CYIL vol. 13 (2022)

MAREK ZUKAL – JAN MAIS CYIL 13 ȍ2022Ȏ Committee) and could meet outside the busy autumn period. Working group on the other hand can only meet during the session of the Sixth Committee, so the problem of lack of time which small delegations could dedicate to the substantive discussion prevails. It was at the same time agreed that the format itself was less important as long as progress would be made possible by any of those formats. In the plenary debate of the Committee on crimes against humanity, some 60 States made an intervention, majority of which underlined the need for progress in this topic. The Czech Republic expressed the view, that “the 6 th Committee should agree upon creation of an adequate forum for discussions on these issues [i.e., on the substance of the draft articles and on the recommendation to elaborate a convention]. (…) [E]stablishment of an ad hoc committee for discussions during the intersessional period would be the most appropriate way forward” 11 . A minority of States expressed reservations to the possibility of negotiating convention – most vociferously Russia and China, supported by some others (Cuba, Syria or Iran to name just a few). Those delegations claimed that there was no lacuna legis in international law, they criticized inspiration of the draft articles by the Rome Statute of the International Criminal Court, to which not all UN Member States are parties, and they also criticized the principle of universal criminal jurisdiction and its alleged abuses. According to those delegations, there was no consensus on basic issues and concepts. All in all, 46 States supported progress in discussion on draft articles, 6 delegations opposed any progress and 11 delegations expressed unclear positions. After the plenary debate, the bureau-appointed co-facilitators of the resolution (Legal Advisers of Australia, Romania and Singapore) introduced a zero-draft resolution containing several alternatives of the way forward. The draft contained: (a) invitation for States to submit written comments and observations on the draft articles, (b) call upon Member States to hold intersessional informal meetings with the aim of discussing the draft articles, (c) establishment of an ad hoc committee and (d) establishment of a working group of the Sixth Committee. In reaction to this zero-draft, a cross-regional group of some 50 States led by the EU submitted a counter-proposal that they considered to be streamlined and more ambitious (it kept the option of establishing the ad hoc committee for further discussion on the draft articles). During the informal consultations, Russia reacted to the group counter-proposal negatively and stated that another “technical rollover” of the original resolution (i.e., mere update of dates contained in the resolution from the last year) was the only acceptable outcome. Russia also criticized alleged prioritization of this particular ILC product over others. It claimed that Russian experts could not participate in sessions of the ad hoc committee, if established, because of problems with issuance of visa by the Host Country (see details below under the topic of Report of the Committee on Relations with the Host Country). Informal consultations went on for several rounds with no progress. In reaction to them, the facilitators introduced a revised draft of the resolution for further informal consultations. During next rounds of informal consultations, Russia proposed a “package deal” under which they would not oppose progress in issue of crimes against humanity in exchange for support by other States to progress in some other topics (such as Articles on Responsibility of States for Internationally Wrongful Acts or Draft Articles on Responsibility of International Organizations). This proposal was

11 Statement by Mr. Marek Zukal, delivered on behalf of the Czech Republic on October 13, 2021 (available here: https://www.un.org/en/ga/sixth/76/pdfs/statements/cah/08mtg_czechrep.pdf ).

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