On May 16-17, 2014, forty experts, including twenty members of the ILC, met in Geneva for a conference called “Fulfilling the Dictates of Public Conscience: Moving Forward with a Convention on Crimes Against Humanity”. At the outset, it was observed that the commission of crimes against humanity was on the increase in many regions of the world. This made a new treaty a matter of some urgency and was a reason for the ILC to move the topic to its active agenda and to appoint a Special Rapporteur.

During the two-day meeting varying levels of support were expressed by those present. Some were of the view that it was urgently required while others expressed doubts regarding the need for a new convention and the political feasibility of States accepting such a new convention.

Many aspects of the Proposed Convention were discussed. In the view of this writer, the following were amongst the most pertinent. The lack of jurisdiction of the International Court of Justice was raised in support of a new convention. As emerged from the 2007 judgment in the case of Bosnia-Herzegovina v Serbia & Montenegro the Court was limited, in its consideration of the facts, to the crime of genocide. For that reason serious crimes against humanity effectively fell away. A new convention could allow for a stronger international response.

A new convention would encourage States to incorporate crimes against humanity in their domestic legislation. Some States that have ratified the Rome Statute have already done so. A new Convention would encourage similar legislation from States that have remained outside the Rome Statute and the International Criminal Court. It would also encourage all states party to a new convention to utilize in their domestic courts the substantial body of law on the topic that has come our of the ad hoc and hybrid tribunals as well as the International Criminal Court.

One of the important  advantages of the Proposed Convention is the provision for inter-state cooperation on prosecutions for crimes against humanity. This would include cooperation on evidentiary questions and extradition. In this way prosecutions for crimes against humanity would be expanded beyond the States that have ratified the Rome Statute without imposing any additional obligation to ratify it. It was noted that only 52 States Parties to the Rome Statute have domestic legislation providing for inter-state cooperation on serious international crimes. A new convention would be calculated to encourage more states to follow suit. The Proposed Convention contains a general obligation of state cooperation and in its annexes there are detailed cooperation procedures for such cooperation.

It was emphasized at the conference that the Proposed Convention was essentially complementary to the Rome Statute. Importantly, the definition it incorporates makes no substantial change from that contained in the Rome Statute. A different definition could fragment the law and in that weaken its universal application. Whist on the topic of universality, some participants at the conference stressed the importance of the inclusion of a provision on universal jurisdiction and that States should be obliged to exercise it whether as an obligation of permissively.

The level of enthusiasm at the conference for the Proposed Convention is encouraging and justifies optimism that the ILC will include the topic on its active agenda. It is hoped that the topic will attract the attention of governments that are concerned about the prevention and prosecution of crimes against humanity.