Report of The International Law Commission: United Nations

A/74/10
United Nations
Report of the International

Law Commission
Seventy-first session
(29 April–7 June and 8 July–9 August 2019)
General Assembly
Official Records
Seventy-fourth Session
Supplement No. 10 (A/74/10)

A/74/10
General Assembly
Official Records
Seventy-fourth Session
Supplement No. 10
Report of the International Law Commission
Seventy-first session
(29 April–7 June and 8 July–9 August 2019)
United Nations • New York, 2019

Note
Symbols of United Nations documents are composed of capital letters combined
with figures. Mention of such a symbol indicates a reference to a United Nations document.
The word Yearbook followed by suspension points and the year (e.g. Yearbook ...
1971) indicates a reference to the Yearbook of the International Law Commission.
A typeset version of the report of the Commission will be included in Part Two of
volume II of the Yearbook of the International Law Commission 2019.
ISSN: ENG 0251-822X

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Summary of contents
Chapter Page
I. Introduction ................................................................................................................................... 1
II. Summary of the work of the Commission at its seventy-first session ........................................... 5
III. Specific issues on which comments would be of particular interest
to the Commission......................................................................................................................... 8
IV. Crimes against humanity ............................................................................................................... 10
V. Peremptory norms of general international law (jus cogens) ........................................................ 141
VI. Protection of the environment in relation to armed conflicts ........................................................ 209
VII. Succession of States in respect of State responsibility .................................................................. 297
VIII. Immunity of State officials from foreign criminal jurisdiction ..................................................... 310
IX. General principles of law .............................................................................................................. 329
X. Sea-level rise in relation to international law ................................................................................ 340
XI. Other decisions and conclusions of the Commission .................................................................... 342
Annexes
A. Draft model clauses on provisional application of treaties ............................................................ 353
B. Reparation to individuals for gross violations of international human rights law
and serious violations of international humanitarian law .............................................................. 358
C. Prevention and repression of piracy and armed robbery at sea ..................................................... 370
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Contents
Chapter Page
I. Introduction ................................................................................................................................... 1
A. Membership .......................................................................................................................... 1
B. Officers and the Enlarged Bureau ......................................................................................... 2
C. Drafting Committee .............................................................................................................. 2
D. Working Groups and Study Group ....................................................................................... 3
E. Secretariat ............................................................................................................................. 4
F. Agenda .................................................................................................................................. 4
II. Summary of the work of the Commission at its seventy-first session ........................................... 5
III. Specific issues on which comments would be of particular interest to the Commission .............. 8
A. Immunity of State officials from foreign criminal jurisdiction ............................................. 8
B. General principles of law ...................................................................................................... 8
C. Sea-level rise in relation to international law ........................................................................ 8
IV. Crimes against humanity ............................................................................................................... 10
A. Introduction .......................................................................................................................... 10
B. Consideration of the topic at the present session .................................................................. 10
C. Recommendation of the Commission ................................................................................... 10
D. Tribute to the Special Rapporteur ......................................................................................... 11
E. Text of the draft articles on prevention and punishment of crimes against humanity .......... 11
1. Text of the draft articles ............................................................................................... 11
2. Text of the draft articles and commentaries thereto ..................................................... 22
General commentary .................................................................................................... 22
Preamble ..................................................................................................................... 23
Commentary ............................................................................................. 24
Article 1 Scope ........................................................................................................ 26
Commentary ............................................................................................. 26
Article 2 Definition of crimes against humanity ...................................................... 27
Commentary ............................................................................................. 28
Article 3 General obligations ................................................................................... 47
Commentary ............................................................................................. 47
Article 4 Obligation of prevention ........................................................................... 54
Commentary ............................................................................................. 54
Article 5 Non-refoulement ....................................................................................... 62
Commentary ............................................................................................. 62
Article 6 Criminalization under national law........................................................... 66
Commentary ............................................................................................. 66
Article 7 Establishment of national jurisdiction ...................................................... 84
Commentary ............................................................................................. 84
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Article 8 Investigation ............................................................................................. 87

Commentary ............................................................................................. 87
Article 9 Preliminary measures when an alleged offender is present ...................... 90
Commentary ............................................................................................. 90
Article 10 Aut dedere aut judicare ............................................................................ 92
Commentary ............................................................................................. 92
Article 11 Fair treatment of the alleged offender ....................................................... 98
Commentary ............................................................................................. 98
Article 12 Victims, witnesses and others ................................................................... 102
Commentary ............................................................................................. 102
Article 13 Extradition ................................................................................................ 110
Commentary ............................................................................................. 111
Article 14 Mutual legal assistance ............................................................................. 121
Commentary ............................................................................................. 122
Article 15 Settlement of disputes ............................................................................... 129
Commentary ............................................................................................. 129
Annex ........................................................................................................................... 131
Commentary ............................................................................................. 134
V. Peremptory norms of general international law (jus cogens) ........................................................ 141
A. Introduction .......................................................................................................................... 141
C. Text of the draft conclusions on peremptory norms of general international law
(jus cogens), adopted by the Commission on first reading ................................................... 142
1. Text of the draft conclusions ........................................................................................ 142
2. Text of the draft conclusions on peremptory norms of general international
law (jus cogens) and commentaries thereto .................................................................. 147
Part One
Introduction
Conclusion 1 Scope ................................................................................................ 147
Commentary ..................................................................................... 147
Conclusion 2 Definition of a peremptory norm of general
international law (jus cogens) .......................................................... 148
Commentary ..................................................................................... 148
Conclusion 3 General nature of peremptory norms of general
Commentary ..................................................................................... 150
Part Two
Identification of peremptory norms of general international law (jus cogens)
Conclusion 4 Criteria for the identification of a peremptory norm of
general international law (jus cogens) .............................................. 157
Commentary ..................................................................................... 157
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Conclusion 5 Bases for peremptory norms of general

Commentary ..................................................................................... 159
Conclusion 6 Acceptance and recognition ............................................................. 164
Commentary ..................................................................................... 164
Conclusion 7 International community of States as a whole .................................. 165
Commentary ..................................................................................... 165
Conclusion 8 Evidence of acceptance and recognition .......................................... 168
Commentary ..................................................................................... 168
Conclusion 9 Subsidiary means for the determination of the peremptory
character of norms of general international law ............................... 170
Commentary ..................................................................................... 170
Part Three
Legal consequences of peremptory norms of general international law (jus cogens)
Conclusion 10 Treaties conflicting with a peremptory norm of general
Commentary ..................................................................................... 174
Conclusion 11 Separability of treaty provisions conflicting with a peremptory
norm of general international law (jus cogens) ................................ 177
Commentary ..................................................................................... 177
Conclusion 12 Consequences of the invalidity and termination of treaties
conflicting with a peremptory norm of general
Commentary ..................................................................................... 179
Conclusion 13 Absence of effect of reservations to treaties on peremptory norms
of general international law (jus cogens).......................................... 180
Commentary ..................................................................................... 180
Conclusion 14 Rules of customary international law conflicting with a
peremptory norm of general international law (jus cogens) ............. 181
Commentary ..................................................................................... 182
Conclusion 15 Obligations created by unilateral acts of States conflicting
with a peremptory norm of general international law (jus cogens) .. 186
Commentary ..................................................................................... 186
Conclusion 16 Obligations created by resolutions, decisions or other acts
of international organizations conflicting with a peremptory
norm of general international law (jus cogens) ................................ 188
Commentary ..................................................................................... 188
Conclusion 17 Peremptory norms of general international law (jus cogens)
as obligations owed to the international community
as a whole (obligations erga omnes) ................................................ 190
Commentary ..................................................................................... 190
Conclusion 18 Peremptory norms of general international law (jus cogens) and
circumstances precluding wrongfulness ........................................... 193
Commentary ..................................................................................... 193
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Conclusion 19 Particular consequences of serious breaches of peremptory

norms of general international law (jus cogens)............................... 193
Commentary ..................................................................................... 194
Conclusion 20 Interpretation and application consistent with peremptory norms
of general international law (jus cogens) ......................................... 198
Commentary ..................................................................................... 198
Conclusion 21 Procedural requirements ................................................................... 199
Commentary ..................................................................................... 200
Part Four
General provisions
Conclusion 22 Without prejudice to consequences that specific peremptory
norms of general international law (jus cogens)
may otherwise entail ........................................................................ 203
Commentary ..................................................................................... 203
Conclusion 23 Non-exhaustive list........................................................................... 203
Commentary ..................................................................................... 203
Annex .......................................................................................................................... 208
VI. Protection of the environment in relation to armed conflicts ........................................................ 209
A. Introduction .......................................................................................................................... 209
C. Text of the draft principles on protection of the environment in relation
to armed conflicts, adopted by the Commission on first reading .......................................... 211
1. Text of the draft principles ........................................................................................... 211
2. Text of the draft principles on protection of the environment in relation
to armed conflicts and commentaries thereto ............................................................... 215
Part One
Introduction
Commentary ..................................................................................... 215
Principle 1 Scope ................................................................................................ 216
Commentary ..................................................................................... 216
Principle 2 Purpose ............................................................................................. 216
Commentary ..................................................................................... 216
Part Two
Principles of general application
Principle 3 Measures to enhance the protection of the environment ....... 217
Commentary.......................................................................... 217
Principle 4 Designation of protected zones ............................................. 221
Commentary.......................................................................... 221
Principle 5 Protection of the environment of indigenous peoples ........... 225
Commentary.......................................................................... 225
Principle 6 Agreements concerning the presence of military forces
in relation to armed conflict .................................................. 227
Commentary.......................................................................... 227
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Principle 7 Peace operations.................................................................... 230

Commentary.......................................................................... 230
Principle 8 Human displacement ............................................................. 232
Commentary.......................................................................... 232
Principle 9 State responsibility ................................................................ 235
Commentary.......................................................................... 235
Principle 10 Corporate due diligence ........................................................ 238
Commentary.......................................................................... 238
Principle 11 Corporate liability ................................................................. 243
Commentary.......................................................................... 243
Part Three
Principles applicable during armed conflict
Principle 12 Martens Clause with respect to the protection of the
environment in relation to armed conflict ............................. 247
Commentary.......................................................................... 247
Principle 13 General protection of the natural environment
during armed conflict ............................................................ 250
Commentary.......................................................................... 250
Principle 14 Application of the law of armed conflict
to the natural environment .................................................... 254
Commentary.......................................................................... 254
Principle 15 Environmental considerations ............................................... 256
Commentary.......................................................................... 256
Principle 16 Prohibition of reprisals .......................................................... 257
Commentary.......................................................................... 257
Principle 17 Protected zones ..................................................................... 260
Commentary.......................................................................... 260
Principle 18 Prohibition of pillage ............................................................ 260
Commentary.......................................................................... 261
Principle 19 Environmental modification techniques ............................... 264
Commentary.......................................................................... 264
Part Four
Principles applicable in situations of occupation
Introduction
Commentary.......................................................................... 265
Principle 20 General obligations of an Occupying Power......................... 268
Commentary.......................................................................... 268
Principle 21 Sustainable use of natural resources ..................................... 276
Commentary.......................................................................... 276
Principle 22 Due diligence ........................................................................ 278
Commentary.......................................................................... 279
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Part Five
Principles applicable after armed conflict
Principle 23 Peace processes ..................................................................... 280
Commentary.......................................................................... 281
Principle 24 Sharing and granting access to information .......................... 284
Commentary.......................................................................... 284
Principle 25 Post-armed conflict environmental assessments
and remedial measures .......................................................... 288
Commentary.......................................................................... 288
Principle 26 Relief and assistance ............................................................. 289
Commentary.......................................................................... 289
Principle 27 Remnants of war ................................................................... 292
Commentary.......................................................................... 292
Principle 28 Remnants of war at sea ......................................................... 295
Commentary.......................................................................... 295
VII. Succession of States in respect of State responsibility .................................................................. 297
A. Introduction .......................................................................................................................... 297
1. Introduction by the Special Rapporteur of the third report ........................................... 299
2. Summary of the debate ................................................................................................. 301
3. Concluding remarks of the Special Rapporteur ............................................................ 304
C. Text of the draft articles on succession of States in respect of State responsibility
adopted so far by the Commission ........................................................................................ 306
1. Text of the draft articles ............................................................................................... 306
2. Text of the draft articles and commentaries thereto provisionally adopted
by the Commission at its seventy-first session ............................................................. 307
Article 1 Scope ........................................................................................................ 307
Commentary ............................................................................................. 307
Article 2 Use of terms .............................................................................................. 308
Commentary ............................................................................................. 309
Article 5 Cases of succession of States covered by the present draft articles .......... 309
Commentary ............................................................................................. 309
VIII. Immunity of State officials from foreign criminal jurisdiction ..................................................... 310
A. Introduction .......................................................................................................................... 310
1. Introduction by the Special Rapporteur of the sixth and seventh reports ..................... 312
IX. General principles of law .............................................................................................................. 329
A. Introduction .......................................................................................................................... 329
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1. Introduction by the Special Rapporteur of the first report ............................................ 329

X. Sea-level rise in relation to international law ................................................................................ 340
A. Introduction .......................................................................................................................... 340
XI. Other decisions and conclusions of the Commission .................................................................... 342
A. Provisional application of treaties ......................................................................................... 342
B. Sea-level rise in relation to international law ........................................................................ 344
C. Request by the Commission for the Secretariat to prepare studies
on topics in the Commission’s agenda.................................................................................. 344
D. Programme, procedures and working methods of the Commission and its documentation .. 344
1. Working Group on the long-term programme of work ................................................ 345
2. Working Group on methods of work of the Commission ............................................ 345
3. Consideration of General Assembly resolution 73/207 of 20 December 2018
on the rule of law at the national and international levels ............................................ 345
4. Honoraria...................................................................................................................... 347
5. Documentation and publications .................................................................................. 347
6. Yearbook of the International Law Commission .......................................................... 348
7. Assistance of the Codification Division ....................................................................... 348
8. Websites ....................................................................................................................... 348
9. United Nations Audiovisual Library of International Law ........................................... 349
E. Date and place of the seventy-second session of the Commission ....................................... 349
F. Cooperation with other bodies .............................................................................................. 349
G. Representation at the seventy-fourth session of the General Assembly ............................... 350
H. International Law Seminar .................................................................................................... 350
Annexes
A. Draft model clauses on provisional application of treaties ................................................... 353
B. Reparation to individuals for gross violations of international human rights law
and serious violations of international humanitarian law ..................................................... 358
C. Prevention and repression of piracy and armed robbery at sea ............................................. 370
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Chapter I
Introduction
1. The International Law Commission held the first part of its seventy-first session
from 29 April to 7 June 2019 and the second part from 8 July to 9 August 2019 at its seat at
the United Nations Office at Geneva. The session was opened by Mr. Eduardo Valencia-
Ospina, Chair of the seventieth session of the Commission.
A. Membership
2. The Commission consists of the following members:

Mr. Ali Mohsen Fetais Al-Marri (Qatar)
Mr. Carlos J. Argüello Gómez (Nicaragua)
Mr. Bogdan Aurescu (Romania)
Mr. Yacouba Cissé (Côte d’Ivoire)
Ms. Concepción Escobar Hernández (Spain)
Ms. Patrícia Galvão Teles (Portugal)
Mr. Juan Manuel Gómez Robledo (Mexico)
Mr. Claudio Grossman Guiloff (Chile)
Mr. Hussein A. Hassouna (Egypt)
Mr. Mahmoud D. Hmoud (Jordan)
Mr. Huikang Huang (China)
Mr. Charles Chernor Jalloh (Sierra Leone)
Mr. Ahmed Laraba (Algeria)
Ms. Marja Lehto (Finland)
Mr. Shinya Murase (Japan)
Mr. Sean D. Murphy (United States of America)
Mr. Hong Thao Nguyen (Viet Nam)
Mr. Georg Nolte (Germany)
Ms. Nilüfer Oral (Turkey)
Mr. Hassan Ouazzani Chahdi (Morocco)
Mr. Ki Gab Park (Republic of Korea)
Mr. Chris Maina Peter (United Republic of Tanzania)
Mr. Ernest Petrič (Slovenia)
Mr. Aniruddha Rajput (India)
Mr. August Reinisch (Austria)
Mr. Juan José Ruda Santolaria (Peru)
Mr. Gilberto Vergne Saboia (Brazil)
Mr. Pavel Šturma (Czech Republic)
Mr. Dire D. Tladi (South Africa)
Mr. Eduardo Valencia-Ospina (Colombia)
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Mr. Marcelo Vázquez-Bermúdez (Ecuador)

