- Forging a Convention for Crimes Against Humanity
As Richard Goldstone notes in his foreword to this excellent book, Forging a Convention for Crimes Against Humanity, “while there is a convention dealing with genocide, and the Geneva Conventions deal with serious war crimes, there is no convention that covers crimes against humanity.”1 If the scholars behind the Crimes Against Humanity Initiative (the Initiative) get their way, that will soon change. Drawing on the expertise of more than 200 scholars and dozens of hours in conferences and workshops over three years, the Initiative has produced a comprehensive “Proposed International Convention on the Prevention of Crimes Against Humanity” (“Proposed Convention”) that they hope states will be willing [End Page 904] to ratify.2 This book not only provides the text of the Convention in both English and French, it also offers a “Comprehensive History” of the Convention written by Sadat herself and fifteen essays on various aspects of the Convention written by leading scholars and practitioners of international criminal law.3
There is a great deal to like about the Proposed Convention. Although it breaks little substantive ground, because its definition of crimes against humanity and the modes of participation in those crimes are basically copied verbatim from the Rome Statute, the Convention has the potential to significantly enhance the obligation of states to prosecute crimes against humanity domestically, as well as their ability to cooperate with each other in such prosecutions. In terms of prosecution, Article 8 of the Proposed Convention requires states to incorporate crimes against humanity into their domestic legislation; Article 10 requires states to adopt territorial, active nationality, passive personality, and conditional universal jurisdiction over such crimes; and Article 9 imposes a robust aut de-dere aut judicare regime upon states.4 In terms of cooperation, a series of Annexes limit exceptions to extradition (Annex 2); require states to provide significant and wide-ranging legal assistance to each other, even in the absence of a bilateral Mutual Legal Assistance Treaty (Annex 3); facilitate the transfer criminal proceedings (Annex 4) and suspects for execution of sentence (Annex 5); and require states to recognize the penal judgments of other states that have ratified the Convention (Annex 6). Perhaps most important of all, Article 26 allows the International Court of Justice to resolve disputes “concerning the application of the present Convention, including those relating to the responsibility of a State for alleged breaches thereof.”5
There is also much to like about Sadat’s edited book. The explanatory notes appended to each article in the Proposed Convention are very useful, as is Sadat’s lengthy history of the Convention. A number of the essays are also extremely good. Roger Clark’s opening chapter, “History of Efforts to Codify Crimes Against Humanity: From the Charter of Nuremberg to the Statute of Rome,”6 sets the stage nicely for the later essays on specific legal issues. Göran Sluiter’s analysis of the development of the contextual elements of crimes against humanity7 is by far the best essay ever written on the subject, exhibiting an analytic rigor and a willingness to criticize the unprincipled methodology of the ICTY and ICTR regarding custom that is, unfortunately, far too rare in international criminal law.8 Diane Orentlicher’s essay9 manages, in [End Page 905] only twenty pages, to clearly explain the current legal landscape regarding immunities and amnesties and discuss the Proposed Convention’s somewhat idiosyncratic approach to those issues. And Laura Olson’s essay10 does a masterful job detailing and analyzing the complex cooperation provisions contained in the Convention.
These are not the only positives of the Proposed Convention and the book. Instead of simply singing their praises, however, I want to dedicate the remainder of this review to identifying a few problems with the Proposed Convention and with the book itself. My criticism is intended to be constructive, not destructive—as an outsider’s view of Sadat’s and the Crimes Against Humanity Initiative’s superb efforts.