CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE CONCEPT OF CRIMES AGAINST HUMANITY final defeat may come very soon (as has been said in 2017). Thanks to offensive activities, mainly by the Iraqi army, and the success of foreign aid coming from abroad, mainly by US Army air attacks, and the attacks of Kurd militia groups in Syria. The International Criminal Court is only complementary to national jurisdiction (complementary principle, Art. 17 of the Rome Statute of the International Criminal Court ). 34 In case of an escape to another country, universal jurisdiction is to be applied. 35 Final remarks The draft convention in International Law Commission is meant as a counterpart to the Genocide Convention ( Convention on the Prevention and Punishment of the Crime of Genocide ), which was concluded in 1948. 36 This implies that this convention is rather conceived to be internally received as domestic penal law. 37 It signifies that the new convention would be binding only for its ratifying State-parties (if any). It remains a treaty-based international penal phenomenon. But the matter established by jus cogens is a category of customary general international law binding for all States. Let’s hope the International Law Commission will entrust the protection of civilian populations to peremptory norms, 38 qualifying it as international criminal law. 39 The 5 August 2017 resolution (S/RES/2371) has changed the situation. 6.

34 See UNTS, vol. 2187, p. 3. Article 17 – Issues of admissibility – 1. “Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable

genuinely to carry out the investigation or prosecution; (…).” 35 See https://en.wikipedia.org/wiki/Universal_jurisdiction.

36 See A/CN.4/680, para. 13: “(…) the (new) convention could require all States parties to take effective measures to prevent crimes against humanity in any territory under their jurisdiction. One such measure would be for States parties to criminalize the offence in its entirety in their national law, a step that most States have not yet taken”. 37 See ČEPELKA Č., Jus cogens and the question of criterions for its determination, Czech Yearbook of Public & Private International Law – 2015, p. 122. 38 ILC has been dealing with jus cogens since 2016. See A/CN.4/693. Although influenced by the Special Rapporteur, see Report on the work of the sixty-sixth session (2014), A/69/10, Annex, Jus Cogens by Dire D. Tladi (South Africa). 39 See https://en.wikipedia.org/wiki/International_criminal_law.

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