Mr. Amos S. Wako (Kenya)
Sir Michael Wood (United Kingdom of Great Britain and Northern Ireland)
Mr. Evgeny Zagaynov (Russian Federation)
B. Officers and the Enlarged Bureau
3. At its 3453rd meeting, on 29 April 2019, the Commission elected the following
officers:
Chair: Mr. Pavel Šturma (Czech Republic)
First Vice-Chair: Mr. Mahmoud D. Hmoud (Jordan)
Second Vice-Chair: Ms. Nilüfer Oral (Turkey)
Chair of the Drafting Committee: Mr. Claudio Grossman Guiloff (Chile)
Rapporteur: Mr. Charles Chernor Jalloh (Sierra Leone)
4. The Enlarged Bureau of the Commission was composed of the officers of the
present session, the previous Chairs of the Commission1 and the Special Rapporteurs.2
5. At its 3470th meeting on 24 May 2019, the Commission set up a Planning Group
composed of the following members: Mr. Mahmoud D. Hmoud (Chair); Mr. Carlos J.
Argüello Gómez, Mr. Yacouba Cissé, Ms. Concepción Escobar Hernández, Ms. Patrícia
Galvão Teles, Mr. Juan Manuel Gómez Robledo, Mr. Claudio Grossman Guiloff, Mr.
Hussein A. Hassouna, Mr. Huikang Huang, Mr. Ahmed Laraba, Ms. Marja Lehto, Mr.
Shinya Murase, Mr. Sean D. Murphy, Mr. Hong Thao Nguyen, Mr. Georg Nolte, Ms.
Nilüfer Oral, Mr. Hassan Ouazzani Chahdi, Mr. Ki Gab Park, Mr. Ernest Petrič, Mr.
Aniruddha Rajput, Mr. August Reinisch, Mr. Juan José Ruda Santolaria, Mr. Gilberto
Vergne Saboia, Mr. Pavel Šturma, Mr. Dire D. Tladi, Mr. Marcelo Vázquez-Bermúdez, Sir
Michael Wood, Mr. Evgeny Zagaynov and Mr. Charles Chernor Jalloh (ex officio).
C. Drafting Committee
6. At its 3454th, 3458th, 3471st, 3476th, 3488th and 3494th meetings, on 30 April, on
7 and 27 May and on 9, 23 and 30 July 2019, the Commission established a Drafting
Committee, composed of the following members for the topics indicated:
(a) Peremptory norms of general international law (jus cogens): Mr. Claudio
Grossman Guiloff (Chair), Mr. Dire D. Tladi (Special Rapporteur), Mr. Carlos J. Argüello
Gómez, Mr. Yacouba Cissé, Ms. Patrícia Galvão Teles, Mr. Juan Manuel Gómez Robledo,
Mr. Huikang Huang, Ms. Marja Lehto, Mr. Shinya Murase, Mr. Sean D. Murphy, Mr.
Hong Thao Nguyen, Mr. Georg Nolte, Ms. Nilüfer Oral, Mr. Hassan Ouazzani Chahdi, Mr.
Ki Gab Park, Mr. Aniruddha Rajput, Mr. August Reinisch, Mr. Juan José Ruda Santolaria,
Mr. Gilberto Vergne Saboia, Mr. Pavel Šturma, Mr. Marcelo Vázquez-Bermúdez, Sir
Michael Wood, Mr. Evgeny Zagaynov and Mr. Charles Chernor Jalloh (ex officio).
(b) Crimes against humanity: Mr. Claudio Grossman Guiloff (Chair), Mr. Sean
D. Murphy (Special Rapporteur), Mr. Bogdan Aurescu, Ms. Concepción Escobar
Hernández, Ms. Patrícia Galvão Teles, Mr. Mahmoud D. Hmoud, Mr. Huikang Huang, Ms.
Marja Lehto, Mr. Shinya Murase, Mr. Hong Thao Nguyen, Mr. Georg Nolte, Mr. Ki Gab
Park, Mr. Ernest Petrič, Mr. Aniruddha Rajput, Mr. August Reinisch, Mr. Juan José Ruda
Santolaria, Mr. Gilberto Vergne Saboia, Mr. Pavel Šturma, Mr. Dire D. Tladi, Sir Michael
Wood, Mr. Evgeny Zagaynov and Mr. Charles Chernor Jalloh (ex officio).
1 Mr. Georg Nolte, Mr. Ernest Petrič and Mr. Eduardo Valencia-Ospina.
2 Ms. Concepción Escobar Hernández, Mr. Juan Manuel Gómez Robledo, Ms. Marja Lehto, Mr.
Shinya Murase, Mr. Sean D. Murphy, Mr. Dire D. Tladi and Mr. Marcelo Vázquez-Bermúdez.
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(c) Protection of the environment in relation to armed conflicts: Mr. Claudio

Grossman Guiloff (Chair), Ms. Marja Lehto, (Special Rapporteur), Ms. Concepción
Escobar Hernández, Ms. Patrícia Galvão Teles, Mr. Mahmoud D. Hmoud, Mr. Huikang
Huang, Mr. Shinya Murase, Mr. Sean D. Murphy, Mr. Hong Thao Nguyen, Mr. Georg
Nolte, Ms. Nilüfer Oral, Mr. Ki Gab Park, Mr. Aniruddha Rajput, Mr. Juan José Ruda
Santolaria, Mr. Dire D. Tladi, Mr. Marcelo Vázquez-Bermúdez, Sir Michael Wood and Mr.
Charles Chernor Jalloh (ex officio).
(d) Succession of States in respect of State responsibility: Mr. Claudio Grossman
Guiloff (Chair), Mr. Pavel Šturma (Special Rapporteur), Mr. Bogdan Aurescu, Mr.
Huikang Huang, Mr. Sean D. Murphy, Mr. Hong Thao Nguyen, Mr. Georg Nolte, Ms.
Nilüfer Oral, Mr. Ki Gab Park, Mr. August Reinisch, Mr. Juan José Ruda Santolaria, Mr.
Evgeny Zagaynov and Mr. Charles Chernor Jalloh (ex officio).
(e) Immunity of State officials from foreign criminal jurisdiction: Mr. Claudio
Grossman Guiloff (Chair), Ms. Concepción Escobar Hernández (Special Rapporteur), Mr.
Carlos J. Argüello Gómez, Mr. Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Patricia Galvão
Teles, Mr. Juan Manuel Gómez Robledo, Mr. Mahmoud D. Hmoud, Mr. Huikang Huang,
Ms. Marja Lehto, Mr. Shinya Murase, Mr. Sean D. Murphy, Mr. Georg Nolte, Ms. Nilüfer
Oral, Mr. Ki Gab Park, Mr. Aniruddha Rajput, Mr. August Reinisch, Mr. Juan José Ruda
Santolaria, Mr. Gilberto Vergne Saboia, Mr. Dire D. Tladi, Mr. Marcelo Vázquez-
Bermúdez, Sir Michael Wood, Mr. Evgeny Zagaynov and Mr. Charles Chernor Jalloh (ex
officio).
(f) General principles of law: Mr. Claudio Grossman Guiloff (Chair), Mr.
Marcelo Vázquez-Bermúdez (Special Rapporteur), Mr. Carlos J. Argüello Gómez, Ms.
Patricia Galvão Teles, Mr. Juan Manuel Gómez Robledo, Mr. Mahmoud D. Hmoud, Mr.
Huikang Huang, Ms. Marja Lehto, Mr. Shinya Murase, Mr. Sean D. Murphy, Mr. Hong
Thao Nguyen, Mr. Georg Nolte, Ms. Nilüfer Oral, Mr. Ki Gab Park, Mr. August Reinisch,
Mr. Juan José Ruda Santolaria, Mr. Dire D. Tladi, Sir Michael Wood, Mr. Evgeny
Zagaynov and Mr. Charles Chernor Jalloh (ex officio).
7. The Drafting Committee held a total of 43 meetings on the six topics indicated
above.
D. Working Groups and Study Group
8. The Planning Group established the following Working Groups:

(a) Working Group on the long-term programme of work: Mr. Mahmoud D.
Hmoud (Chair), Mr. Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Concepción Escobar
Hernández, Ms. Patrícia Galvão Teles, Mr. Juan Manuel Gómez Robledo, Mr. Claudio
Grossman Guiloff, Mr. Hussein A. Hassouna, Mr. Huikang Huang, Mr. Ahmed Laraba, Ms.
Marja Lehto, Mr. Shinya Murase, Mr. Sean D. Murphy, Mr. Hong Thao Nguyen, Mr.
Georg Nolte, Ms. Nilüfer Oral, Mr. Hassan Ouazzani Chahdi, Mr. Ki Gab Park, Mr. Chris
Maina Peter, Mr. Aniruddha Rajput, Mr. August Reinisch, Mr. Juan José Ruda Santolaria,
Mr. Gilberto Vergne Saboia, Mr. Pavel Šturma, Mr. Dire D. Tladi, Mr. Marcelo Vázquez-
Bermúdez, Mr. Amos S. Wako, Sir Michael Wood, Mr. Evgeny Zagaynov and Mr. Charles
Chernor Jalloh (ex officio).
(b) Working Group on methods of work: Mr. Hussein A. Hassouna (Chair), Mr.
Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Concepción Escobar Hernández, Ms. Patrícia
Galvão Teles, Mr. Juan Manuel Gómez Robledo, Mr. Claudio Grossman Guiloff, Mr.
Huikang Huang, Ms. Marja Lehto, Mr. Shinya Murase, Mr. Sean D. Murphy, Mr. Hong
Thao Nguyen, Mr. Georg Nolte, Ms. Nilüfer Oral, Mr. Hassan Ouazzani Chahdi, Mr. Ki
Gab Park, Mr. Ernest Petrič, Mr. Aniruddha Rajput, Mr. August Reinisch, Mr. Juan José
Ruda Santolaria, Mr. Gilberto Vergne Saboia, Mr. Pavel Šturma, Mr. Dire D. Tladi, Mr.
Eduardo Valencia-Ospina, Mr. Marcelo Vázquez-Bermúdez, Sir Michael Wood, Mr.
Evgeny Zagaynov and Mr. Charles Chernor Jalloh (ex officio).
9. At its 3467th meeting, on 21 May 2019, the Commission established an open-ended
Study Group on sea-level rise in relation to international law, to be co-chaired, on a rotating
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basis, by: Mr. Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Patrícia Galvão Teles, Ms. Nilüfer
Oral and Mr. Juan José Ruda Santolaria.
E. Secretariat
10. Mr. Miguel de Serpa Soares, Under-Secretary-General for Legal Affairs and United
Nations Legal Counsel, represented the Secretary-General. Mr. Huw Llewellyn, Director of
the Codification Division of the Office of Legal Affairs, acted as Secretary to the
Commission and, in the absence of the Legal Counsel, represented the Secretary-General.
Mr. Arnold Pronto and Ms. Jessica M. Elbaz, Principal Legal Officers, served as Principal
Assistant Secretaries to the Commission. Mr. Trevor Chimimba, Senior Legal Officer,
served as Senior Assistant Secretary to the Commission. Mr. David Nanopoulos, Ms. Carla
Hoe and Ms. Christiane Ahlborn, Legal Officers, and Ms. Shin Yi Mak, Associate Legal
Officer, served as Assistant Secretaries to the Commission.
F. Agenda
11. The Commission adopted an agenda for its seventy-first session consisting of the
following items:
1. Organization of the work of the session.
2. Immunity of State officials from foreign criminal jurisdiction.
3. Crimes against humanity.
4. Protection of the environment in relation to armed conflicts.
5. Peremptory norms of general international law (jus cogens).
6. Succession of States in respect of State responsibility.
7. General principles of law.
8. Sea-level rise in relation to international law.
9. Programme, procedures and working methods of the Commission and its
documentation.
10. Date and place of the seventy-second session.
11. Cooperation with other bodies.
12. Other business.
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Chapter II
Summary of the work of the Commission at its seventy-first
session
12. With respect to the topic “Crimes against humanity”, the Commission had before
it the fourth report of the Special Rapporteur (A/CN.4/725 and Add.1), as well as
comments and observations received from Governments, international organizations and
others (A/CN.4/726, Add.1 and Add.2). The fourth report addressed the comments and
observations made by Governments, international organizations and others on the draft
articles and commentaries adopted on first reading and made recommendations for each
draft article.
13. The Commission adopted, on second reading, the entire set of draft articles on
prevention and punishment of crimes against humanity, comprising a draft preamble, 15
draft articles and a draft annex, together with commentaries thereto. The Commission
decided, in conformity with article 23 of its statute, to recommend the draft articles on
prevention and punishment of crimes against humanity to the General Assembly. In
particular, the Commission recommended the elaboration of a convention by the General
Assembly or by an international conference of plenipotentiaries on the basis of the draft
articles (chap. IV).
14. With regard to the topic “Peremptory norms of general international law (jus
cogens)”, the Commission had before it the fourth report of the Special Rapporteur
(A/CN.4/727), which discussed the question of the existence of regional jus cogens and the
inclusion of an illustrative list, based on norms previously recognized by the Commission
as possessing a peremptory character. Following the plenary debate, the Commission
decided to refer the draft conclusion proposed in the fourth report to the Drafting
Committee.
15. The Commission subsequently adopted, on first reading, 23 draft conclusions and a
draft annex, together with commentaries thereto, on peremptory norms of general
international law (jus cogens). The Commission decided, in accordance with articles 16 to
21 of its statute, to transmit the draft conclusions, through the Secretary-General, to
Governments for comments and observations, with the request that such comments and
observations be submitted to the Secretary-General by 1 December 2020 (chap. V).
16. With respect to the topic “Protection of the environment in relation to armed
conflicts”, the Commission had before it the second report of the Special Rapporteur
(A/CN.4/728), which discussed questions related to the protection of the environment in
non-international armed conflicts, and matters related to responsibility and liability for
environmental damage. Following the plenary debate, the Commission decided to refer the
seven draft principles, as proposed by the Special Rapporteur in her second report, to the
Drafting Committee.
17. As a result of its consideration of the topic at the present session, the Commission
adopted, on first reading, 28 draft principles, together with commentaries thereto, on
protection of the environment in relation to armed conflicts. The Commission decided, in
accordance with articles 16 to 21 of its statute, to transmit the draft principles, through the
Secretary-General, to Governments, international organizations, including from the United
Nations and its Environment Programme, and others, including the International Committee
of the Red Cross and the Environmental Law Institute, for comments and observations,
with the request that such comments and observations be submitted to the Secretary-
General by 1 December 2020 (chap. VI).
18. With regard to the topic “Succession of States in respect of State responsibility”,
the Commission had before it the third report of the Special Rapporteur (A/CN.4/731),
which addressed introductory issues, including certain general considerations, questions of
reparation for injury resulting from internationally wrongful acts committed against the
predecessor State as well as its nationals, and technical proposals in relation to the scheme
of the draft articles. Following the debate in plenary, the Commission decided to refer draft
articles 2, paragraph (f), X, Y, 12, 13, 14 and 15, and the titles of Part Two and Part Three,
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as contained in the third report of the Special Rapporteur, to the Drafting Committee. Upon
its consideration of a first report of the Drafting Committee, the Commission provisionally
adopted draft articles 1, 2 and 5, with commentaries thereto. Furthermore, the Commission
took note of the interim report of the Chair of the Drafting Committee on draft articles 7, 8
and 9 provisionally adopted by the Committee, which was presented to the Commission for
information only (chap. VII).
19. With regard to the topic “Immunity of State officials from foreign criminal
jurisdiction”, the Commission had before it the sixth (A/CN.4/722) and the seventh
(A/CN.4/729) reports of the Special Rapporteur, which were devoted to addressing
procedural aspects of immunity from foreign criminal jurisdiction. In particular, the sixth
report, on which the debate was not completed at the seventieth session in 2018, provided
an analysis of three components of procedural aspects related to the concept of jurisdiction,
namely: (a) timing; (b) kinds of acts affected; and (c) the determination of immunity. The
seventh report completed the examination of the procedural aspects of immunity regarding
the relationship between jurisdiction and the procedural aspects of immunity; addressed
questions concerning the invocation of immunity and the waiver of immunity; examined
aspects concerning procedural safeguards related to the State of the forum and the State of
the official, considered the procedural rights and safeguards of the official, and proposed
nine draft articles. Following the debate in plenary, the Commission decided to refer draft
articles 8 to 16 to the Drafting Committee, taking into account the debate and proposals
made in plenary. The Commission received and took note of the interim report of the Chair
of the Drafting Committee on draft article 8 ante, which was presented to the Commission
for information only (chap. VIII).
20. With regard to the topic “General principles of law”, the Commission had before it
the first report of the Special Rapporteur (A/CN.4/732), which addressed the scope of the
topic and the main issues to be addressed in the course of the work of the Commission. The
report also addressed previous work of the Commission related to general principles of law
and provided an overview of the development of general principles of law over time, as
well as an initial assessment of certain basic aspects of the topic and future work on the
topic. Following the debate in plenary, the Commission decided to refer draft conclusions 1
to 3, as contained in the report of the Special Rapporteur, to the Drafting Committee. The
Commission subsequently took note of the interim report of the Chair of the Drafting
Committee on draft conclusion 1 provisionally adopted by the Committee, which was
presented to the Commission for information only (chap. IX).
21. With respect to the topic “Sea-level rise in relation to international law”, the
Commission decided to include the topic in its programme of work and established a Study
Group, to be co-chaired, on a rotating basis, by Mr. Bogdan Aurescu, Mr. Yacouba Cissé,
Ms. Patrícia Galvão Teles, Ms. Nilüfer Oral and Mr. Juan José Ruda Santolaria. The Study
Group held one meeting, at which time it agreed on its composition, methods and
programme of work, based on the three subtopics identified in the syllabus. The
Commission subsequently took note of the joint oral report of the Co-Chairs of the Study
Group (chaps. X and XI, sect. B).
22. As regards “Other decisions and conclusions of the Commission”, the
Commission took note of an oral report of the Special Rapporteur on the topic “Provisional
application of treaties”, Mr. Juan Manuel Gómez Robledo, on the informal consultations
convened to consider the draft model clauses on provisional application of treaties, and
decided to annex the Special Rapporteur’s revised proposal for the draft model clauses to
the report, with a view to seeking comments from Governments in advance of the
commencement of the second reading of the draft Guide to Provisional Application of
Treaties at the seventy-second session of the Commission (chap. XI, sect. A, and annex A).
23. The Commission re-established a Planning Group to consider its programme,
procedures and working methods, which in turn decided to re-establish the Working Group
on the long-term programme of work, chaired by Mr. Mahmoud D. Hmoud, and the
Working Group on methods of work, chaired by Mr. Hussein A. Hassouna (chap. XI, sect.
D). The Commission decided to include in its long-term programme of work the topics: (a)
“Reparation to individuals for gross violations of international human rights law and
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serious violations of international humanitarian law”; and (b) “Prevention and

