Complementing existing protections in armed conflicts and other situations of violence

Any instrument on the prevention and punishment of crimes against humanity would apply concurrently with conventional and customary IHL. It is thus important for its provisions to be compatible with States’ obligations under IHL. The ICRC’s current reading of the 2019 Draft Articles is that they reinforce IHL without modifying or displacing its provisions.¹

The desire for mutual reinforcement between IHL and an eventual instrument on the prevention and punishment of crimes against humanity is apparent in Draft Article 3. The ICRC underlines the importance of paragraphs 2 and 3, which recognize that crimes against humanity are crimes under international law, whether or not they are committed in times of armed conflict, and which further clarify that exceptional circumstances, including armed conflict, do not constitute a justification for crimes against humanity. There is thus no reason to believe that the outbreak of armed conflict -- and application of IHL -- in any specific context would impede the application of an eventual instrument based on these Draft Articles. 

Likewise, the ICRC does not currently see any risk that the present Draft Articles would undermine the role of IHL as a specialized body of law that establishes minimum humanitarian protections in international and non-international armed conflict. There is nothing in the Draft Articles that either explicitly or implicitly alters or sets aside IHL or any of its rules, including the grave breaches regime under the 1949 Geneva Conventions. Moreover, there are no substantive obstacles to concurrent compliance with IHL and the Draft Articles.

The ICRC’s current view is that there is no conflict between the prohibited acts under the 2019 Draft Articles and similar – albeit broader – prohibitions under IHL. 

The widespread or systematic commission of the acts set out in Article 2 against a civilian population is already prohibited under IHL applicable in both international and non-international armed conflict.² The obligation, under Article 6 of the Draft Articles, to criminalize the acts enumerated in Article 2 would therefore not give rise to any conflict with respect to IHL obligations, including those requiring criminalization of grave breaches of the four Geneva Conventions of 1949 and their additional protocols. Nor would it conflict with or undermine any obligations related to the criminalization of other war crimes committed in international or non-international armed conflict. The ICRC therefore considers the substantive prohibitions in the Draft Articles to be compatible with existing IHL. 

At the same time, the ICRC underlines the importance of Draft Article 2(3), which provides that Article 2’s definitions are “without prejudice to any broader definition provided for in any international instrument, in customary international law or in national law.”  Similar terminology and concepts under IHL retain their definitions under that body of law and should be interpreted according to their own context and in light of the object and purpose of IHL. 

The Draft Articles’ provisions on establishment of national jurisdiction, investigation, preliminary measures when an alleged offender is present, and the obligation to prosecute or extradite are also compatible with the rules of IHL governing war crimes committed in both international and non-international armed conflict. Although there are currently no significant discrepancies that would give rise to conflicting legal obligations in a situation of armed conflict, the ICRC would like to share the following observations related to the prosecute-or-extradite (aut dedere aut judicare) obligation.

The ICRC is mindful of proposals by several states to give jurisdictional priority to the state on whose territory the crimes against humanity were committed or to the state of nationality of the perpetrator. These proposals suggest that, when determining whether to prosecute or extradite a person, a state would have a primary obligation to extradite to a state with stronger ties to the perpetrator or crimes, thereby foregoing prosecution in its own courts. 

Conversely, such an approach might also lead to prosecution by a State with strong ties to the perpetrator or the crime in circumstances where extradition would have been preferable. The result would be a hierarchy of jurisdictions depending on the facts and circumstances of arrest of the perpetrator in each case. 

These suggestions depart from past practice. Analogous provisions of IHL do not contain such an obligation; each state may freely choose whether to prosecute or extradite a suspected perpetrator of grave breaches.³ The same prerogative to choose whether to prosecute or extradite is found in numerous other treaties.⁴

The ICRC is concerned that imposing a novel, primary obligation to extradite rather than prosecute (or vice versa) would create incompatibilities between a crimes against humanity treaty and other prosecute-or-extradite regimes, including those under IHL. The resulting uncertainty and incoherence would hamper the object and purpose of both bodies of law. The ICRC therefore recommends against such a prescriptive approach and encourages states to preserve the prerogative to prosecute or extradite depending on the totality of the circumstances in each case. 

An instrument on the prevention and punishment of crimes against humanity based on the 2019 Draft Articles would be not only compatible with IHL, but would reaffirm and reinforce its protections. As evidenced by Draft Article 3, the intended application of an eventual instrument on crime against humanity to situations of armed conflict is without question. The ICRC encourages the Preparatory Committee to continue its work with confidence that the Draft Articles currently pose no challenge to the concurrent application of IHL in armed conflict. 

1. International Law Commission (ILC), Draft articles on Prevention and punishment of crimes against humanity, with commentaries, 2019, A/74/10, paras 1-4, “General Commentary”, pp. 22-23; and paras 1-4, Article 1, “Scope”, pp. 26-27. ↩
2. See, e.g., Common Article 3 (CA3) to the four 1949 Geneva Conventions; Art. 50, Geneva Convention I (GCI); Art. 51, Geneva Convention II (GCII); Art. 130, Geneva Convention III (GCIII); Art. 147, Geneva Convention IV (GCIV); Art. 85, Additional Protocol I (API); See also: Rule 156 of the ICRC Customary IHL Study (CIHL Study). ↩
3. Art. 50, Geneva Convention I (GCI); Art. 51, Geneva Convention II (GCII); Art. 130, Geneva Convention III (GCIII); Art. 147, Geneva Convention IV (GCIV); Art. 85, Additional Protocol I (API). ↩
4. See, among others: Art. 7, UN Convention Against Torture (UNCAT); Art. 11, International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED); Art. VII, UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention); Art. 8, The International Convention against Taking of Hostages (Hostages Convention). ↩