A Contextual and Historical Analysis of the International Law Commission’s 2017 Draft Articles for a New Global Treaty on Crimes Against Humanity

Abstract

In 2017 the International Law Commission (ILC) adopted 15 draft Articles, a draft Preamble, and a draft Annex on Mutual Legal Assistance, comprising the nucleus of what might someday become a new global treaty on crimes against humanity. This essay examines the history of the ILC draft and analyses several of its major provisions in light of the existing corpus of international criminal law as well as the work of the Crimes Against Humanity Initiative that preceded it. The essay concludes that the ILC draft provides an excellent point of departure for the negotiation of a new treaty on crimes against humanity. It incorporates many elements of the Rome Statute, such as the definition of crimes against humanity, and solidifies the obligations of states to prevent and punish crimes against humanity. It also builds upon modern United Nations conventions on corruption and transnational organized crime to construct a robust model for interstate cooperation, and has other progressive and positive elements. At the same time, the Commission’s work could be enhanced and the new treaty made more robust by addressing certain deficiencies in the draft, many of which would either reinforce the jus cogens nature of the crime or enhance the preventive regime the draft seeks to bring into existence.