repression of piracy and armed robbery at sea” (chap. XI, sect. D, and annexes B and C).
24. The Commission received Mr. Abdulqawi Ahmed Yusuf, President of the
International Court of Justice and continued its traditional exchanges of information with
the Committee of Legal Advisers on Public International Law of the Council of Europe; the
Inter-American Juridical Committee; the Asian-African Legal Consultative Organization;
and the African Union Commission on International Law. Members of the Commission
also held an informal exchange of views with the International Committee of the Red Cross
(chap. XI, sect. F).
25. The Commission decided that its seventy-second session would be held in Geneva
from 27 April to 5 June and from 6 July to 7 August 2020 (chap. XI, sect. E).
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Chapter III
Specific issues on which comments would be of particular
interest to the Commission
26. The Commission wishes to recall the adoption, at its seventieth session in 2018, of
the first reading text of the draft Guide to Provisional Application of Treaties, and the
subsequent request for comments and observations from Governments and international
organizations.3 The Commission would invite Governments and international organizations
to consider also including comments and observations on the draft model clauses on
provisional application of treaties, contained in annex A to the present report.
27. The Commission considers as still relevant the request for information contained in
chapter III of the report of its seventieth session (2018) on the topic “Succession of States
in respect of State responsibility”,4 and would welcome any additional information.
28. The Commission would also welcome receiving any information in response to the
following questions and requests, by 31 December 2019 (except where stipulated
otherwise), in order for it to be taken into account in the respective reports of the Special
Rapporteurs and co-Chairs of the Study Group on sea-level rise in relation to international
law.
A. Immunity of State officials from foreign criminal jurisdiction
29. The Commission would welcome any information that States could provide on the
existence of manuals, guidelines, protocols or operational instructions addressed to State
officials and bodies that are competent to take any decision that may affect foreign officials
and their immunity from criminal jurisdiction in the territory of the forum State.
B. General principles of law
30. The Commission requests States to provide information on their practice relating to
general principles of law, in the sense of Article 38, paragraph 1 (c), of the Statute of the
International Court of Justice, including as set out in:
(a) decisions of national courts, legislation and any other relevant practice at the
domestic level;
(b) pleadings before international courts and tribunals;
(c) statements made in international organizations, international conferences and
other forums; and
(d) treaty practice.
C. Sea-level rise in relation to international law
31. The Commission would welcome any information that States, international
organizations and the International Red Cross and Red Crescent Movement could provide
on their practice and other relevant information concerning sea-level rise in relation to
international law.
32. At the seventy-second session (2020), the Study Group will focus on the subject of
sea-level rise in relation to the law of the sea. In this connection, the Commission would
appreciate receiving, by 31 December 2019, examples from States of their practice that may
be relevant (even if indirectly) to sea-level rise or other changes in circumstances of a
similar nature. Such practice could, for example, relate to baselines and where applicable
3 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10), para.
88.
4 Ibid., para. 36.
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archipelagic baselines, closing lines, low-tide elevations, islands, artificial islands, land
reclamation and other coastal fortification measures, limits of maritime zones, delimitation
of maritime boundaries, and any other issues relevant to the subject. Relevant materials
could include:
(a) bilateral or multilateral treaties, in particular maritime boundary delimitation
treaties;
(b) national legislation or regulations, in particular any provisions related to the
effects of sea-level rise on baselines and/or more generally on maritime zones;
(c) declarations, statements or other communications in relation to treaties or
State practice;
(d) jurisprudence of national or international courts or tribunals and outcomes of
other relevant processes for the settlement of disputes related to the law of the sea;
(e) any observations in relation to sea-level rise in the context of the obligation
of States parties under the United Nations Convention on the Law of the Sea to deposit
charts and/or lists of geographical coordinates of points; and
(f) any other relevant information, for example, statements made at international
forums, as well as legal opinions, and studies.
33. The Commission would further welcome receiving in due course any information
related to statehood and the protection of persons affected by sea-level rise, as outlined in
the syllabus of the topic,5 both of which will be considered by the Study Group during the
seventy-third session (2021) of the Commission.
5 Ibid., annex B.
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Chapter IV
Crimes against humanity
A. Introduction
34. At its sixty-sixth session (2014), the Commission decided to include the topic
“Crimes against humanity” in its programme of work and appointed Mr. Sean D. Murphy
as Special Rapporteur.6 The General Assembly, in paragraph 7 of its resolution 69/118 of
10 December 2014, subsequently took note of the decision of the Commission to include
the topic in its programme of work.
35. From its sixty-seventh session (2015) to its sixty-ninth session (2017), the
Commission considered the topic on the basis of three successive reports submitted by the
Special Rapporteur,7 and a memorandum by the Secretariat. 8
36. At its sixty-ninth session (2017), the Commission adopted, on first reading, the
entire set of draft articles on crimes against humanity, which comprised a draft preamble,
15 draft articles and a draft annex, together with commentaries thereto. 9 It decided, in
accordance with articles 16 to 21 of its statute, to transmit the draft articles, through the
Secretary-General, to Governments, international organizations and others for comments
and observations.10
B. Consideration of the topic at the present session
37. At the present session, the Commission had before it the fourth report of the Special
Rapporteur (A/CN.4/725 and Add.1), as well as comments and observations received from
Governments, international organizations and others (A/CN.4/726, Add.1 and 2).
38. At its 3453rd to 3458th meetings, from 29 April to 7 May 2019, the Commission
considered the fourth report of the Special Rapporteur and instructed the Drafting
Committee to commence the second reading of the entire set of draft articles on the basis of
the proposals by the Special Rapporteur, taking into account the comments and
observations of Governments, international organizations and others, as well as the debate
in plenary on the Special Rapporteur’s report.
39. The Commission considered the report of the Drafting Committee (A/CN.4/L.935)
at its 3468th meeting, held on 22 May 2019, and adopted the entire set of draft articles on
prevention and punishment of crimes against humanity on second reading (sect. E.1 below).
40. At its 3496th to 3499th meetings, from 31 July to 5 August 2019, the Commission
adopted the commentaries to the aforementioned draft articles (see sect. E.2 below).
41. In accordance with its statute, the Commission submits the draft articles to the
General Assembly, with the recommendation set out below.
C. Recommendation of the Commission
42. At its 3499th meeting, on 5 August 2019, the Commission decided, in conformity
with article 23 of its statute, to recommend the draft articles on prevention and punishment
of crimes against humanity to the General Assembly. In particular, the Commission
recommended the elaboration of a convention by the General Assembly or by an
international conference of plenipotentiaries on the basis of the draft articles.
6 Official Records of the General Assembly, Sixty-ninth Session, Supplement No. 10 (A/69/10), para.
266.
7 See A/CN.4/680 and Corr.1 (first report), A/CN.4/690 (second report), and A/CN.4/704 (third report).
8 A/CN.4/698.
9 Official Records of the General Assembly, Seventy-second Session, Supplement No. 10 (A/72/10),
paras. 38–42.
10 Ibid., para. 43.
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D. Tribute to the Special Rapporteur
43. At its 3499th meeting, held on 5 August 2019, the Commission, after adopting the
draft articles on prevention and punishment of crimes against humanity, adopted the
following resolution by acclamation:
“The International Law Commission,
Having adopted the draft articles on prevention and punishment of crimes against
humanity,
Expresses to the Special Rapporteur, Mr. Sean D. Murphy, its deep appreciation and
warm congratulations for the outstanding contribution he has made to the
preparation of the draft articles through his tireless efforts and devoted work, and for
the results achieved in the elaboration of the draft articles on prevention and
punishment of crimes against humanity.”
E. Text of the draft articles on prevention and punishment of crimes

against humanity
1. Text of the draft articles

44. The text of the draft articles adopted by the Commission, on second reading, at its
seventy-first session is reproduced below.
Prevention and punishment of crimes against humanity
…
Mindful that throughout history millions of children, women and men have
been victims of crimes that deeply shock the conscience of humanity,
Recognizing that crimes against humanity threaten the peace, security and
well-being of the world,
Recalling the principles of international law embodied in the Charter of the
United Nations,
Recalling also that the prohibition of crimes against humanity is a
peremptory norm of general international law (jus cogens),
Affirming that crimes against humanity, which are among the most serious
crimes of concern to the international community as a whole, must be prevented in
conformity with international law,
Determined to put an end to impunity for the perpetrators of these crimes and
thus to contribute to the prevention of such crimes,
Considering the definition of crimes against humanity set forth in article 7 of
the Rome Statute of the International Criminal Court,
Recalling that it is the duty of every State to exercise its criminal jurisdiction
with respect to crimes against humanity,
Considering the rights of victims, witnesses and others in relation to crimes
against humanity, as well as the right of alleged offenders to fair treatment,
Considering also that, because crimes against humanity must not go
unpunished, the effective prosecution of such crimes must be ensured by taking
measures at the national level and by enhancing international cooperation, including
with respect to extradition and mutual legal assistance,
…
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Article 1
Scope
The present draft articles apply to the prevention and punishment of crimes
against humanity.
Article 2
Definition of crimes against humanity
1. For the purpose of the present draft articles, “crime against humanity” means
any of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation or forcible transfer of population;
(e) imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;
(f) torture;
(g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender, or other grounds that are
universally recognized as impermissible under international law, in connection with
any act referred to in this paragraph;
(i) enforced disappearance of persons;
(j) the crime of apartheid;
(k) other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) “attack directed against any civilian population” means a course of
conduct involving the multiple commission of acts referred to in paragraph 1 against
any civilian population, pursuant to or in furtherance of a State or organizational
policy to commit such attack;
(b) “extermination” includes the intentional infliction of conditions of life,
inter alia the deprivation of access to food and medicine, calculated to bring about
the destruction of part of a population;
(c) “enslavement” means the exercise of any or all of the powers
attaching to the right of ownership over a person and includes the exercise of such
power in the course of trafficking in persons, in particular women and children;
(d) “deportation or forcible transfer of population” means forced
displacement of the persons concerned by expulsion or other coercive acts from the
area in which they are lawfully present, without grounds permitted under
international law;
(e) “torture” means the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person in the custody or under the control of the
accused; except that torture shall not include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions;
(f) “forced pregnancy” means the unlawful confinement of a woman
forcibly made pregnant, with the intent of affecting the ethnic composition of any
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population or carrying out other grave violations of international law. This definition
shall not in any way be interpreted as affecting national laws relating to pregnancy;
(g) “persecution” means the intentional and severe deprivation of
fundamental rights contrary to international law by reason of the identity of the
group or collectivity;
(h) “the crime of apartheid” means inhumane acts of a character similar to
those referred to in paragraph 1, committed in the context of an institutionalized
regime of systematic oppression and domination by one racial group over any other
racial group or groups and committed with the intention of maintaining that regime;
(i) “enforced disappearance of persons” means the arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence of, a
State or a political organization, followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or whereabouts of those
persons, with the intention of removing them from the protection of the law for a
prolonged period of time.
3. This draft article is without prejudice to any broader definition provided for
in any international instrument, in customary international law or in national law.
Article 3
General obligations
1. Each State has the obligation not to engage in acts that constitute crimes
against humanity.
2. Each State undertakes to prevent and to punish crimes against humanity,
which are crimes under international law, whether or not committed in time of
armed conflict.
3. No exceptional circumstances whatsoever, such as armed conflict, internal
political instability or other public emergency, may be invoked as a justification of
crimes against humanity.
Article 4
Obligation of prevention
Each State undertakes to prevent crimes against humanity, in conformity with
international law, through:
(a) effective legislative, administrative, judicial or other appropriate
preventive measures in any territory under its jurisdiction; and
(b) cooperation with other States, relevant intergovernmental
organizations, and, as appropriate, other organizations.
Article 5
Non-refoulement
1. No State shall expel, return (refouler), surrender or extradite a person to
another State where there are substantial grounds for believing that he or she would
be in danger of being subjected to a crime against humanity.
2. For the purpose of determining whether there are such grounds, the
competent authorities shall take into account all relevant considerations, including,
where applicable, the existence in the State concerned of a consistent pattern of
gross, flagrant or mass violations of human rights or of serious violations of
international humanitarian law.
Article 6
Criminalization under national law
1. Each State shall take the necessary measures to ensure that crimes against
humanity constitute offences under its criminal law.
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2. Each State shall take the necessary measures to ensure that the following acts
are offences under its criminal law:
(a) committing a crime against humanity;
(b) attempting to commit such a crime; and
(c) ordering, soliciting, inducing, aiding, abetting or otherwise assisting in
or contributing to the commission or attempted commission of such a crime.
3. Each State shall also take the necessary measures to ensure that commanders
and other superiors are criminally responsible for crimes against humanity
committed by their subordinates if they knew, or had reason to know, that the
subordinates were about to commit or were committing such crimes and did not take
all necessary and reasonable measures in their power to prevent their commission, or
if such crimes had been committed, to punish the persons responsible.
4. Each State shall take the necessary measures to ensure that, under its criminal
law, the fact that an offence referred to in this draft article was committed pursuant
to an order of a Government or of a superior, whether military or civilian, is not a
ground for excluding criminal responsibility of a subordinate.
law, the fact that an offence referred to in this draft article was committed by a
person holding an official position is not a ground for excluding criminal
responsibility.
law, the offences referred to in this draft article shall not be subject to any statute of
limitations.
law, the offences referred to in this draft article shall be punishable by appropriate
penalties that take into account their grave nature.
8. Subject to the provisions of its national law, each State shall take measures,
where appropriate, to establish the liability of legal persons for the offences referred
to in this draft article. Subject to the legal principles of the State, such liability of
legal persons may be criminal, civil or administrative.
Article 7
Establishment of national jurisdiction
1. Each State shall take the necessary measures to establish its jurisdiction over
the offences covered by the present draft articles in the following cases:
(a) when the offence is committed in any territory under its jurisdiction or
on board a ship or aircraft registered in that State;
(b) when the alleged offender is a national of that State or, if that State
considers it appropriate, a stateless person who is habitually resident in that State’s
territory;
(c) when the victim is a national of that State if that State considers it
appropriate.
2. Each State shall also take the necessary measures to establish its jurisdiction
over the offences covered by the present draft articles in cases where the alleged
offender is present in any territory under its jurisdiction and it does not extradite or
surrender the person in accordance with the present draft articles.
3. The present draft articles do not exclude the exercise of any criminal
jurisdiction established by a State in accordance with its national law.
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Article 8
Investigation
Each State shall ensure that its competent authorities proceed to a prompt,
thorough and impartial investigation whenever there is reasonable ground to believe
that acts constituting crimes against humanity have been or are being committed in
any territory under its jurisdiction.
Article 9
Preliminary measures when an alleged offender is present
1. Upon being satisfied, after an examination of information available to it, that
the circumstances so warrant, any State in the territory under whose jurisdiction a
person alleged to have committed any offence covered by the present draft articles is
present shall take the person into custody or take other legal measures to ensure his
or her presence. The custody and other legal measures shall be as provided in the
law of that State, but may be continued only for such time as is necessary to enable
any criminal, extradition or surrender proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.
3. When a State, pursuant to this draft article, has taken a person into custody, it
shall immediately notify the States referred to in draft article 7, paragraph 1, of the
fact that such person is in custody and of the circumstances which warrant his or her
detention. The State which makes the preliminary inquiry contemplated in paragraph
2 of this draft article shall, as appropriate, promptly report its findings to the said
States and shall indicate whether it intends to exercise jurisdiction.
Article 10
Aut dedere aut judicare
The State in the territory under whose jurisdiction the alleged offender is
present shall, if it does not extradite or surrender the person to another State or
competent international criminal court or tribunal, submit the case to its competent
authorities for the purpose of prosecution. Those authorities shall take their decision
in the same manner as in the case of any other offence of a grave nature under the
law of that State.
Article 11
Fair treatment of the alleged offender
1. Any person against whom measures are being taken in connection with an
offence covered by the present draft articles shall be guaranteed at all stages of the
proceedings fair treatment, including a fair trial, and full protection of his or her
rights under applicable national and international law, including human rights law
and international humanitarian law.
2. Any such person who is in prison, custody or detention in a State that is not
of his or her nationality shall be entitled:
(a) to communicate without delay with the nearest appropriate
representative of the State or States of which such person is a national or which is
otherwise entitled to protect that person’s rights or, if such person is a stateless
person, of the State which, at that person’s request, is willing to protect that person’s
rights;
(b) to be visited by a representative of that State or those States; and
(c) to be informed without delay of his or her rights under this paragraph.
3. The rights referred to in paragraph 2 shall be exercised in conformity with the
laws and regulations of the State in the territory under whose jurisdiction the person
is present, subject to the proviso that the said laws and regulations must enable full
effect to be given to the purpose for which the rights accorded under paragraph 2 are
intended.
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Article 12
Victims, witnesses and others
1. Each State shall take the necessary measures to ensure that:
(a) any person who alleges that acts constituting crimes against humanity
have been or are being committed has the right to complain to the competent
authorities; and
(b) complainants, victims, witnesses, and their relatives and
representatives, as well as other persons participating in any investigation,
prosecution, extradition or other proceeding within the scope of the present draft
articles, shall be protected against ill-treatment or intimidation as a consequence of
any complaint, information, testimony or other evidence given. Protective measures
shall be without prejudice to the rights of the alleged offender referred to in draft
article 11.
2. Each State shall, in accordance with its national law, enable the views and
concerns of victims of a crime against humanity to be presented and considered at
appropriate stages of criminal proceedings against alleged offenders in a manner not
prejudicial to the rights referred to in draft article 11.
3. Each State shall take the necessary measures to ensure in its legal system that
the victims of a crime against humanity, committed through acts attributable to the
State under international law or committed in any territory under its jurisdiction,
have the right to obtain reparation for material and moral damages, on an individual
or collective basis, consisting, as appropriate, of one or more of the following or
other forms: restitution; compensation; satisfaction; rehabilitation; cessation and
guarantees of non-repetition.
Article 13
Extradition
1. This draft article shall apply to the offences covered by the present draft
articles when a requesting State seeks the extradition of a person who is present in
territory under the jurisdiction of a requested State.
2. Each of the offences covered by the present draft articles shall be deemed to
be included as an extraditable offence in any extradition treaty existing between
States. States undertake to include such offences as extraditable offences in every
extradition treaty to be concluded between them.
3. For the purposes of extradition between States, an offence covered by the
present draft articles shall not be regarded as a political offence or as an offence
connected with a political offence or as an offence inspired by political motives.
Accordingly, a request for extradition based on such an offence may not be refused
on these grounds alone.
4. If a State that makes extradition conditional on the existence of a treaty
receives a request for extradition from another State with which it has no extradition
treaty, it may consider the present draft articles as the legal basis for extradition in
respect of any offence covered by the present draft articles.
5. A State that makes extradition conditional on the existence of a treaty shall,
for any offence covered by the present draft articles:
(a) inform the Secretary-General of the United Nations whether it will use
the present draft articles as the legal basis for cooperation on extradition with other
States; and
(b) if it does not use the present draft articles as the legal basis for
cooperation on extradition, seek, where appropriate, to conclude treaties on
extradition with other States in order to implement this draft article.
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6. States that do not make extradition conditional on the existence of a treaty

