CYIL 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ with the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts”. Addition of such a new (undisputed and obvious) element to the text of a possible new international criminal law instrument is definitely possible and can be regarded as a formulation which puts an emphasis on the special seriousness of crimes against humanity. The question is, nevertheless, what should be the added value of such an express reference to the responsibility of states and whether such a reference would strenghten the regime of international cooperation in the prosecution of crimes against humanity. As regards the provision on the settlement of disputes, a simple phrase mentioning “the disputes between two or more States Parties concerning the interpretation or application of this Convention” (contained i.a. in Article 30(1) of the Torture Convention and Article 42(1) of the Convention on Enforced Disappearances) should suffice, since it would also, depending on the subject matter of the dispute, cover disputes relating to the responsibility of a State (breach of a treaty by a State entails State responsibility under international law), but perhaps would not, by expressly mentioning state responsibility, “distract the attention” from the focus of the proposed instrument, which is the prosecution of individual perpetrators of crimes against humanity and cooperation among states in this area. It would also be in line with the text of relevant provisions of other recent international criminal law instruments aimed at prosecuting other serious crimes. Further, the Proposed Convention addresses the liability of legal persons for crimes against humanity. 55 Many participants of the Expert Meeting in May 2014 in Geneva supported the idea that legal persons should be liable for commission of crimes against humanity – mainly for preventative and deterrent purposes. 56 As for other conventions, the liability of legal persons is provided for in the United Nations Convention against Trasnational Organized Crime (Article 10) and the United Nations Convention against Corruption (Article 26); similar provisions are contained also, i.a. , in the International Convention for the Suppression of the Financing of Terrorism (1999), the Council of Europe Convention on the Prevention of Terrorism (2005), the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997) or the Convention on the Protection of the Environment through Criminal Law (1998). On the other hand, the Convention against Torture (1984) and the Convention against Enforced Disappearance (2006) 55 Article 8, paragraph 6 of the Proposed Convention provides: “Each State Party shall adopt such legislative and other measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in crimes against humanity. Subject to the legal principles of the State Party, the liability of legal persons may be criminal, civil or administrative. Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offense. Each State Party shall, in particular, develop administrative measures designed to provide reparation to victims, and to ensure that legal persons held liable in accordance with this article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.”. 56 Op. cit. sub 45, pp. 14-15.

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