CYIL 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ in prosecuting crimes against humanity or crimes under international law, if drafted along the lines of the Convention against Torture (including the “Hague formula”) and other conventions mentioned above and interpreted in accordance with the judgment by the International Court of Justice, could to large extent (depending on its acceptance by states) fill legal gaps in the regime of universal jurisdiction over crimes under international law: all states parties to such a convention ( i.e. even those states which did not have any territorial or personal link with the alleged crime and, therefore, would not be entitled to issue an arrest warrant or request extradition) would have an entitlement or option to insist on performance of obligations under the relevant convention by another state party and make a claim, addressed to the state where the alleged perpetrator is present, for the cessation of any breach of the obligations contained in the convention, including the obligations concerning the prosecution of the alleged offender. Such a regime, even if the convention were not widely accepted, could also influence the formation of customary international law in this area and gradually replace or amend current (disputed and not too clear) concept of universal jurisdiction under customary international law. 5. Relationship of a possible new convention to other relevant treaty regimes One of the most important aspects of the work on a possible new convention on cooperation in the prosecution of crimes against humanity (or also other categories of crimes under international law) will be the relationship of a possible new convention to other relevant, already existing treaty regimes aimed at prosecuting and punishing the crimes under international law and other serious crimes, primarily the Rome Statute. In general, as mentioned by the Commission’s Special Rapporteur for the topic “Crimes against humanity”, the added value of a possible new convention on crimes against humanity (in comparison, in particular, to the Rome Statute) would be the express requirement to enact national laws that criminalize (on wide jurisdictional basis, including the “contractual” universal jurisdiction) crimes against humanity, the express regulation of interstate cooperation and inclusion of the obligations relating to the prevention of crimes against humanity; thus, the possible new convention would substantially strengthen the principle of complementarity, which is one of the basic principles of the Rome Statute. 36 As regards those crimes which should be covered by a future convention, the question is whether such a new convention should adopt exactly the same definitions of these crimes as contained in already existing international legal instruments, namely the Rome Statute (either by the adoption of the relevant provisions “word by word”, or by a simple reference to these definitions), or whether these definitions should be adapted or developed in some way. These discussions are the most pertinent with regard

36 First report, op. cit. sub 9, pp. 10-11.

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