shall recognize the offences covered by the present draft articles as extraditable
offences between themselves.
7. Extradition shall be subject to the conditions provided for by the national law
of the requested State or by applicable extradition treaties, including the grounds
upon which the requested State may refuse extradition.
8. The requesting and requested States shall, subject to their national law,
endeavour to expedite extradition procedures and to simplify evidentiary
requirements relating thereto.
9. If necessary, the offences covered by the present draft articles shall be treated,
for the purposes of extradition between States, as if they had been committed not
only in the place in which they occurred but also in the territory of the States that
have established jurisdiction in accordance with draft article 7, paragraph 1.
10. If extradition, sought for purposes of enforcing a sentence, is refused because
the person sought is a national of the requested State, the requested State shall, if its
national law so permits and in conformity with the requirements of such law, upon
application of the requesting State, consider the enforcement of the sentence
imposed under the national law of the requesting State or the remainder thereof.
11. Nothing in the present draft articles shall be interpreted as imposing an
obligation to extradite if the requested State has substantial grounds for believing
that the request has been made for the purpose of prosecuting or punishing a person
on account of that person’s gender, race, religion, nationality, ethnic origin, culture,
membership of a particular social group, political opinions or other grounds that are
universally recognized as impermissible under international law, or that compliance
with the request would cause prejudice to that person’s position for any of these
reasons.
12. A requested State shall give due consideration to the request of the State in
the territory under whose jurisdiction the alleged offence has occurred.
13. Before refusing extradition, the requested State shall consult, as appropriate,
with the requesting State to provide it with ample opportunity to present its opinions
and to provide information relevant to its allegation.
Article 14
Mutual legal assistance
1. States shall afford one another the widest measure of mutual legal assistance
in investigations, prosecutions and judicial proceedings in relation to the offences
covered by the present draft articles in accordance with this draft article.
2. In relation to the offences for which a legal person may be held liable in
accordance with draft article 6, paragraph 8, in the requesting State, mutual legal
assistance shall be afforded to the fullest extent possible under relevant laws, treaties,
agreements and arrangements of the requested State with respect to investigations,
prosecutions, judicial and other proceedings.
3. Mutual legal assistance to be afforded in accordance with this draft article
may be requested for any of the following purposes:
(a) identifying and locating alleged offenders and, as appropriate, victims,
witnesses or others;
(b) taking evidence or statements from persons, including by video
conference;
(c) effecting service of judicial documents;
(d) executing searches and seizures;
(e) examining objects and sites, including obtaining forensic evidence;
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(f) providing information, evidentiary items and expert evaluations;

(g) providing originals or certified copies of relevant documents and
records;
(h) identifying, tracing or freezing proceeds of crime, property,
instrumentalities or other things for evidentiary or other purposes;
(i) facilitating the voluntary appearance of persons in the requesting State;
or
(j) any other type of assistance that is not contrary to the national law of
the requested State.
4. States shall not decline to render mutual legal assistance pursuant to this draft
article on the ground of bank secrecy.
5. States shall consider, as may be necessary, the possibility of concluding
bilateral or multilateral agreements or arrangements that would serve the purposes of,
give practical effect to, or enhance the provisions of this draft article.
6. Without prejudice to its national law, the competent authorities of a State
may, without prior request, transmit information relating to crimes against humanity
to a competent authority in another State where they believe that such information
could assist the authority in undertaking or successfully concluding investigations,
prosecutions and judicial proceedings or could result in a request formulated by the
latter State pursuant to the present draft articles.
7. The provisions of this draft article shall not affect the obligations under any
other treaty, bilateral or multilateral, that governs or will govern, in whole or in part,
mutual legal assistance between the States in question.
8. The draft annex to the present draft articles shall apply to requests made
pursuant to this draft article if the States in question are not bound by a treaty of
mutual legal assistance. If those States are bound by such a treaty, the corresponding
provisions of that treaty shall apply, unless the States agree to apply the provisions
of the draft annex in lieu thereof. States are encouraged to apply the draft annex if it
facilitates cooperation.
9. States shall consider, as appropriate, entering into agreements or
arrangements with international mechanisms that are established by the United
Nations or by other international organizations and that have a mandate to collect
evidence with respect to crimes against humanity.
Article 15
Settlement of disputes
1. States shall endeavour to settle disputes concerning the interpretation or
application of the present draft articles through negotiations.
2. Any dispute between two or more States concerning the interpretation or
application of the present draft articles that is not settled through negotiation shall, at
the request of one of those States, be submitted to the International Court of Justice,
unless those States agree to submit the dispute to arbitration.
3. Each State may declare that it does not consider itself bound by paragraph 2
of this draft article. The other States shall not be bound by paragraph 2 of this draft
article with respect to any State that has made such a declaration.
4. Any State that has made a declaration in accordance with paragraph 3 of this
draft article may at any time withdraw that declaration.
Annex
1. This draft annex applies in accordance with draft article 14, paragraph 8.
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Designation of a central authority

2. Each State shall designate a central authority that shall have the responsibility
and power to receive requests for mutual legal assistance and either to execute them
or to transmit them to the competent authorities for execution. Where a State has a
special region or territory with a separate system of mutual legal assistance, it may
designate a distinct central authority that shall have the same function for that region
or territory. Central authorities shall ensure the speedy and proper execution or
transmission of the requests received. Where the central authority transmits the
request to a competent authority for execution, it shall encourage the speedy and
proper execution of the request by the competent authority. The Secretary-General
of the United Nations shall be notified by each State of the central authority
designated for this purpose. Requests for mutual legal assistance and any
communication related thereto shall be transmitted to the central authorities
designated by the States. This requirement shall be without prejudice to the right of
a State to require that such requests and communications be addressed to it through
diplomatic channels and, in urgent circumstances, where the States agree, through
the International Criminal Police Organization, if possible.
Procedures for making a request

3. Requests shall be made in writing or, where possible, by any means capable
of producing a written record, in a language acceptable to the requested State, under
conditions allowing that State to establish authenticity. The Secretary-General of the
United Nations shall be notified by each State of the language or languages
acceptable to that State. In urgent circumstances and where agreed by the States,
requests may be made orally, but shall be confirmed in writing forthwith.
4. A request for mutual legal assistance shall contain:
(a) the identity of the authority making the request;
(b) the subject matter and nature of the investigation, prosecution or
judicial proceeding to which the request relates and the name and functions of the
authority conducting the investigation, prosecution or judicial proceeding;
(c) a summary of the relevant facts, except in relation to requests for the
purpose of service of judicial documents;
(d) a description of the assistance sought and details of any particular
procedure that the requesting State wishes to be followed;
(e) where possible, the identity, location and nationality of any person
concerned; and
(f) the purpose for which the evidence, information or action is sought.
5. The requested State may request additional information when it appears
necessary for the execution of the request in accordance with its national law or
when it can facilitate such execution.
Response to the request by the requested State

6. A request shall be executed in accordance with the national law of the
requested State and, to the extent not contrary to the national law of the requested
State and where possible, in accordance with the procedures specified in the request.
7. The requested State shall execute the request for mutual legal assistance as
soon as possible and shall take as full account as possible of any deadlines suggested
by the requesting State and for which reasons are given, preferably in the request.
The requested State shall respond to reasonable requests by the requesting State on
progress of its handling of the request. The requesting State shall promptly inform
the requested State when the assistance sought is no longer required.
8. Mutual legal assistance may be refused:
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(a) if the request is not made in conformity with the provisions of this
draft annex;
(b) if the requested State considers that execution of the request is likely
to prejudice its sovereignty, security, ordre public or other essential interests;
(c) if the authorities of the requested State would be prohibited by its
national law from carrying out the action requested with regard to any similar
offence, had it been subject to investigation, prosecution or judicial proceedings
under their own jurisdiction;
(d) if it would be contrary to the legal system of the requested State
relating to mutual legal assistance for the request to be granted.
9. Reasons shall be given for any refusal of mutual legal assistance.
10. Mutual legal assistance may be postponed by the requested State on the
ground that it interferes with an ongoing investigation, prosecution or judicial
proceeding.
11. Before refusing a request pursuant to paragraph 8 of this draft annex or
postponing its execution pursuant to paragraph 10 of this draft annex, the requested
State shall consult with the requesting State to consider whether assistance may be
granted subject to such terms and conditions as it deems necessary. If the requesting
State accepts assistance subject to those conditions, it shall comply with the
conditions.
12. The requested State:
(a) shall provide to the requesting State copies of government records,
documents or information in its possession that under its national law are available
to the general public; and
(b) may, at its discretion, provide to the requesting State in whole, in part
or subject to such conditions as it deems appropriate, copies of any government
records, documents or information in its possession that under its national law are
not available to the general public.
Use of information by the requesting State

13. The requesting State shall not transmit or use information or evidence
furnished by the requested State for investigations, prosecutions or judicial
proceedings other than those stated in the request without the prior consent of the
requested State. Nothing in this paragraph shall prevent the requesting State from
disclosing in its proceedings information or evidence that is exculpatory to an
accused person. In the latter case, the requesting State shall notify the requested
State prior to the disclosure and, if so requested, consult with the requested State. If,
in an exceptional case, advance notice is not possible, the requesting State shall
inform the requested State of the disclosure without delay.
14. The requesting State may require that the requested State keep confidential
the fact and substance of the request, except to the extent necessary to execute the
request. If the requested State cannot comply with the requirement of confidentiality,
it shall promptly inform the requesting State.
Testimony of person from the requested State

15. Without prejudice to the application of paragraph 19 of this draft annex, a
witness, expert or other person who, at the request of the requesting State, consents
to give evidence in a proceeding or to assist in an investigation, prosecution or
judicial proceeding in territory under the jurisdiction of the requesting State shall not
be prosecuted, detained, punished or subjected to any other restriction of his or her
personal liberty in that territory in respect of acts, omissions or convictions prior to
his or her departure from territory under the jurisdiction of the requested State. Such
safe conduct shall cease when the witness, expert or other person having had, for a
20 GE.19-13883
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period of fifteen consecutive days or for any period agreed upon by the States from
the date on which he or she has been officially informed that his or her presence is
no longer required by the judicial authorities, an opportunity of leaving, has
nevertheless remained voluntarily in territory under the jurisdiction of the requesting
State or, having left it, has returned of his or her own free will.
16. Wherever possible and consistent with fundamental principles of national law,
when an individual is in territory under the jurisdiction of a State and has to be heard
as a witness or expert by the judicial authorities of another State, the first State may,
at the request of the other, permit the hearing to take place by video conference if it
is not possible or desirable for the individual in question to appear in person in
territory under the jurisdiction of the requesting State. States may agree that the
hearing shall be conducted by a judicial authority of the requesting State and
attended by a judicial authority of the requested State.
Transfer for testimony of person detained in the requested State

17. A person who is being detained or is serving a sentence in the territory under
the jurisdiction of one State whose presence in another State is requested for
purposes of identification, testimony or otherwise providing assistance in obtaining
evidence for investigations, prosecutions or judicial proceedings in relation to
offences covered by the present draft articles, may be transferred if the following
conditions are met:
(a) the person freely gives his or her informed consent; and
(b) the competent authorities of both States agree, subject to such
conditions as those States may deem appropriate.
18. For the purposes of paragraph 17 of this draft annex:
(a) the State to which the person is transferred shall have the authority
and obligation to keep the person transferred in custody, unless otherwise requested
or authorized by the State from which the person was transferred;
(b) the State to which the person is transferred shall without delay
implement its obligation to return the person to the custody of the State from which
the person was transferred as agreed beforehand, or as otherwise agreed, by the
competent authorities of both States;
(c) the State to which the person is transferred shall not require the State
from which the person was transferred to initiate extradition proceedings for the
return of the person; and
(d) the person transferred shall receive credit for service of the sentence
being served from the State from which he or she was transferred for time spent in
the custody of the State to which he or she was transferred.
19. Unless the State from which a person is to be transferred in accordance with
paragraphs 17 and 18 of this draft annex so agrees, that person, whatever his or her
nationality, shall not be prosecuted, detained, punished or subjected to any other
restriction of his or her personal liberty in territory under the jurisdiction of the State
to which that person is transferred in respect of acts, omissions or convictions prior
to his or her departure from territory under the jurisdiction of the State from which
he or she was transferred.
Costs
20. The ordinary costs of executing a request shall be borne by the requested
State, unless otherwise agreed by the States concerned. If expenses of a substantial
or extraordinary nature are or will be required to fulfil the request, the States shall
consult to determine the terms and conditions under which the request will be
executed, as well as the manner in which the costs shall be borne.
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2. Text of the draft articles and commentaries thereto

45. The text of the draft articles, together with commentaries thereto, adopted by the
Commission on second reading, is reproduced below.
Prevention and punishment of crimes against humanity
General commentary
(1) Three crimes typically have featured in the jurisdiction of international criminal
courts and tribunals: genocide, crimes against humanity and war crimes. The crime of
genocide11 and war crimes12 are the subject of global conventions that require States within
their national law to prevent and punish such crimes, and to cooperate among themselves
toward those ends. By contrast, there is no global convention dedicated to preventing and
punishing crimes against humanity and promoting inter-State cooperation in that regard,
even though crimes against humanity are likely no less prevalent than genocide or war
crimes. Unlike war crimes, crimes against humanity may occur in situations not involving
armed conflict. Further, crimes against humanity do not require the special intent that is
necessary for establishing genocide.13
(2) Treaties focused on prevention, punishment and inter-State cooperation exist for
many offences far less egregious than crimes against humanity, such as corruption 14 and
transnational organized crime. 15 Consequently, a global convention on prevention and
punishment of crimes against humanity might serve as an important additional piece in the
current framework of international law, and in particular, international humanitarian law,
international criminal law and international human rights law. Such a convention could
draw further attention to the need for prevention and punishment and could help States to
adopt and harmonize national laws relating to such conduct, thereby opening the door to
more effective inter-State cooperation on the prevention, investigation and prosecution of
such crimes. In building a network of cooperation, as has been done with respect to other
offences, sanctuary would be denied to offenders, thereby – it is hoped – helping both to
deter such conduct ab initio and to ensure accountability ex post. Matters not regulated by
such a convention would continue to be governed by other rules of international law,
including customary international law.
(3) Hence, the proposal for this topic, as adopted by the Commission at its sixty-fifth
session in 2013, states that the “objective of the International Law Commission on this
topic … would be to draft articles for what would become a Convention on the Prevention
11 Convention on the Prevention and Punishment of the Crime of Genocide (Paris, 9 December 1948),
United Nations, Treaty Series, vol. 78, No. 1021, p. 277.
12 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field (Geneva, 12 August 1949), United Nations, Treaty Series, vol. 75, No. 970, p. 31
(hereinafter “Geneva Convention I”); Geneva Convention for the Amelioration of the Condition of
the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva, 12 August 1949),
ibid., No. 971, p. 85 (hereinafter “Geneva Convention II”); Geneva Convention relative to the
Treatment of Prisoners of War (Geneva, 12 August 1949), ibid., No. 972, p. 135 (hereinafter “Geneva
Convention III”); Geneva Convention relative to the Protection of Civilian Persons in Time of War
(Geneva, 12 August 1949), ibid., No. 973, p. 287 (hereinafter “Geneva Convention IV”); Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (Geneva, 8 June 1977), United Nations, Treaty Series, vol. 1125,
No. 17512, p. 3 (hereinafter “Additional Protocol I”).
13 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 3, at p. 64, para. 139 (“The Court recalls that,
in 2007, it held that the intent to destroy a national, ethnic, racial or religious group as such is specific
to genocide and distinguishes it from other related criminal acts such as crimes against humanity and
persecution”.) (citing to Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports
2007, p. 43, at pp. 121–122, paras. 187–188).
14 United Nations Convention against Corruption (New York, 31 October 2003), United Nations, Treaty
Series, vol. 2349, No. 42146, p. 41.
15 United Nations Convention against Transnational Organized Crime (New York, 15 November 2000),
United Nations, Treaty Series, vol. 2225, No. 39574, p. 209.
22 GE.19-13883
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and Punishment of Crimes against Humanity”.16 While some aspects of these draft articles
may reflect customary international law, codification of existing law is not the objective of
these draft articles; rather, the objective is the drafting of provisions that would be both
effective and likely acceptable to States, based on provisions often used in widely adhered-
to treaties addressing crimes, as a basis for a possible future convention. Further, the draft
articles are without prejudice to existing customary international law. In accordance with
the Commission’s practice, and in advance of a decision by States as to whether to use
these draft articles as the basis for a convention, the Commission has not included technical
language characteristic of treaties (for example, referring to “States parties”) and has not
drafted final clauses on matters such as ratification, reservations, entry into force or
amendment.
(4) The present draft articles avoid any conflicts with the obligations of States arising
under the constituent instruments of international criminal courts and tribunals, such as the
International Criminal Court (as well as “hybrid” tribunals containing a mixture of
international law and national law elements). Whereas the 1998 Rome Statute of the
International Criminal Court17 regulates relations between the International Criminal Court
and its States parties (a “vertical” relationship), the focus of the present draft articles is on
the adoption of national laws and on inter-State cooperation (a “horizontal” relationship).
Part IX of the Rome Statute on “International Cooperation and Judicial Assistance”
assumes that inter-State cooperation on crimes within the jurisdiction of the International
Criminal Court will continue to exist without prejudice to the Rome Statute, but does not
direct itself to the regulation of that cooperation. The present draft articles address inter-
State cooperation on the prevention of crimes against humanity, as well as on the
investigation, apprehension, prosecution, extradition and punishment in national legal
systems of persons who commit such crimes, an objective consistent with the Rome Statute.
In doing so, the present draft articles contribute to the implementation of the principle of
complementarity under the Rome Statute. At the same time, the draft articles envisage
obligations that may be undertaken by States whether or not they are parties to the Rome
Statute. Finally, constituent instruments of international criminal courts or tribunals address
the prosecution of persons for the crimes within their jurisdiction, but such instruments are
not directed at steps that should be taken by States to prevent such crimes before they are
committed or while they are being committed.
Preamble
…
Mindful that throughout history millions of children, women and men have
been victims of crimes that deeply shock the conscience of humanity,
Recognizing that crimes against humanity threaten the peace, security and
well-being of the world,
Recalling the principles of international law embodied in the Charter of the
United Nations,
Recalling also that the prohibition of crimes against humanity is a
peremptory norm of general international law (jus cogens),
Affirming that crimes against humanity, which are among the most serious
crimes of concern to the international community as a whole, must be prevented in
conformity with international law,
Determined to put an end to impunity for the perpetrators of these crimes and
thus to contribute to the prevention of such crimes,
16 See report of the International Law Commission on the work of its sixty-fifth session (2013), Official
Records of the General Assembly, Sixty-eighth Session, Supplement No. 10 (A/68/10), annex B, para.
3.
17 Rome Statute of the International Criminal Court (Rome, 17 July 1998), United Nations, Treaty
Series, vol. 2187, No. 38544, p. 3 (hereinafter “Rome Statute”).
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Considering the definition of crimes against humanity set forth in article 7 of

