CYIL vol. 14 (2023)

MAREK ZUKAL – ANNA MATOUŠKOVÁ

CYIL 14 (2023)

Crimes against humanity Between 2014 and 2019, the ILC addressed the topic of prevention and punishment of crimes against humanity. Its consideration resulted in the adoption on second reading of Draft Articles on Prevention and Punishment of Crimes Against Humanity 5 (hereinafter “CAH”), together with commentaries, on second reading. The CAH were clearly prepared with the intention of providing a basis for a future international convention. The ILC then decided to recommend the CAH to the General Assembly and, in particular, to recommend the elaboration of a convention on the basis of the CAH 6 . In 2019, under the agenda item “Report of the ILC on the work of its seventy-first session”, the General Assembly took note of the CAH and included the item entitled “Crimes against humanity” in the provisional programme of work of its 75 th session. 7 It also decided to continue to examine the recommendation of the ILC to elaborate a convention on the basis of the CAH. 8 In 2020, during the 76 th session of the General Assembly, the Sixth Committee had its first chance to consider the topic of crimes against humanity under a separate agenda item. However, the deliberations resulted in a recommendation to the General Assembly to adopt an identical resolution as was the case in 2019. 9 Some States found this so-called technical rollover unfortunate and warned against “getting caught in a cycle of consideration and postponement of the articles without concrete action”. 10 Finally, in 2021, a meaningful progress towards the elaboration of a convention on the basis of the CAH was seen as a priority by a number of delegations, including the Czech Republic. However, the negotiations were unsuccessful and, despite strong criticism from EU Member States and like-minded countries, another technical rollover of the 2019 resolution was recommended by the Sixth Committee and eventually adopted by the General Assembly. 11 In this context, some delegations criticized the consensus-based decision-making as a working method of the Sixth Committee, as they felt that this practice had been abused. Although several options that would allow for a substantive discussion on the CAH were introduced by the co-facilitators in the zero-draft resolution, including (a) the establishment of an ad hoc committee and (b) the establishment of a working group of the Sixth Committee, these were replaced by a rather vague recommendation to “establish a ‘framework’ for further discussion on the draft articles during the 78 th session of the General Assembly” in the revised version. When the silence procedure was broken, the co-facilitators decided to propose a technical rollover International Law Commission. Report of the International Law Commission. Seventy-first session . 2019 (document A/74/10). Available here: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G22/448/48/ PDF/G2244848.pdf?OpenElement. 7 Resolution of the General Assembly A/RES/74/187, adopted on 30 December 2019. Available here: https:// documents-dds-ny.un.org/doc/UNDOC/GEN/N22/741/58/PDF/N2274158.pdf?OpenElement. 8 Ibidem . 9 Resolution of the General Assembly A/RES/75/136, adopted on 22 December 2020. Available here: https:// documents-dds-ny.un.org/doc/UNDOC/GEN/N22/741/58/PDF/N2274158.pdf?OpenElement. 10 Explanation of Position after adoption delivered by the representative of Mexico (available here: https://www. un.org/en/ga/sixth/75/pdfs/statements/cah/19mtg_mexico.pdf ). 11 Resolution of the General Assembly A/RES/76/114, adopted on 17 December 2021. Available here: https:// documents-dds-ny.un.org/doc/UNDOC/GEN/N21/389/54/PDF/N2138954.pdf?OpenElement. 5 International Law Commission. Draft articles on Prevention and Punishment of Crimes Against Humanity . 2019. Available here: https://legal.un.org/ilc/texts/instruments/english/draft_articles/7_7_2019.pdf. 6

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