CYIL vol. 14 (2023)

MAREK ZUKAL – ANNA MATOUŠKOVÁ CYIL 14 (2023) Legal Advisers from capitals arrived, which changed the dynamics of the deliberations. Most importantly, the session was indeed held in the interactive format promised by the resolution A/RES/77/249, following the model used by the ILC, the so-called “mini-debates”. This format allowed for interventions from the floor so that speakers could react directly to formal statements, which made the debate much more constructive and interesting. States actively participated in the discussion, including critics of the CAH (for example China, Russia or Egypt). It is true that some delegations took advantage of the opportunity to participate more than others, but overall the interactive format was assessed positively among the EU Member States, despite initial scepticism. Prior to the session, the co-facilitators (Malaysia, Iceland, Guatemala) proposed a structured process dividing the individual draft articles into 5 thematic clusters. During the debates on each cluster, the majority of States structured their statements accordingly and commented on the draft articles one by one, so the discussion was easy to follow. The debate repeatedly stalled on the issue of the “non-universality” of the Rome Statute, as recalled by critical delegations who claimed that the CAH were a way to impose the obligations arising from the Rome Statute on non-parties. This argument was raised in particular in relation to the definition of crimes against humanity, which is almost entirely taken from the Rome Statute, and was repeatedly refuted. For example, the representative of the Czech Republic stated in the mini-debate that the adoption of the definition of crimes against humanity from the Rome Statute was not tantamount to granting universality to the Rome Statute as a whole. In other words, the definition may enjoy universal acceptance, while the Rome Statute itself does not. Furthermore, some delegations attempted to politicize the discussion by making some absurd proposals, such as extending the definition of crimes against humanity to include “expressions of neo-Nazism” (Russia) or “imposition of unilateral coercive measures” (Iran). To name just some other points of contention, States did not agree on the application of immunities of state officials, conflicts of jurisdiction, extradition, the death penalty or the definition of gender. In addition to the debate, a briefing by the Secretariat of the Sixth Committee provided general remarks on the authority of the ILC to make recommendations to the General Assembly. The briefing sought to contextualize the recommendation to elaborate a convention on the basis of the CAH within the overall history of the ILC’s recommendations since its establishment. Not surprisingly, the conclusion presented by the Secretariat was that the ILC, as a subsidiary body of the General Assembly, “ has the inherent authority to make recommendations ” 16 and has consistently exercised that authority throughout its existence by “ recommending a range of outcomes for the texts it produced, including, on a number of occasions, the conclusion of international conventions ” 17 on the basis of its products. The Secretariat also recalled that the General Assembly has not always followed the recommendation, opting instead for other actions. The debate was rich and substantive and provided a good basis for future work on this agenda item. As expected, no substantive or procedural conclusions regarding the CAH or the possibility of negotiating a convention were reached at this stage. The Sixth Committee will meet again for resumed session in April 2024. By that time, governments will have submitted their written comments and observations. Together with the co-facilitators’ report, 16 Briefing on the recommendation of the International Law Commission by the Secretariat. Available here: https://www.un.org/en/ga/sixth/77/pdfs/statements/cah/briefing.pdf. 17 Ibidem .

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