the Rome Statute of the International Criminal Court,
Recalling that it is the duty of every State to exercise its criminal jurisdiction
with respect to crimes against humanity,
Considering the rights of victims, witnesses and others in relation to crimes
against humanity, as well as the right of alleged offenders to fair treatment,
Considering also that, because crimes against humanity must not go
unpunished, the effective prosecution of such crimes must be ensured by taking
measures at the national level and by enhancing international cooperation, including
with respect to extradition and mutual legal assistance,
…
Commentary
(1) The draft preamble aims at providing a conceptual framework for the draft articles,
setting out the general context in which they were elaborated and their main purposes. In
part, it draws inspiration from language used in the preambles of international treaties
relating to the most serious crimes of concern to the international community as a whole,
including the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide and the Rome Statute.
(2) The first preambular paragraph recalls the fact that, over the course of history,
millions of people have been victimized by acts that deeply shock the conscience of
humanity. When such acts, because of their gravity, constitute egregious attacks on
humankind itself, they are referred to as crimes against humanity.
(3) The second preambular paragraph recognizes that such crimes endanger important
contemporary values (“the peace, security and well-being of the world”). In so doing, this
paragraph echoes the purposes set forth in Article 1 of the Charter of the United Nations,
and stresses the link between the pursuit of criminal justice and the maintenance of peace
and security.
(4) The third preambular paragraph recalls the principles of international law embodied
in the Charter of the United Nations, which include the principle of the sovereign equality
of all States and the principle that States shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the purposes of the United Nations. 18 Thus,
this preambular paragraph emphasizes, as does draft article 4, that although crimes against
humanity may threaten the peace, security and well-being of the world, the prevention and
punishment of such crimes must be undertaken in conformity with international law,
including the rules on the threat or use of force. The phrasing of this preambular paragraph
is modelled on the preamble of the United Nations Convention on Jurisdictional Immunities
of States and Their Property and is consistent with the preamble of the Rome Statute. 19
(5) The fourth preambular paragraph recalls also that the prohibition of crimes against
humanity is not just a rule of international law; it is a peremptory norm of general
international law (jus cogens). As such, this prohibition is accepted and recognized by the
international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international
law having the same character. 20 The Commission has previously indicated that the
18 Charter of the United Nations (San Francisco, 26 June 1945), Article 2, paras. 1 and 4. See
Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations, General Assembly resolution
26/25 (XXV) of 24 October 1970.
19 United Nations Convention on Jurisdictional Immunities of States and Their Property (New York, 2
December 2004), Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 49
(A/59/49), vol. I, resolution 59/38, preamble; Rome Statute, preamble.
20 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), United Nations, Treaty Series,
vol. 1155, No. 18232, p. 331, art. 53. See also draft conclusion 2 of the draft conclusions on
24 GE.19-13883
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prohibition of crimes against humanity is “clearly accepted and recognized” as a

peremptory norm of international law. 21 The International Court of Justice has found that
the prohibition on certain acts, such as torture, 22 has the character of jus cogens,23 which a
fortiori suggests that a prohibition of the perpetration of such acts on a widespread or
systematic basis amounting to crimes against humanity would also have the character of jus
cogens. The status of the prohibition on crimes against humanity as jus cogens has also
been noted by regional human rights courts, 24 international criminal courts and tribunals, 25
and some national courts.26 While this preambular paragraph recalls that the prohibition of
peremptory norms of general international law (jus cogens) adopted by the Commission on first
reading (see paragraph 56 below).
21 Yearbook … 2001, vol. II (Part Two) and corrigendum, p. 85, para. (5) of the commentary to art. 26 of
the draft articles on responsibility of States for internationally wrongful acts (maintaining that those
“peremptory norms that are clearly accepted and recognized include the prohibition[] of … crimes
against humanity”). See also draft conclusion 23 of the draft conclusions on peremptory norms of
general international law (jus cogens) adopted by the Commission on first reading (see paragraph 56
below); Fragmentation of international law: difficulties arising from the diversification and expansion
of international law, report of the Study Group of the International Law Commission finalized by
Martti Koskenniemi (A/CN.4/L.682 and Corr.1 and Add.1), para. 374 (identifying crimes against
humanity as one of the “most frequently cited candidates for the status of jus cogens”).
22 See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(New York, 10 December 1984), United Nations, Treaty Series, vol. 1465, No. 24841, p. 85
(hereinafter “Convention against Torture”).
23 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012, p. 422, at p. 457, para. 99.
24 See Almonacid-Arellano et al. v. Chile, Judgment of 26 September 2006 (Preliminary Objections,
Merits, Reparations and Costs), Inter-American Court of Human Rights, Series C, No. 154, para. 99
(acknowledging the jus cogens status of crimes against humanity); Miguel Castro-Castro Prison v.
Peru, Judgment (Merits, Reparations and Costs), Inter-American Court of Human Rights, 25
November 2006, Series C, No. 160, para. 402 (citing to Almonacid-Arellano on this point); Manuel
Cepeda Vargas v. Colombia, Judgment (Preliminary Objections, Merits, Reparations and Costs),
Inter-American Court of Human Rights, 26 May 2010, Series C, No. 213, para. 42 (stating that “the
prohibition of crimes against humanity … is ius cogens”).
25 See Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-T, Judgment, 14 January 2000, Trial
Chamber, International Criminal Tribunal for the Former Yugoslavia, Judicial Supplement No. 11,
para. 520 (“Furthermore, most norms of international humanitarian law, in particular those
prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of
international law or jus cogens, i.e. of a non-derogable and overriding character.”); Prosecutor v.
William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Decision on Mr. Ruto’s Request for
Excusal from Continuous Presence at Trial, 18 June 2013, Trial Chamber, International Criminal
Court, para. 90 (“It is generally agreed that the interdiction of crimes against humanity enjoys the
stature of jus cogens”).
26 See Mazzeo, Julio Lilo y otros, Appeal Judgment, Supreme Court of Argentina, 13 July 2007, Fallos:
330:3248, para. 15 (recognizing the prohibition of crimes against humanity as jus cogens); Arancibia
Clavel, Enrique Lautaro, Appeal Judgment, Supreme Court of Argentina, 24 August 2004, Fallos:
327:3312, para. 28 (stating that the Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes Against Humanity implied the recognition of the prohibition of crimes
against humanity as a jus cogens norm); Priebke, Erich, Judgment, Supreme Court of Argentina, 2
November 1995, Fallos: 318:2148, paras. 2–5 (recognizing the prohibition of crimes against
humanity as jus cogens); Exp No. 0024-2010-PI/TC, Judgment, Peruvian Constitutional Court, 21
March 2011, para. 53, available at https://www.tc.gob.pe/jurisprudencia/2011/00024-2010-AI.html
(same); National Commissioner of the South African Police Service v. Southern African Litigation
Centre and Another, Judgment, South African Constitutional Court, 30 October 2014, South African
Law Reports 2015, vol. 1, p. 315, para. 37 (“Along with torture, the international crimes of piracy,
slave-trading, war crimes, crimes against humanity, genocide and apartheid require states, even in the
absence of binding international treaty law, to suppress such conduct because ‘all states have an
interest as they violate values that constitute the foundation of the world public order’. Torture,
whether on the scale of crimes against humanity or not, is a crime in South Africa in terms of section
232 of the Constitution because the customary international law prohibition against torture has the
status of a peremptory norm”); Attorney-General and 2 Others v. Kenya Section of International
Commission of Jurists, Judgment, Court of Appeal of Kenya, 16 February 2018, available at
http://kenyalaw.org/caselaw/cases/view/148746/ (“Some of the largely accepted examples of those
norms from which no derogation is permitted but are obligatory equally upon State and non-State
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crimes against humanity is a norm of jus cogens, neither it nor the present draft articles
seek to address the consequences of the prohibition having such status.
(6) As indicated in draft article 1 below, the present draft articles have two overall
objectives: the prevention and the punishment of crimes against humanity. The fifth
preambular paragraph focuses upon the first of these two objectives (prevention); it
foreshadows obligations that appear in draft articles 3, 4 and 5 of the present draft articles
by affirming that crimes against humanity must be prevented in conformity with
international law. In doing so, this paragraph indicates that such crimes are among the most
serious crimes of concern to the international community as a whole.
(7) The sixth preambular paragraph affirms the link between the first overall objective
(prevention) and the second overall objective (punishment) of the present draft articles, by
indicating that prevention is advanced by putting an end to impunity for the perpetrators of
such crimes.
(8) The seventh preambular paragraph considers, as a threshold matter, the definition of
crimes against humanity set forth in article 7 of the Rome Statute. This definition served as
a useful model when drafting the definition contained in draft article 2 of the present draft
articles and, in conjunction with draft articles 6 and 7, identifies the offences over which
States must establish jurisdiction under their national criminal law.
(9) The eighth through tenth preambular paragraphs focus on the second of the two
overall objectives (punishment). The eighth preambular paragraph recalls the duty of every
State to exercise criminal jurisdiction with respect to crimes against humanity. Among
other things, this paragraph foreshadows draft articles 8 through 10 on the investigation of
crimes against humanity, the taking of certain measures whenever an alleged offender is
present, and the submission of the case to the prosecuting authorities unless the alleged
offender is extradited or surrendered to another State or competent international court or
tribunal.
(10) The ninth preambular paragraph notes that attention must be paid to the rights of
individuals when addressing crimes against humanity. Reference to the rights of victims,
witnesses and others anticipates the provisions set forth in draft article 12, including the
right to complain to competent authorities, to participate in criminal proceedings, and to
obtain reparation. At the same time, the reference to the right of alleged offenders to fair
treatment anticipates the provisions set forth in draft article 11, including the right to a fair
trial and, when appropriate, access to consular authorities.
(11) The tenth preambular paragraph considers that the effective prosecution of crimes
against humanity must be ensured, both by taking measures at the national level and by
enhancing international cooperation. Such cooperation includes cooperation with respect to
extradition and mutual legal assistance, which is the focus of draft articles 13 and 14, as
well as the draft annex.
Article 1
Scope
The present draft articles apply to the prevention and punishment of crimes
against humanity.
Commentary
(1) Draft article 1 establishes the scope of the present draft articles by indicating that
they apply both to the prevention and to the punishment of crimes against humanity.
Prevention of crimes against humanity is focused on precluding the commission of such
offences, while punishment of crimes against humanity is focused on criminal proceedings
against persons after such crimes have occurred or when they are in the process of being
committed.
actors include prohibition of[:] genocide, crimes against humanity, war crimes[,] torture, piracy and
slavery”).
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(2) The present draft articles focus solely on crimes against humanity, which are grave
international crimes wherever they occur. The present draft articles do not address other
grave international crimes, such as genocide, war crimes or the crime of aggression.
(3) If the present draft articles ultimately serve as the basis for a convention, the
obligations of a State party under that convention, unless a different intention appears,
would only operate with respect to acts or facts that took place, or any situation that existed,
after the convention enters into force for that State. Article 28 of the 1969 Vienna
Convention on the Law of Treaties provides that, “[u]nless a different intention appears
from the treaty or is otherwise established, its provisions do not bind a party in relation to
any act or fact which took place or any situation which ceased to exist before the date of the
entry into force of the treaty with respect to that party.”27 The International Court of Justice
applied article 28 with respect to a treaty addressing a crime (torture) in Questions relating
to the Obligation to Prosecute or Extradite, finding that “the obligation to prosecute the
alleged perpetrators of acts of torture under the Convention applies only to facts having
occurred after its entry into force for the State concerned.”28 However, States would remain
bound at all times by whatever obligations exist under other rules of international law,
including customary international law. Further, the law of treaties rule indicated above does
not foreclose a State from adopting, at any time, a national law relating to crimes against
humanity, so long as it is consistent with the State’s obligations under international law.
(4) In various provisions of the present draft articles, the term “national law” is used to
refer to the internal or domestic law of a State. Use of this term is intended to cover all
aspects of a State’s internal law, including the level (such as federal or provincial) at which
such law should be adopted or to which it applies.
Article 2
Definition of crimes against humanity
1. For the purpose of the present draft articles, “crime against humanity” means
any of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation or forcible transfer of population;
(e) imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;
(f) torture;
(g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender, or other grounds that are
universally recognized as impermissible under international law, in connection with
any act referred to in this paragraph;
(i) enforced disappearance of persons;
(j) the crime of apartheid;
(k) other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
27 Vienna Convention on the Law of Treaties, art. 28.

28 Questions relating to the Obligation to Prosecute or Extradite (see footnote 23 above), p. 457, para.
100.
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(a) “attack directed against any civilian population” means a course of

conduct involving the multiple commission of acts referred to in paragraph 1 against
any civilian population, pursuant to or in furtherance of a State or organizational
policy to commit such attack;
(b) “extermination” includes the intentional infliction of conditions of life
including, inter alia, the deprivation of access to food and medicine, calculated to
bring about the destruction of part of a population;
(c) “enslavement” means the exercise of any or all of the powers
attaching to the right of ownership over a person and includes the exercise of such
power in the course of trafficking in persons, in particular women and children;
(d) “deportation or forcible transfer of population” means forced
displacement of the persons concerned by expulsion or other coercive acts from the
area in which they are lawfully present, without grounds permitted under
international law;
(e) “torture” means the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person in the custody or under the control of the
accused; except that torture shall not include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions;
(f) “forced pregnancy” means the unlawful confinement of a woman
forcibly made pregnant, with the intent of affecting the ethnic composition of any
population or carrying out other grave violations of international law. This definition
shall not in any way be interpreted as affecting national laws relating to pregnancy;
(g) “persecution” means the intentional and severe deprivation of
fundamental rights contrary to international law by reason of the identity of the
group or collectivity;
(h) “the crime of apartheid” means inhumane acts of a character similar to
those referred to in paragraph 1, committed in the context of an institutionalized
regime of systematic oppression and domination by one racial group over any other
racial group or groups and committed with the intention of maintaining that regime;
(i) “enforced disappearance of persons” means the arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence of, a
State or a political organization, followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or whereabouts of those
persons, with the intention of removing them from the protection of the law for a
prolonged period of time.
3. This draft article is without prejudice to any broader definition provided for
in any international instrument, in customary international law or in national law.
Commentary
(1) The first two paragraphs of draft article 2 establish, for the purpose of the present
draft articles, a definition of “crime against humanity”. The text of these two paragraphs is
almost verbatim the text of article 7 of the Rome Statute, with just a few changes as
discussed below. Paragraph 3 of draft article 2 is a “without prejudice” clause which
indicates that this definition does not affect any broader definitions provided for in
international instruments, customary international law or national law.
Definitions in other instruments

