No CrossRef data available.
Article contents
The Forty-Eighth Session of the International Law Commission
Published online by Cambridge University Press: 27 February 2017
Abstract
An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
- Type
- Current Developments
- Information
- Copyright
- Copyright © American Society of International Law 1997
References
1 For a brief history of the consideration of the item over the years, see Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 9–13, UN Doc. A/51/10 (1996) [hereinafter 1996 Report].
2 UN Doc. A/CN.4/404 & Corr.l (1995).
3 The text of the draft submitted on first reading is contained in the Report of the International Law Commission on the work of its fortieth session, UN GAOR, 43d Sess., Supp. No. 10, at 198, UN Doc. A/43/10 (1988). The other matters specifically included in the draft submitted on first reading but not referred to the Drafting Committee in 1995 are intervention, colonial domination and other forms of alien domination, apartheid, recruitment, use, financing and training of mercenaries, and international terrorism. The Commission noted when adopting the code that the “inclusion of certain crimes … does not affect the status of other crimes under international law.” 1996 Report, supra note 1, at 13.
4 The elements of individual responsibility for genocide, crimes against humanity, crimes against UN personnel and war crimes are contained in paragraph 3 of Article 2:
3. An individual shall be responsible for a crime set out in article 17, 18, 19 or 20 if that individual:
(a) intentionally commits such a crime;
(b) orders the commission of such a crime which in fact occurs or is attempted;
(c) fails to prevent or repress the commission of such a crime in the circumstances set out in article 6;
(d) knowingly aids, abets or otherwise assists, direcdy and substantially, in the commission of such a crime, including providing the means for its commission;
(e) directly participates in planning or conspiring to commit such a crime which in fact occurs;
(f) directly and publicly incites another individual to commit such a crime which in fact occurs;
(g) attempts to commit such a crime by taking action commencing the execution of a crime which does not in fact occur because of circumstances independent of his intentions.
The elements of individual responsibility for aggression are contained in Article 17.
5 The Commission opted to differ somewhat from the Nuremberg Charter and judgment, which made no express mention of defenses but acquitted defendants on the ground that the prosecution had failed to prove an essential element of the crime. The Commission’s commentary to Article 14 in its paragraphs 3 and 4 makes clear that, in actual practice, the effect of Article 14 is intended to be substantially similar. 1996 Report, supra note 1, at 74.
6 [1951] 2 Y.B. Int’l L. Comm’n 69, paras. 165, 166, UN Doc. A/CN.4/SER.A/1951/Add.1.
7 Judgment of Oct. 1, 1946 (Int’l Mil. Trib., Nuremberg), 41 AJIL 172, 186 (1947).
8 “The perpetrators of an act of aggression are to be found only in those categories of individuals who have the necessary authority or power … . ” Commentary to Art. 16, para. 2, 1996 Report, supra note 1, at 83.
9 Article 16, “Crime of aggression,” provides: “An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.”
10 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (Nuremberg Charter), Aug. 8, 1945, Art. 6(a), 59 Stat. 1544, 82 UNTS 279 (“planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances” (emphasis added)).
11 Dec. 9,1948, 78 UNTS 277 [hereinafter Genocide Convention]. As noted above, the elements of individual responsibility for all of the listed crimes save aggression are set forth in Article 2(3) of the code. The evolution of the specific crime of genocide is succincdy traced in paragraphs 1–3 of the commentary to Article 17, 1996 Report, supra note 1, at 86–87.
12 Article 18, “Crimes against humanity,” provides:
A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group:
(a) murder;
(b) extermination;
(c) torture;
(d) enslavement;
(e) persecution on political, racial, religious or ethnic grounds;
(f) institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population;
(g) arbitrary deportation or forcible transfer of population;
(h) arbitrary imprisonment;
(i) forced disappearance of persons;
(j) rape, enforced prostitution and other forms of sexual abuse;
(k) other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm.
13 Control Council Law No. 10, Control Council for Germany , Official Gazette , Jan. 31, 1946, at 50; Genocide Convention, supra note 11; Statute of the International Tribunal for the former Yugoslavia, UN Doc. S/25704, annex, Art. 5 (1993); and Statute of the International Tribunal for Rwanda, SC Res. 995, annex, Art. 3 (Nov. 8, 1994). As the Yugoslav Tribunal stated: “It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict.” Prosecutor v. Tadic, Appeal on Jurisdiction, UN Doc. IT–94–1–AR72, at 73 (Oct. 2, 1995).
14 Commentary to Art. 18, para. 4, 1996 Report, supra note 1, at 94–95.
15 GA Res. 47/133, UN GAOR, 47th Sess., Supp. No. 49, Vol. 1, at 207, UN Doc. A/47/49 (1992); Inter-American Convention on the Forced Disappearance of Persons, June 9, 1994, 33 ILM 1529 (1994).
