook … 2016, vol. II (Part Two), paras. 79 and 80.
12 Document A/CN.4/704.
13 See Yearbook … 2017, vol. II (Part Two), paras. 45–52.
14 Document A/CN.4/725 and Add.1.
15 Document A/CN.4/726 and Add.1 and Add.2.
16 Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10 and Corr.1 (French only)), paras. 37–38.