(2) Various definitions of “crimes against humanity” have been used since 1945, both in
international instruments and in national laws that have codified the crime. The Charter of
the International Military Tribunal established at Nürnberg Charter (hereinafter “Nürnberg
Charter”), in article 6, subparagraph (c), defined “crimes against humanity” as:
murder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war, or persecutions
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on political, racial or religious grounds in execution of or in connection with any

crime within the jurisdiction of the Tribunal, whether or not in violation of the
domestic law of the country where perpetrated.29
(3) Principle VI (c) of the Commission’s 1950 Principles of International Law
Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal
defined crimes against humanity as: “Murder, extermination, enslavement, deportation and
other inhuman acts done against any civilian population, or persecutions on political, racial
or religious grounds, when such acts are done or such persecutions are carried on in
execution of or in connexion with any crime against peace or any war crime”.30
(4) Furthermore, the Commission’s 1954 draft Code of Offences against the Peace and
Security of Mankind identified as one of those offences: “Inhuman acts such as murder,
extermination, enslavement, deportation or persecutions, committed against any civilian
population on social, political, racial, religious or cultural grounds by the authorities of a
State or by private individuals acting at the instigation or with the toleration of such
authorities”.31
(5) Article 5 of the 1993 Statute of the International Criminal Tribunal for the Former
Yugoslavia stated that the Tribunal “shall have the power to prosecute persons responsible”
for a series of acts (such as murder, torture, and rape) “when committed in armed conflict,
whether international or internal in character, and directed against any civilian
population”. 32 Although the report of the Secretary-General of the United Nations
proposing this article indicated that crimes against humanity “refer to inhumane acts of a
very serious nature ... committed as part of a widespread or systematic attack against any
civilian population on national, political, ethnic, racial or religious grounds”, 33 that
particular language was not included in the text of article 5.
(6) By contrast, the 1994 Statute of the International Criminal Tribunal for Rwanda, in
article 3, retained the same series of acts, but the chapeau language introduced the
formulation from the 1993 Secretary-General’s report of “crimes when committed as part
of a widespread or systematic attack against any civilian population” and then continued
with “on national, political, ethnic, racial or religious grounds”.34 As such, the Statute of the
International Criminal Tribunal for Rwanda expressly provided that a discriminatory intent
was required in order to establish the crime. The Commission’s 1996 draft Code of Crimes
against the Peace and Security of Mankind also defined “crimes against humanity” to be a
series of specified 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”, but did not
29 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis,
and Charter of the International Military Tribunal, art. 6 (c) (London, 8 August 1945), United
Nations, Treaty Series, vol. 82, No. 251, p. 279 (hereinafter “Nürnberg Charter”).
30 Yearbook … 1950, vol. II, document A/1316, Part III, p. 377, para. 119.
31 Yearbook … 1954, vol. II, p. 150, para. 50, art. 2, para. 11.
32 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991, approved by the Security Council in its resolution 827 (1993) of 25 May 1993 and
contained in the report of the Secretary-General pursuant to paragraph 2 of Security Council
resolution 808 (1993), S/25704 and Add.1, annex, art. 5 (hereinafter “Statute of the International
Criminal Tribunal for the Former Yugoslavia”).
33 Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993),
document S/25704 and Corr.1, p. 13, para. 48.
34 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for
Genocide and Other Serious Violations of International Humanitarian Law Committed in the
Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations
Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994,
approved by the Security Council in its resolution 955 (1994) of 8 November 1994, annex, art. 3
(hereinafter “Statute of the International Criminal Tribunal for Rwanda”).
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include the discriminatory intent language. 35 Crimes against humanity have also been
defined in the jurisdiction of hybrid criminal courts or tribunals. 36
(7) Article 5, paragraph 1 (b), of the 1998 Rome Statute lists crimes against humanity as
being within the jurisdiction of the International Criminal Court. Article 7, paragraph 1,
defines “crime against humanity” as any of a series of acts “when committed as part of a
widespread or systematic attack directed against any civilian population, with knowledge of
the attack”. Article 7, paragraph 2, contains a series of definitions which, inter alia, clarify
that an attack directed against any civilian population “means a course of conduct involving
the multiple commission of acts referred to in paragraph 1 against any civilian population,
pursuant to or in furtherance of a State or organizational policy to commit such attack”
(para. 2 (a)). Article 7, paragraph 3, provides: “[I]t is understood that the term ‘gender’
refers to the two sexes, male and female, within the context of society. The term ‘gender’
does not indicate any meaning different from the above”. Article 7, paragraph 1 (h), does
not retain the nexus to an armed conflict that characterized the Statute of the International
Criminal Tribunal for the Former Yugoslavia, nor (except with respect to acts of
persecution) the discriminatory intent requirement that characterized the Statute of the
International Criminal Tribunal for Rwanda.
(8) The definition of “crime against humanity” in article 7 of the Rome Statute has been
accepted as of mid-2019 by 122 States parties to the Statute and is now being used by many
States when adopting or amending their national laws. 37 The Commission considered article
7 to be an appropriate basis for defining such crimes in paragraphs 1 and 2 of draft article 2.
Indeed, the text of article 7 is used verbatim except for three changes. First, the opening
phrase of paragraph 1 reads “For the purpose of the present draft articles” rather than “For
the purpose of this Statute”. Second, the phrase in article 7, paragraph 1 (h), of the 1998
Rome Statute that criminalizes acts of persecution when undertaken in connection with
“any crime within the jurisdiction of the Court” has not been retained for paragraph 1 (h) of
draft article 2, as discussed further below. Third, article 7, paragraph 3, of the Rome Statute
on the definition of “gender” (as well as a cross-reference to that paragraph in paragraph 1
(h)) has not been retained for draft article 2, as is also discussed further below.
Paragraphs 1 and 2
(9) The definition of “crimes against humanity” set forth in paragraphs 1 and 2 of draft
article 2 contains three overall requirements that merit some discussion. These requirements,
all of which appear in paragraph 1, have been illuminated through the International
Criminal Court’s “Elements of Crimes” under the Rome Statute, 38 the case law of the
International Criminal Court and other international criminal courts and tribunals, and
increasingly national courts. The definition also lists the underlying prohibited acts for
crimes against humanity and defines several of the terms used within the definition (thus
providing definitions within the definition). No doubt the evolving jurisprudence of the
35 Yearbook … 1996, vol. II (Part Two), p. 47, art. 18.

36 See, for example, Agreement between the United Nations and the Government of Sierra Leone on the
Establishment of a Special Court for Sierra Leone (with Statute) (Freetown, 16 January 2002), United
Nations, Treaty Series, vol. 2178, No. 38342, p. 137, at p. 145, art. 2 (hereinafter “Statute of the
Special Court for Sierra Leone”); Law on the Establishment of Extraordinary Chambers in the Courts
of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea,
27 October 2004, art. 5 (hereinafter “Extraordinary Chambers of Cambodia Law”).
37 For information submitted by Governments to the Commission on their national laws in this regard,
see http://legal.un.org/ilc/guide/7_7.shtml. For a table compiling national laws, see Coalition for the
International Criminal Court, Chart on the Status of Ratification and Implementation of the Rome
Statute and the Agreement on Privileges and Immunities (APIC) (2012), at
http://iccnow.org/documents/Global_Ratificationimplementation_chart_May2012.pdf. At present,
however, not all national laws addressing crimes against humanity contain the same definition that
appears in article 7 of the Rome Statute.
38 See International Criminal Court, Elements of Crimes, adopted at the Assembly of States Parties to
the Rome Statute of the International Criminal Court First session, New York, 3–10 September 2002,
(Official Records, ICC-ASP/1/3), and amended at the Review Conference of the Rome Statute of the
International Criminal Court, Kampala, 31 May–11 June 2010 (International Criminal Court
publication, RC/11) consolidated version of 2011, available from www.icc-cpi.int, pp. 5–12.
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International Criminal Court and other international criminal courts and tribunals will
continue to help inform national authorities, including courts, as to the meaning of this
definition, and thereby will promote harmonized approaches at the national level. The
Commission notes that relevant case law continues to develop over time, such that the
following discussion is meant simply to indicate some of the parameters of these terms as
of mid-2019.
“Widespread or systematic attack”

(10) The first overall requirement is that the acts must be committed as part of a
“widespread or systematic” attack. This requirement first appeared in the Statute of the
International Criminal Tribunal for Rwanda, 39 although some decisions of the International
Criminal Tribunal for the Former Yugoslavia maintained that the requirement was implicit
even in the Statute of that tribunal, given the inclusion of such language in the Secretary-
General’s report proposing that Statute.40 Jurisprudence of both the International Criminal
Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda
maintained that the conditions of “widespread” and “systematic” were disjunctive rather
than conjunctive requirements; either condition could be met to establish the existence of
the crime.41 This reading of the widespread/systematic requirement is also reflected in the
Commission’s commentary to the 1996 draft Code of Crimes against the Peace and
Security of Mankind, where it stated that “an act could constitute a crime against humanity
if either of these conditions [of scale or systematicity] is met”.42
(11) When this standard was considered for the 1998 Rome Statute, some States
expressed the view that the conditions of “widespread” and “systematic” should be
conjunctive requirements – that they both should be present to establish the existence of the
crime – because otherwise the standard would be over-inclusive.43 Indeed, if “widespread”
39 Unlike the English version, the French version of article 3 of the Statute of the International Criminal
Tribunal for Rwanda used a conjunctive formulation (“généralisée et systématique”). In the Akayesu
case, the Trial Chamber indicated: “In the original French version of the Statute, these requirements
were worded cumulatively ... thereby significantly increasing the threshold for application of this
provision. Since Customary International Law requires only that the attack be either widespread or
systematic, there are sufficient reasons to assume that the French version suffers from an error in
translation”. Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998,
Trial Chamber I, International Criminal Tribunal for Rwanda, para. 579, footnote 144.
40 Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgment, 3 March 2000, Trial Chamber,
International Criminal Tribunal for the Former Yugoslavia, Judicial Reports 2000, para. 202;
Prosecutor v. Duško Tadić a/k/a “Dule”, Case No. IT-94-1-T, Opinion and Judgment, 7 May 1997,
Trial Chamber, International Criminal Tribunal for the Former Yugoslavia, Judicial Reports 1997,
para. 648.
41 See, for example, Prosecutor v. Mile Mrkšić, Miroslav Radić and Veselin Šljivančanin, Case No. IT-
95-13/1-T, Judgment, 27 September 2007, Trial Chamber II, International Criminal Tribunal for the
Former Yugoslavia, para. 437 (“[T]he attack must be widespread or systematic, the requirement being
disjunctive rather than cumulative”.); Prosecutor v. Clément Kayishema and Obed Ruzindana, Case
No. ICTR-95-1-T, Judgment, 21 May 1999, Trial Chamber II, International Criminal Tribunal for
Rwanda, para. 123 (“The attack must contain one of the alternative conditions of being widespread or
systematic”.); Akayesu, Judgment, 2 September 1998 (footnote 39 above), para. 579; Tadić, Opinion
and Judgment, 7 May 1997 (footnote 40 above), para. 648 (“either a finding of widespreadness ... or
systematicity ... fulfils this requirement”).
42 Yearbook … 1996, vol. II (Part Two), p. 47, para. (4) of the commentary to art. 18. See also the report
of the Ad hoc Committee on the Establishment of an International Criminal Court, Official Records of
the General Assembly, Fiftieth Session, Supplement No. 22 (A/50/22), p. 17, para. 78 (“elements that
should be reflected in the definition of crimes against humanity included ... [that] the crimes usually
involved a widespread or systematic attack” (emphasis added)); Yearbook … 1995, vol. II (Part Two),
p. 25, para. 90 (“the concepts of ‘systematic’ and ‘massive’ violations were complementary elements
of the crimes concerned”); Yearbook … 1994, vol. II (Part Two), p. 40, para. (14) of the commentary
to art. 20 (“the definition of crimes against humanity encompasses inhumane acts of a very serious
character involving widespread or systematic violations” (emphasis added)); Yearbook … 1991, vol.
II (Part Two), p. 103, para. (3) of the commentary to art. 21 (“Either one of these aspects – systematic
or mass-scale – in any of the acts enumerated ... is enough for the offence to have taken place”).
43 See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court, Rome, 15 June–17 July 1998, Official Records, Volume II
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commission of acts alone were sufficient, these States maintained that spontaneous waves
of widespread, but unrelated, crimes would constitute crimes against humanity. Owing to
that concern, a compromise was developed that involved leaving these conditions in the
disjunctive,44 meaning that they are alternatives, but adding to article 7, paragraph 2 (a), of
the Rome Statute a definition of “attack directed against any civilian population” which, as
discussed below at paragraphs (17) to (33) of the commentary to the present draft article,
contains a “State or organizational policy” element.
(12) According to the Trial Chamber of the International Criminal Tribunal for the
Former Yugoslavia in Kunarac, “[t]he adjective ‘widespread’ connotes the large-scale
nature of the attack and the number of its victims”.45 As such, this requirement refers to a
“multiplicity of victims”46 and excludes isolated acts of violence,47 such as murder directed
against individual victims by persons acting of their own volition rather than as part of a
broader initiative. A “widespread” attack may be “massive, frequent, carried out
collectively with considerable seriousness and directed against a multiplicity of victims”.48
(A/CONF.183/13 Vol. II), p. 148 (India); ibid., p. 150 (United Kingdom of Great Britain and
Northern Ireland, France); ibid., p. 151 (Thailand, Egypt); ibid., p. 152 (Islamic Republic of Iran);
ibid., p. 154 (Turkey); ibid., p. 155 (Russian Federation); ibid., p. 156 (Japan).
44 Case law of the International Criminal Court has affirmed that the conditions of “widespread” and
“systematic” in article 7 of the Rome Statute are disjunctive. See Situation in the Republic of Kenya,
Case No. ICC-01/09, Decision pursuant to Article 15 of the Rome Statute on the authorization of an
investigation into the situation in the Republic of Kenya, 31 March 2010, Pre-Trial Chamber II,
International Criminal Court, para. 94. See also Prosecutor v. Jean-Pierre Bemba Gombo, Case No.
ICC-01/05-01/08, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of
the Prosecutor against Jean-Pierre Bemba Gombo, 15 June 2009, Pre-Trial Chamber II, International
Criminal Court, para. 82; Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08,
Judgment pursuant to Article 74 of the Statute, 21 March 2016, Trial Chamber III, International
Criminal Court, para. 162.
45 Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No. IT-96-23-T & IT-
96-23/1-T, Judgment, 22 February 2001, Trial Chamber, International Criminal Tribunal for the
Former Yugoslavia, para. 428, Judicial Supplement No. 23, February/March 2001. See also Bemba,
Judgment, 21 March 2016 (footnote 44 above), para. 163; Prosecutor v. Germain Katanga, Case No.
ICC-01/04-01/07, Judgment pursuant to Article 74 of the Statute, 7 March 2014, Trial Chamber II,
International Criminal Court, para. 1123; Prosecutor v. Germain Katanga and Mathieu Ngudjolo
Chui, Case No. ICC-01/04-01/07, Decision on the confirmation of charges, 30 September 2008, Pre-
Trial Chamber I, International Criminal Court, para. 394; Prosecutor v. Vidoje Blagojević and
Dragan Jokić, Case No. IT-02-60-T, Judgment, 17 January 2005, Trial Chamber I Section A,
International Criminal Tribunal for the Former Yugoslavia, paras. 545–546; Prosecutor v. Dario
Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgment [and corrigendum], 17 December 2004,
Appeals Chamber, International Criminal Tribunal for the Former Yugoslavia, para. 94.
46 Bemba, Decision, 15 June 2009 (see footnote 44 above), para. 83; Kayishema, Judgment, 21 May
1999 (see footnote 41 above), para. 123; Akayesu, Judgment, 2 September 1998 (see footnote 39
above), para. 580; Yearbook … 1996, vol. II (Part Two), p. 47, art. 18 (using the phrase “on a large
scale” instead of widespread). See also Mrkšić, Judgment, 27 September 2007 (see footnote 41
above), para. 437 (“‘widespread’ refers to the large scale nature of the attack and the number of
victims”). In Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Decision pursuant to Article
61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Bosco Ntaganda, 9 June
2014, Pre-Trial Chamber II, International Criminal Court, para. 24, the Chamber found that the attack
against the civilian population was widespread “as it resulted in a large number of civilian victims”.
47 See Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Decision on the Prosecutor’s
application under Article 58, 13 July 2012, Pre-Trial Chamber II, International Criminal Court, para.
19; Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad al abd-al-Rahman, Case No. ICC-
02/05-01/07, Decision on the prosecution application under Article 58(7) of the Statute, 27 April
2007, Pre-Trial Chamber I, International Criminal Court, para. 62. See also Prosecutor v. Georges
Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence, 6 December
1999, Trial Chamber I, International Criminal Tribunal for Rwanda, paras. 67–69; Kayishema,
Judgment, 21 May 1999 (footnote 41 above), paras. 122–123; para. (4) of the commentary to art. 18
of the draft Code of Crimes against the Peace and Security of Mankind, Yearbook … 1996, vol. II
(Part Two), p. 47; para. (3) of the commentary to art. 21 of the draft Code of Crimes against the Peace
and Security of Mankind, Yearbook … 1991, vol. II (Part Two), p. 103.
48 Bemba, Judgment, 21 March 2016 (see footnote 44 above), para. 163 (citing to Bemba, Decision, 15
June 2009 (see footnote 44 above), para. 83).
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At the same time, a single act committed by an individual perpetrator can constitute a crime
against humanity if it occurs within the context of a broader campaign. 49 There is no
specific numerical threshold of victims that must be met for an attack to be “widespread”.
(13) “Widespread” can also have a geographical dimension, with the attack occurring in
different locations. 50 Thus, in the Bemba case, an International Criminal Court Pre-Trial
Chamber found that there was sufficient evidence to establish that an attack was
“widespread” based on reports of attacks in various locations over a large geographical area,
including evidence of thousands of rapes, mass grave sites and a large number of victims. 51
Yet a large geographic area is not required; the International Criminal Tribunal for the
Former Yugoslavia has found that the attack can be in a small geographic area against a
large number of civilians.52
(14) In its Situation in the Republic of Kenya decision, the International Criminal Court
Pre-Trial Chamber indicated that “[t]he assessment is neither exclusively quantitative nor
geographical, but must be carried out on the basis of the individual facts”.53 An attack may
be widespread due to the cumulative effect of multiple inhumane acts or the result of a
single inhumane act of great magnitude.54
(15) Like “widespread”, the term “systematic” excludes isolated or unconnected acts of
violence, 55 and jurisprudence from the International Criminal Tribunal for the Former
Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal
Court reflects a similar understanding of what is meant by the term. The International
Criminal Tribunal for the Former Yugoslavia defined “systematic” as “the organised nature
of the acts of violence and the improbability of their random occurrence”56 and found that
evidence of a pattern or methodical plan establishes that an attack was systematic. 57 Thus,
the Appeals Chamber in Kunarac confirmed that “patterns of crimes – that is the non-
accidental repetition of similar criminal conduct on a regular basis – are a common
expression of such systematic occurrence”. 58 The International Criminal Tribunal for
Rwanda has taken a similar approach.59
(16) Consistent with jurisprudence of the International Criminal Tribunal for the Former
Yugoslavia and of the International Criminal Tribunal for Rwanda, an International
Criminal Court Pre-Trial Chamber in Harun found that “systematic” refers to “the
49 Kupreškić, Judgment, 14 January 2000 (see footnote 25 above), para. 550; Tadić, Opinion and
Judgment, 7 May 1997 (see footnote 40 above), para. 649.
50 See, for example, Ntaganda, Decision, 13 July 2012 (footnote 47 above), para. 30; Prosecutor v.
William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11,
Decision on the confirmation of charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23
January 2012, Pre-Trial Chamber II, International Criminal Court, paras. 176–177.
51 Bemba, Decision, 15 June 2009 (see footnote 44 above), paras. 117–124. See Bemba, Judgment, 21
March 2016 (see footnote 44 above), paras. 688–689.
52 Kordić, Judgment, 17 December 2004 (see footnote 45 above), para. 94; Blaškić, Judgment, 3 March
2000 (see footnote 40 above), para. 206.
53 Situation in the Republic of Kenya, Decision, 31 March 2010 (see footnote 44 above), para. 95. See
also Bemba, Judgment, 21 March 2016 (footnote 44 above), para. 163.
54 Yearbook … 1996, vol. II (Part Two), p. 47, para. (4) of the commentary to art. 18 of the draft Code of
Crimes against the Peace and Security of Mankind. See also Bemba, Decision, 15 June 2009 (footnote
44 above), para. 83 (finding that widespread “entails an attack carried out over a large geographical
area or an attack in a small geographical area directed against a large number of civilians”).
55 See para. (3) of the commentary to art. 18 of the draft Code of Crimes against the Peace and Security
of Mankind, Yearbook … 1996, vol. II (Part Two), p. 47; para. (3) of the commentary to art. 21 of the
draft Code of Crimes against the Peace and Security of Mankind, Yearbook … 1991, vol. II (Part
Two), p. 103.
56 Mrkšić, Judgment, 27 September 2007 (see footnote 41 above), para. 437; Kunarac, Judgment, 22
February 2001 (see footnote 45 above), para. 429.
57 See, for example, Tadić, Opinion and Judgment, 7 May 1997 (footnote 40 above), para. 648.
58 Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A, Judgment, 12 June 2002, Appeals
Chamber, International Criminal Tribunal for the Former Yugoslavia, para. 94, Judicial Supplement
No. 34, June 2002.
59 Kayishema, Judgment, 21 May 1999 (see footnote 41 above), para. 123; Akayesu, Judgment, 2
September 1998 (see footnote 39 above), para. 580.
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organised nature of the acts of violence and improbability of their random occurrence”.60
An International Criminal Court Pre-Trial Chamber in Katanga found that the term “has
been understood as either an organized plan in furtherance of a common policy, which
follows a regular pattern and results in a continuous commission of acts or as ‘patterns of
crimes’ such that the crimes constitute a ‘non-accidental repetition of similar criminal
conduct on a regular basis’”.61 In applying the standard, an International Criminal Court
Pre-Trial Chamber in Ntaganda found an attack to be systematic since “the perpetrators
employed similar means and methods to attack the different locations: they approached the
targets simultaneously, in large numbers, and from different directions, they attacked
villages with heavy weapons, and systematically chased the population by similar methods,
hunting house by house and into the bushes, burning all properties and looting”. 62
Additionally, in the Ntaganda confirmation of charges decision, a Pre-Trial Chamber held
that the attack was systematic as it followed a “regular pattern” with a “recurrent modus
operandi, including the erection of roadblocks, the laying of land mines, and [the]
coordinated … commission of the unlawful acts ... in order to attack the non-Hema civilian
population”. 63 In Gbagbo, an International Criminal Court Pre-Trial Chamber found an
attack to be systematic when “preparations for the attack were undertaken in advance” and
the attack was planned and coordinated with acts of violence revealing a “clear pattern”.64
“Directed against any civilian population”

