The Universal Duty to Establish Jurisdiction over, and Investigate, Crimes Against Humanity

Abstract

The International Law Commission’s (ILC) draft articles on crimes against humanity contain some key provisions on the duty to establish national jurisdiction over crimes against humanity, under draft Article 7, and on the duty to investigate the possible occurrence of crimes against humanity, pursuant to draft Articles 8 and 9. This article analyses, first, the duty to establish national jurisdiction over crimes against humanity, focusing in particular on the identification of what constitutes ‘territory under a state’s jurisdiction’ and on the principle of universal jurisdiction. Secondly, it delves into the general duty to investigate situations in which crimes against humanity may have been committed, clarifying the circumstances in which such duty would arise and the requirements that related investigations should satisfy. Thirdly, this article deals with the specific duty to carry out a preliminary inquiry into allegations against suspects who are found on the state’s territory — exploring, in particular, the extent to which the pertinent information should be shared with other states and the fair treatment guarantees that draft Article 11 accords to alleged offenders. In suggesting some improvements, this article considers that these draft articles — though representing a welcome development — constitute no more than the bare minimum to be carried out at the international level to prevent and punish crimes against humanity effectively.