16 GA Res. 49/59, UN GAOR, 49th Sess., Supp. No. 49, Vol. 1, at 299, UN Doc. A/49/49 (1994), 34 ILM 482 (1995).
17 Article 20, “War crimes,” provides:
Any of the following war crimes constitutes a crime against the peace and security of mankind when committed in a systematic manner or on a large scale:
(a) any of the following acts committed in violation of international humanitarian law:
(i) wilful killing;
(ii) torture or inhuman treatment, including biological experiments; .
(iii) wilfully causing great suffering or serious injury to body or health;
(iv) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) unlawful deportation or transfer or unlawful confinement of protected persons;
(viii) taking of hostages;
(b) any of the following acts committed wilfully in violation of international humanitarian law and causing death or serious injury to body or health:
(i) making the civilian population or individual civilians the object of attack;
(ii) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
(iii) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
(iv) making a person the object of attack in the knowledge that he is hors de combat;
(v) the perfidious use of the distinctive emblem of the red cross, red crescent or red lion and sun or of other recognized protective signs;
(c) any of the following acts committed wilfully in violation of international humanitarian law:
(i) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies;
(ii) unjustifiable delay in the repatriation of prisoners of war or civilians;
(d) outrages upon personal dignity in violation of international humanitarian law, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
(e) any of the following acts committed in violation of the laws or customs of war:
(i) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(ii) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(iii) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings or buildings or of demilitarized zones;
(iv) seizure of, destruction of or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(v) plunder of public or private property;
(f) any of the following acts committed in violation of international humanitarian law applicable in armed conflict not of an international character:
(i) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
(ii) collective punishments;
(iii) taking of hostages;
(iv) acts of terrorism;
(v) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
(vi) pillage;
(vii) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are generally recognized as indispensable;
(g) in the case of armed conflict, using methods or means of warfare not justified by military necessity with the intent to cause widespread, long-term and severe damage to the natural environment and thereby gravely prejudice the health or survival of the population and such damage occurs.
18 F. V. Garcáa-Amador, Roberto Ago, Willem Riphagen and Gaetano Arangio-Ruiz.
19 The text of part I can be found in Report of the International Law Commission on the work of its twenty-ninth session, [1977] 2 Y.B. Int’l L. Comm’n 9, UN Doc. A/CN.4/SER.A/1977/Add.1 (Part 2).
20 See 87 AJIL 138, 141 (1993); 88 AJIL 134, 135 (1994); 89 AJIL 390, 393 (1995); and 90 AJIL 106, 106 (1996).
21 Article 47, “Countermeasures by an injured State,” provides:
1. For the purposes of the present articles, the taking of countermeasures means that an injured State does not comply with one or more of its obligations towards a State which has committed an internationally wrongful act in order to induce it to comply with its obligations under articles 41 to 46, as long as it has not complied with those obligations and as necessary in the light of its response to the demands of the injured State that it do so.
2. The taking of countermeasures is subject to the conditions and restrictions set out in articles 48 to 50.
3. Where a countermeasure against a State which has committed an internationally wrongful act involves a breach of an obligation towards a third State, such a breach cannot be justified under this chapter as against the third State.
22 Article 50, “Prohibited countermeasures,” provides:
An injured State shall not resort by way of countermeasures to:
(a) threat or use of force as prohibited by the Charter of the United Nations;
(b) extreme economic or political coercion designed to endanger the territorial integrity or political independence of the State which has committed the internationally wrongful act;
(c) any conduct which infringes the inviolability of diplomatic or consular agents, premises, archives and documents;
(d) any conduct which derogates from basic human rights; or
(e) any other conduct in contravention of a peremptory norm of general international law.
23 1996 Report, supra note 1, at 160.
24 See my report on the Commission’s 47th session, 90 AJIL 106, 111 (1996).
25 See my report on Commission’s 46th session, 89 AJIL 390, 395 (1995).
26 See Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 197, UN Doc. A/49/10 (1994).
27 Article 22, “Factors for negotiations,” lists the following:
(a) … the extent to which the State of origin has complied with its obligations of prevention referred to in Chapter II;
(b) … the extent to which the State of origin has exercised due diligence in preventing or minimizing the damage;
(c) the extent to which the State of origin knew or had means of knowing that an activity referred to in article 1 was being or was about to be carried out in its territory or otherwise under its jurisdiction or control;
(d) the extent to which the State of origin benefits from the activity;
(e) the extent to which the affected State shares in the benefit of the activity;
(f) the extent to which assistance to either State is available from or has been provided by third States or international organizations;
(g) the extent to which compensation is reasonably available to or has been provided to injured persons, whether through proceedings in the courts of the State of origin or otherwise;
(h) the extent to which the law of the injured State provides for compensation or other relief for the same harm;
(i) the standards of protection applied in relation to a comparable activity by the affected State and in regional and international practice;
(j) the extent to which the State of origin has taken measures to assist the affected State in minimizing harm.
28 1996 Report, supra note 1, at 6–7.
29 UN Doc. A/CN.4/477 & Add.l (1996).
30 1996 Report, supra note 1, at 171–77.
31 For a brief discussion of these suggested topics, see id. at 328.