(17) The second overall requirement is that the act must be committed as part of an attack
“directed against any civilian population”. Draft article 2, paragraph 2 (a), defines “attack
directed against any civilian population” for the purpose of paragraph 1 as “a course of
conduct involving the multiple commission of acts referred to in paragraph 1 against any
civilian population, pursuant to or in furtherance of a State or organizational policy to
commit such attack”.65 As discussed below, jurisprudence from the International Criminal
Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and
the International Criminal Court has construed the meaning of each of these terms:
“directed against”, “any”, “civilian”, “population”, “a course of conduct involving the
multiple commission of acts” and “State or organizational policy”.
(18) The International Criminal Tribunal for the Former Yugoslavia has found that the
phrase “directed against” requires that civilians be the intended primary target of the attack,
rather than incidental victims. 66 International Criminal Court Pre-Trial Chambers
subsequently adopted this interpretation in the Bemba case and the Situation in the Republic
of Kenya case,67 as did the International Criminal Court Trial Chambers in the Katanga and
Bemba trial judgments. 68 In the Bemba case, an International Criminal Court Pre-Trial
Chamber found that there was sufficient evidence showing the attack was “directed against”
60 Harun, Decision, 27 April 2007 (see footnote 47 above), para. 62 (citing to Kordić, Judgment, 17
December 2004 (see footnote 45 above), para. 94, which in turn cites to Kunarac, Judgment, 22
February 2001 (see footnote 45 above), para. 429). See also Ruto, Decision, 23 January 2012 (see
footnote 50 above), para. 179; Situation in the Republic of Kenya, Decision, 31 March 2010 (see
footnote 44 above), para. 96; Katanga, Decision, 30 September 2008 (see footnote 45 above), para.
394.
61 Katanga, Decision, 30 September 2008 (see footnote 45), para. 397.
62 Ntaganda, Decision, 13 July 2012 (see footnote 47 above), para. 31. See also Ruto, Decision, 23
January 2012 (see footnote 50 above), para. 179.
63 Ntaganda, Decision, 9 June 2014 (see footnote 46 above), para. 24.
64 Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11, Decision on the confirmation of charges
against Laurent Gbagbo, 12 June 2014, Pre-Trial Chamber II, International Criminal Court, para. 225.
65 See Rome Statute. See also International Criminal Court, Elements of Crimes (footnote 38 above), p.
5.
66 See, for example, Kunarac, Judgment, 22 February 2001 (footnote 45 above), para. 421 (“The
expression ‘directed against’ specifies that in the context of a crime against humanity the civilian
population is the primary object of the attack”).
67 Situation in the Republic of Kenya, Decision, 31 March 2010 (see footnote 44 above), para. 82;
Bemba, Decision, 15 June 2009 (see footnote 44 above), para. 76.
68 Katanga, Judgment, 7 March 2014 (see footnote 45 above), para. 1104; Bemba, Judgment, 21 March
2016, (see footnote 44 above), para. 154.
34 GE.19-13883
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civilians of the Central African Republic. 69 The Chamber concluded that Mouvement de
libération du Congo (MLC) soldiers were aware that their victims were civilians, based on
direct evidence of civilians being attacked inside their houses or in their courtyards. 70 The
Chamber further found that MLC soldiers targeted primarily civilians, demonstrated by an
attack at one locality where the MLC soldiers did not find any rebel troops that they
claimed to be chasing.71 The term “directed” places its emphasis on the intention of the
attack rather than the physical result of the attack. 72 It is the attack, not the acts of the
individual perpetrator, which must be “directed against” the target population.73 The Trial
Chamber in Bemba later confirmed “that the civilian population was the primary, as
opposed to incidental, target of the attack, and in turn, that the attack was directed against
the civilian population in the [Central African Republic]”.74 In doing so, it explained that
“[w]here an attack is carried out in an area containing both civilians and non-civilians,
factors relevant to determining whether an attack was directed against a civilian population
include the means and methods used in the course of the attack, the status of the victims,
their number, the discriminatory nature of the attack, the nature of the crimes committed in
its course, the form of resistance to the assailants at the time of the attack, and the extent to
which the attacking force complied with the precautionary requirements of the laws of
war”.75
(19) The word “any” indicates that “civilian population” is to have a wide definition and
hence should be interpreted broadly.76 An attack can be committed against any civilians,
“regardless of their nationality, ethnicity or other distinguishing feature”, 77 and can be
committed against either nationals or foreigners. 78 Those targeted may “include a group
defined by its (perceived) political affiliation”.79 In order to qualify as a “civilian population”
during a time of armed conflict, those targeted must be “predominantly” civilian in nature;80
the presence of certain combatants within the population does not change its character. 81
69 Bemba, Decision, 15 June 2009 (see footnote 44 above), para. 94. See also Ntaganda, Decision, 13
July 2012 (see footnote 47 above), paras. 20–21.
70 Bemba, Decision, 15 June 2009 (see footnote 44 above), para. 94.
71 Ibid., paras. 95–98.
72 See, for example, Blaškić, Judgment, 3 March 2000 (footnote 40 above), para. 208, footnote 401.
73 Kunarac, Judgment, 12 June 2002 (see footnote 58 above), para. 103.
74 Bemba, Judgment, 21 March 2016 (see footnote 44 above), para. 674.
75 Ibid., para. 153 (citing to the jurisprudence of various international courts and tribunals).
76 See, for example, Mrkšić, Judgment, 27 September 2007 (footnote 41 above), para. 442; Kupreškić,
Judgment, 14 January 2000 (footnote 25 above), para. 547 (“[A] wide definition of ‘civilian’ and
‘population’ is intended. This is warranted first of all by the object and purpose of the general
principles and rules of humanitarian law, in particular by the rules prohibiting crimes against
humanity”.); Kayishema, Judgment, 21 May 1999 (footnote 41 above), para. 127; Tadić, Opinion and
Judgment, 7 May 1997 (footnote 40 above), para. 643.
77 Katanga, Decision, 30 September 2008 (see footnote 45 above), para. 399 (quoting Tadić, Opinion
and Judgment, 7 May 1997 (see footnote 40 above), para. 635). See also Katanga, Judgment, 7 March
2014 (see footnote 45 above), para. 1103; Bemba, Judgment, 21 March 2016 (see footnote 44 above),
para. 155.
78 See, for example, Kunarac, Judgment, 22 February 2001 (footnote 45 above), para. 423.
79 Ruto, Decision, 23 January 2012 (see footnote 50 above), para. 164.
80 See Additional Protocol I, art. 50, para. 1; Blaškić, Judgment, 3 March 2000 (footnote 40 above),
para. 180 (recognizing civilians for the purpose of common article 3 to the 1949 Geneva Conventions
as “persons who are not, or no longer, members of the armed forces”).
81 See, for example, Katanga, Judgment, 7 March 2014 (footnote 45 above), para. 1105 (holding that the
population targeted “must be primarily composed of civilians” and that the “presence of non-civilians
in its midst has therefore no effect on its status of civilian population”); Mrkšić, Judgment, 27
September 2007 (footnote 41 above), para. 442; Kunarac, Judgment, 22 February 2001 (footnote 45
above), para. 425 (“the presence of certain non-civilians in its midst does not change the character of
the population”); Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgment,
26 February 2001, Trial Chamber, International Criminal Tribunal for the Former Yugoslavia, para.
180; Blaškić, Judgment, 3 March 2000, (footnote 40 above), para. 214 (“the presence of soldiers
within an intentionally targeted civilian population does not alter the civilian nature of that
population”); Kupreškić, Judgment, 14 January 2000 (footnote 25 above), para. 549 (“the presence of
those actively involved in the conflict should not prevent the characterization of a population as
civilian”); Kayishema, Judgment, 21 May 1999 (footnote 41 above), para. 128; Akayesu, Judgment, 2
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This approach is in accordance with other rules arising under international humanitarian
law. For example, Additional Protocol I to the 1949 Geneva Conventions states: “The
presence within the civilian population of individuals who do not come within the
definition of civilians does not deprive the population of its civilian character”.82 The Trial
Chamber of the International Criminal Tribunal for Rwanda in Kayishema found that
during a time of peace, “civilian” shall include all persons except those individuals who
have a duty to maintain public order and have legitimate means to exercise force to that end
at the time they are being attacked.83 The status of any given victim must be assessed at the
time the offence is committed;84 a person should be considered a civilian if there is any
doubt as to his or her status.
(20) “Population” does not mean that the entire population of a given geographical
location must be subject to the attack;85 rather, the term implies the collective nature of the
crime as an attack upon multiple victims. 86 As the Trial Chamber of the International
Criminal Tribunal for the Former Yugoslavia noted in Gotovina, the concept means that the
attack is upon more than just “a limited and randomly selected number of individuals”.87
The International Criminal Court decisions in the Bemba case and the Situation in the
Republic of Kenya case have adopted a similar approach, declaring that the Prosecutor must
establish that the attack was directed against more than just a limited group of individuals. 88
(21) The first part of draft article 2, paragraph 2 (a), refers to “a course of conduct
involving the multiple commission of acts referred to in paragraph 1 against any civilian
September 1998 (footnote 39 above), para. 582 (“Where there are certain individuals within the
civilian population who do not come within the definition of civilians, this does not deprive the
population of its civilian character”); Tadić, Opinion and Judgment, 7 May 1997 (footnote 40 above),
para. 638.
82 Additional Protocol I, art. 50, para. 3.
83 Kayishema, Judgment, 21 May 1999 (see footnote 41 above), para. 127 (referring to “all persons
except those who have the duty to maintain public order and have the legitimate means to exercise
force. Non-civilians would include, for example, members of the [Forces armées rwandaises], the
[Rwandese Patriotic Front], the police and the Gendarmerie Nationale”).
84 With respect to members of armed forces, differing views have been expressed. The Blaškić Appeals
Chamber found that members of the armed forces, militias, volunteer corps and members of
resistance groups cannot be considered civilians for this purpose, even when hors de combat.
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgment, 29 July 2004, Appeals Chamber,
International Criminal Tribunal for the Former Yugoslavia, Judicial Reports 2004, paras. 110–114.
Some other tribunals, however, have followed the approach of the Blaškić Trial Chamber, Blaškić,
Judgment, 3 March 2000 (see footnote 40 above), para. 214, which said that “the specific situation of
the victim at the moment the crimes were committed, rather than his status, must be taken into
account in determining his standing as a civilian”. See, for example, Notification on the Interpretation
of “Attack against the Civilian Population” in the Context of Crimes against Humanity with Regard to
a State’s or Regime’s Own Armed Forces, Case No. 3/07-09-2009-ECCC-OCIJ, 7 February 2017,
Extraordinary Chambers in the Courts of Cambodia, para. 56 (“[A]s a matter of principle, between
1975 and 1979 an attack by a state or organisation against its own armed forces, when carried out in
peacetime, satisfied the chapeau requirement of an attack against any civilian population.”). See also
Prosecutor v. Paul Bisengimana, Case No. ICTR-00-60-T, Judgment and Sentence, 13 April 2006,
Trial Chamber II, International Criminal Tribunal for Rwanda, paras. 48–51; Prosecutor v. Tharcisse
Muvunyi, Case No. ICTR-00-55A-T, Judgment, 12 September 2006, Trial Chamber II, International
Criminal Tribunal for Rwanda, para. 513.
85 See Situation in the Republic of Kenya, Decision, 31 March 2010 (footnote 44 above), para. 82;
Bemba, Decision, 15 June 2009 (footnote 44 above), para. 77; Kunarac, Judgment, 22 February 2001
(footnote 45 above), para. 424; Tadić, Opinion and Judgment, 7 May 1997 (footnote 40 above), para.
644. See also Yearbook … 1994, vol. II (Part Two), p. 40, para. (14) of the commentary to art. 21
(defining crimes against humanity as “inhumane acts of a very serious character involving widespread
or systematic violations aimed at the civilian population in whole or in part” (emphasis added)).
86 See Tadić, Opinion and Judgment, 7 May 1997 (footnote 40 above), para. 644.
87 Prosecutor v. Ante Gotovina, Ivan Čermak and Mladen Markač, Case No. IT-06-90-T, Judgment, vol.
II, 15 April 2011, Trial Chamber I, International Criminal Tribunal for the Former Yugoslavia, para.
1704.
88 Situation in the Republic of Kenya, Decision, 31 March 2010 (see footnote 44 above), para. 81;
Bemba, Decision, 15 June 2009 (see footnote 44 above), para. 77; Bemba, Judgment, 21 March 2016
(see footnote 44 above), para. 154.
36 GE.19-13883
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population”. Although no such language was contained in the statutory definition of crimes
against humanity for the International Criminal Tribunal for the Former Yugoslavia and the
International Criminal Tribunal for Rwanda, this language reflects jurisprudence from both
these tribunals,89 and was expressly stated in article 7, paragraph 2 (a), of the 1998 Rome
Statute. The Elements of Crimes under the Rome Statute provides that the “acts” referred to
in article 7, paragraph 2 (a), “need not constitute a military attack”.90 The Trial Chamber in
Katanga stated that “the attack need not necessarily be military in nature and it may involve
any form of violence against a civilian population”.91
(22) The second part of draft article 2, paragraph 2 (a), states that the attack must be
“pursuant to or in furtherance of a State or organizational policy to commit such an attack”.
The requirement of a “policy” element did not appear as part of the definition of crimes
against humanity in the statutes of international courts and tribunals until the adoption of
the Rome Statute.92 While the Statutes of the International Criminal Tribunal for the Former
Yugoslavia and the International Criminal Tribunal for Rwanda contained no policy
requirement in their definition of crimes against humanity, 93 some early jurisprudence
required it. 94 Indeed, the Tadić Trial Chamber provided an important discussion of the
policy element early in the work of the International Criminal Tribunal for the Former
Yugoslavia, one that would later influence the drafting of the Rome Statute. The Trial
Chamber found that
the reason that crimes against humanity so shock the conscience of mankind and
warrant intervention by the international community is because they are not isolated,
random acts of individuals but rather result from a deliberate attempt to target a
civilian population. Traditionally this requirement was understood to mean that there
must be some form of policy to commit these acts ... Importantly, however, such a
policy need not be formalized and can be deduced from the way in which the acts
occur.95
89 See, for example, Kunarac, Judgment, 22 February 2001 (footnote 45 above), para. 415 (defining
attack as “a course of conduct involving the commission of acts of violence”); Kayishema, Judgment,
21 May 1999 (footnote 41 above), para. 122 (defining attack as the “event in which the enumerated
crimes must form part”); Akayesu, Judgment, 2 September 1998 (footnote 39 above), para. 581 (“The
concept of ‘attack’ may be defined as a[n] unlawful act of the kind enumerated [in the Statute] … An
attack may also be non violent in nature, like imposing a system of apartheid ... or exerting pressure
on the population to act in a particular manner”).
90 See International Criminal Court, Elements of Crimes (footnote 38 above), p. 5.
91 Katanga, Judgment, 7 March 2014 (footnote 45 above), para. 1101.
92 Article 6 (c) of the Nürnberg Charter contains no explicit reference to a plan or policy. The Nürnberg
Judgment, however, did use a “policy” descriptor when discussing article 6 (c) in the context of the
concept of the “attack” as a whole. See Judgment of 30 September 1946, International Military
Tribunal, in Trial of the Major War Criminals Before the International Military Tribunal (Nuremberg
14 November 1945–1 October 1946), vol. 22 (1948), p. 493 (“The policy of terror was certainly
carried out on a vast scale, and in many cases was organized and systematic. The policy of
persecution, repression and murder of civilians in Germany before the war of 1939, who were likely
to be hostile to the Government, was most ruthlessly carried out”). Article II (1) (c) of Control
Council Law No. 10 on Punishment of Persons Guilty of War Crimes, Crimes against Peace and
against Humanity also contains no reference to a plan or policy in its definition of crimes against
humanity. Control Council Law No. 10 on Punishment of Persons Guilty of War Crimes, Crimes
Against Peace and Against Humanity, 20 December 1945, in Official Gazette of the Control Council
for Germany, vol. 3, p. 52 (1946).
93 The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia determined
that there was no policy element on crimes against humanity in customary international law, see
Kunarac, Judgment, 12 June 2002 (footnote 58 above), para. 98 (“There was nothing in the Statute or
in customary international law at the time of the alleged acts which required proof of the existence of
a plan or policy to commit these crimes”), although that position has been criticized in writings.
94 See, for example, Tadić, Opinion and Judgment, 7 May 1997 (footnote 40 above), paras. 626, 644,
and 653–655.
95 Ibid., para. 653.
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The Trial Chamber further noted that, because of the policy element, such crimes “cannot
be the work of isolated individuals alone”. 96 Later jurisprudence of the International
Criminal Tribunal for the Former Yugoslavia, however, downplayed the policy element,
regarding it as sufficient simply to prove the existence of a widespread or systematic
attack.97
(23) Prior to the Rome Statute, the work of the Commission in its draft codes tended to
require a policy element. The Commission’s 1954 draft Code of Offences against the Peace
and Security of Mankind defined crimes against humanity as: “Inhuman acts such as
murder, extermination, enslavement, deportation or persecutions, committed against any
civilian population on social, political, racial, religious or cultural grounds by the
authorities of a State or by private individuals acting at the instigation or with the
toleration of such authorities”.98 The Commission decided to include the State instigation
or tolerance requirement in order to exclude inhumane acts committed by private persons
on their own without any State involvement. 99 At the same time, the definition of crimes
against humanity included in the 1954 draft Code of Offences against the Peace and
Security of Mankind did not include any requirement of scale (“widespread”) or
systematicity.
(24) The Commission’s 1996 draft Code of Crimes against the Peace and Security of
Mankind also recognized a policy requirement, defining crimes against humanity as “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”. 100 The
Commission included this requirement to exclude inhumane acts committed by an
individual “acting on his own initiative pursuant to his own criminal plan in the absence of
any encouragement or direction from either a Government or a group or organization”.101 In
other words, the policy element sought to exclude “ordinary” crimes of individuals acting
on their own initiative and without any connection to a State or organization.
(25) Draft article 2, paragraph 2 (a), contains the same policy element as set forth in
article 7, paragraph 2 (a), of the 1998 Rome Statute. The Elements of Crimes under the
Rome Statute provide that a “‘policy to commit such attack’ requires that the State or
organization actively promote or encourage such an attack against a civilian population”,102
and that “a policy may, in exceptional circumstances, be implemented by a deliberate
failure to take action, which is consciously aimed at encouraging such attack”.103
96 Ibid., para. 655 (citing to Prosecutor v. Dragan Nikolić a/k/a “Jenki”, Case No. IT-94-2-R61, Review
of indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, Trial
Chamber, International Criminal Tribunal for the Former Yugoslavia, para. 26).
97 See, for example, Kunarac, Judgment, 12 June 2002 (footnote 58 above), para. 98; Kordić, Judgment,
26 February 2001 (footnote 81 above), para. 182 (finding that “the existence of a plan or policy
should better be regarded as indicative of the systematic character of offences charged as crimes
against humanity”); Kayishema, Judgment, 21 May 1999 (footnote 41 above), para. 124 (“For an act
of mass victimisation to be a crime against humanity, it must include a policy element. Either of the
requirements of widespread or systematic are enough to exclude acts not committed as part of a
broader policy or plan”); Akayesu, Judgment, 2 September 1998 (footnote 39 above), para. 580.
98 Art. 2, para. 11, of the draft Code of Offences against the Peace and Security of Mankind, Yearbook
… 1954, vol. II, p. 150 (emphasis added).
99 Ibid.
100 Art. 18 of the draft Code of Crimes against the Peace and Security of Mankind, Yearbook … 1996,
vol. II (Part Two), p. 47 (emphasis added).
101 Para. (5) of the commentary to art. 18 of the draft Code of Crimes against the Peace and Security of
Mankind, ibid. In explaining its inclusion of the policy requirement, the Commission noted: “It would
be extremely difficult for a single individual acting alone to commit the inhumane acts as envisaged
in article 18”. Ibid.
102 International Criminal Court, Elements of Crimes (see footnote 38 above), p. 5.
103 Ibid. Other precedents also emphasize that deliberate failure to act can satisfy the policy element. See
Kupreškić, Judgment, 14 January 2000 (footnote 25 above), paras. 554–555 (discussing acts
“approved”, “condoned”, and for which “explicit or implicit approval” has been given); Yearbook …
1954, vol. II, p. 150, art. 2, para. 11 of the draft Code of Offences against the Peace and Security of
Mankind (“toleration”); Security Council, Final Report of the Commission of Experts Established
38 GE.19-13883
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(26) This “policy” element has been addressed in several cases at the International
Criminal Court.104 In the 2014 judgment in Katanga, an International Criminal Court Trial
Chamber stressed that the policy requirement is not synonymous with “systematic”, since
that would contradict the disjunctive requirement in article 7 of the 1998 Rome Statute of a
“widespread” or “systematic” attack.105 Rather, while “systematic” requires high levels of
organization and patterns of conduct or recurrence of violence, 106 to “establish a ‘policy’, it
need be demonstrated only that the State or organisation meant to commit an attack against
a civilian population. An analysis of the systematic nature of the attack therefore goes
beyond the existence of any policy seeking to eliminate, persecute or undermine a
community”.107 Further, the “policy” requirement does not require formal designs or pre-
established plans, can be implemented by action or inaction, and can be inferred from the
circumstances.108 The Trial Chamber found that the policy need not be formally established
or promulgated in advance of the attack and can be deduced from the repetition of acts,
from preparatory activities, or from a collective mobilization.109 Moreover, the policy need
not be concrete or precise, and it may evolve over time as circumstances unfold. 110
Furthermore, the Trial Chamber in Bemba held that the requirement that the course of
conduct was committed pursuant to or in furtherance of the State or organizational policy is
satisfied not only where a perpetrator deliberately acts to further the policy, but also where
a perpetrator has engaged in conduct envisaged by the policy, and with knowledge
thereof.111
(27) Similarly, in its decision confirming the indictment of Laurent Gbagbo, an
International Criminal Court Pre-Trial Chamber held that “policy” should not be conflated
with “systematic”. 112 Specifically, the Trial Chamber stated that “evidence of planning,
organisation or direction by a State or organisation may be relevant to prove both the policy
and the systematic nature of the attack, although the two concepts should not be conflated
as they serve different purposes and imply different thresholds under article 7 (1) and (2) (a)
of the Statute”. 113 The policy element requires that the acts be “linked” to a State or
organization,114 and it excludes “spontaneous or isolated acts of violence”, but a policy need
not be formally adopted115 and proof of a particular rationale or motive is not required.116 In
the Bemba case, an International Criminal Court Pre-Trial Chamber found that the attack
was pursuant to an organizational policy based on evidence establishing that the MLC
troops “carried out attacks following the same pattern”.117 The Trial Chamber later found
that the MLC troops knew that their individual acts were part of a broader attack directed
against the civilian population in the Central African Republic.118
(28) The second part of draft article 2, paragraph 2 (a), refers to either a “State” or
“organizational” policy to commit such an attack, as does article 7, paragraph 2 (a), of the
1998 Rome Statute. In its Situation in the Republic of Kenya decision, an International
Pursuant to Security Council resolution 780 (1992), document S/1994/674, para. 85 (“[u]nwillingness
to manage, prosecute and punish”).
104 See, for example, Ntaganda, Decision, 13 July 2012 (footnote 47 above), para. 24; Bemba, Decision,
15 June 2009 (footnote 44 above), para. 81; Katanga, Decision, 30 September 2008 (footnote 45
above), para. 396.
105 Katanga, Judgment, 7 March 2014 (see footnote 45 above), paras. 1111–1112. See also ibid., para.
1101; Gbagbo, Decision, 12 June 2014 (see footnote 64 above), para. 208.
106 Katanga, Judgment, 7 March 2014 (see footnote 45 above), paras. 1111–1113.
107 Ibid., para. 1113.
108 Ibid., paras. 1108–1109 and 1113.
109 Ibid., para. 1109. See also Gbagbo, Decision, 12 June 2014 (see footnote 64 above), paras. 211–212,
and 215.
110 Katanga, Judgment, 7 March 2014 (see footnote 45 above), para. 1110.
112 Gbagbo, Judgment, 12 June 2014 (see footnote 64 above), paras. 208 and 216.
113 Ibid., para. 216.
114 Ibid., para. 217.
115 Ibid., para. 215.
116 Ibid., para. 214.
117 Bemba, Decision, 15 June 2009 (see footnote 44 above), para. 115.
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Criminal Court Pre-Trial Chamber suggested that the meaning of “State” in article 7,
paragraph 2 (a), is “self-explanatory”.119 The Chamber went on to note that a policy adopted
by regional or local organs of the State could satisfy the requirement of State policy. 120
(29) Jurisprudence from the International Criminal Court suggests that “organizational”
includes any organization or group with the capacity and resources to plan and carry out a
widespread or systematic attack. For example, a Pre-Trial Chamber in Katanga stated:
“Such a policy may be made either by groups of persons who govern a specific territory or
by any organisation with the capability to commit a widespread or systematic attack against
a civilian population”.121 An International Criminal Court Trial Chamber in Katanga held
that the organization must have “sufficient resources, means and capacity to bring about the
course of conduct or the operation involving the multiple commission of acts” and “a set of
structures or mechanisms, whatever those may be, that are sufficiently efficient to ensure
the coordination necessary to carry out an attack directed against a civilian population”.122
(30) In its Situation in the Republic of Kenya decision, a majority of an International
Criminal Court Pre-Trial Chamber rejected the idea that “only State-like organizations may
qualify” as organizations for the purpose of article 7, paragraph 2 (a), and further stated that
“the formal nature of a group and the level of its organization should not be the defining
criterion. Instead ... a distinction should be drawn on whether a group has the capability to
perform acts which infringe on basic human values”.123 In 2012, an International Criminal
Court Pre-Trial Chamber in Ruto stated that, when determining whether a particular group
qualifies as an “organization” under article 7 of the 1998 Rome Statute:
the Chamber may take into account a number of factors, inter alia: (i) whether the
group is under a responsible command, or has an established hierarchy; (ii) whether
the group possesses, in fact, the means to carry out a widespread or systematic attack
against a civilian population; (iii) whether the group exercises control over part of
the territory of a State; (iv) whether the group has criminal activities against the
civilian population as a primary purpose; (v) whether the group articulates, explicitly
or implicitly, an intention to attack a civilian population; (vi) whether the group is
part of a larger group, which fulfils some or all of the abovementioned criteria. 124
(31) As a consequence of the “policy” potentially emanating from a non-State
organization, the definition set forth in paragraphs 1 and 2 of draft article 2 does not require
that the offender be a State official or agent. This approach is consistent with the
development of crimes against humanity under international law. The Commission,
commenting in 1991 on the draft provision on crimes against humanity for what would
become the 1996 draft Code of Crimes against the Peace and Security of Mankind, stated
119 Situation in the Republic of Kenya, Decision, 31 March 2010 (see footnote 44 above), para. 89.
120 Ibid.
121 Katanga, Decision, 30 September 2008 (see footnote 45 above), para. 396 (citing case law of the
International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for
Rwanda, as well as the Commission’s 1991 draft Code of Crimes against the Peace and Security of
Mankind, para. (5) of the commentary to art. 21 of the draft Code of Crimes against the Peace and
Security of Mankind, Yearbook … 1991, vol. II (Part Two), p. 103. See Bemba, Decision, 15 June
2009 (see footnote 44 above), para. 81.
123 Situation in the Republic of Kenya, Decision, 31 March 2010 (see footnote 44 above), para. 90. This
understanding was similarly adopted by the Trial Chamber in the Katanga judgment, which stated:
“That the attack must further be characterised as widespread or systematic does not, however, mean
that the organisation that promotes or encourages it must be structured so as to assume the
characteristics of a State” (Katanga, Judgment, 7 March 2014 (see footnote 45 above), para. 1120).
The Trial Chamber also found that “the ‘general practice accepted as law’... adverts to crimes against
humanity committed by States and organisations that are not specifically defined as requiring quasi-
State characteristics” (ibid., para. 1121).
124 Ruto, Decision, 23 January 2012 (see footnote 50 above), para. 185. See also Situation in the Republic
of Kenya, Decision, 31 March 2010 (see footnote 44 above), para. 93; Situation in the Republic of
Côte d’Ivoire, Case No. ICC-02/11, Corrigendum to the Decision pursuant to Article 15 of the 1998
Rome Statute on the authorization of an investigation into the situation in the Republic of Côte
d’Ivoire, 15 November 2011, Pre-Trial Chamber III, International Criminal Court, paras. 45–46.
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that “the draft article does not confine possible perpetrators of the crimes to public officials
or representatives alone” and that it “does not rule out the possibility that private
individuals with de facto power or organized in criminal gangs or groups might also
commit the kind of systematic or mass violations of human rights covered by the article; in
that case, their acts would come under the draft Code”.125 As discussed previously, the 1996
draft Code added the requirement that, to be crimes against humanity, the inhumane acts
must be “instigated or directed by a Government or by any organization or group”.126 In its
commentary to this requirement, the Commission noted: “The instigation or direction of a
Government or any organization or group, which may or may not be affiliated with a
Government, gives the act its great dimension and makes it a crime against humanity
imputable to private persons or agents of a State”.127 While an organized criminal group or
gang normally does not commit the kind of widespread or systematic violations covered by
draft article 2, it might in certain circumstances.
(32) Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia
accepted the possibility of non-State actors being prosecuted for crimes against humanity.
For example, a Trial Chamber of the International Criminal Tribunal for the Former
Yugoslavia in the Tadić case stated that, “the law in relation to crimes against humanity has
developed to take into account forces which, although not those of the legitimate
government, have de facto control over, or are able to move freely within, defined
territory”.128 That finding was echoed in the Limaj case, where the Trial Chamber viewed
the defendant members of the Kosovo Liberation Army as prosecutable for crimes against
humanity.129
(33) In the Ntaganda case at the International Criminal Court, charges were confirmed
against a defendant associated with two paramilitary groups, the Union des patriotes
congolais and the Forces patriotiques pour la libération du Congo in the Democratic
Republic of the Congo. 130 Similarly, in the Mbarushimana case, the prosecutor pursued
charges against a defendant associated with the Forces démocratiques de libération du
Rwanda, described, according to its statute, as an “armed group seeking to ‘reconquérir et
défendre la souveraineté nationale’ of Rwanda”.131 In the case against Joseph Kony relating
to the situation in Uganda, the defendant is allegedly associated with the Lord’s Resistance
Army, “an armed group carrying out an insurgency against the Government of Uganda and
the Ugandan Army”132 which “is organised in a military-type hierarchy and operates as an
army”.133 With respect to the situation in Kenya, a Pre-Trial Chamber confirmed charges of
crimes against humanity against defendants due to their association in a “network” of
perpetrators “comprised of eminent [Orange Democratic Movement Party (ODM)] political
representatives, representatives of the media, former members of the Kenyan police and
125 Yearbook … 1991, vol. II (Part Two), pp. 103–104, para. (5) of the commentary to art. 21 of the draft
Code of Crimes against the Peace and Security of Mankind. The United Nations Convention against
Transnational Organized Crime defines an “organized criminal group” as “a structured group of three
or more persons, existing for a period of time and acting in concert with the aim of committing one or
more serious crimes or offences established in accordance with this Convention, in order to obtain,
directly or indirectly, a financial or other material benefit.” United Nations Convention against
Transnational Organized Crime, art. 2 (a).
126 Art. 18 of the draft Code of Crimes against the Peace and Security of Mankind, Yearbook … 1996,
vol. II (Part Two), p. 47 (emphasis added).
127 Ibid., para. (5) of the commentary to art. 18 of the draft Code of Crimes against the Peace and
Security of Mankind.
128 Tadić, Opinion and Judgment, 7 May 1997 (see footnote 40 above), para. 654. For further discussion
of non-State perpetrators, see ibid., para. 655.
129 Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, Case No. IT-03-66-T, Judgment, 30
November 2005, Trial Chamber II, International Criminal Tribunal for Former Yugoslavia, paras.
212–214.
130 Ntaganda, Decision, 13 July 2012 (see footnote 47 above), para. 22.
131 Prosecutor v. Callixte Mbarushimana, Decision on the confirmation of charges, Case No. ICC-01/04-
01/10, 16 December 2011, Pre-Trial Chamber I, International Criminal Court, para. 2.
132 Situation in Uganda, Case No. ICC-02/04-01/05, Warrant of arrest for Joseph Kony issued on 8 July
2005 as amended on 27 September 2005, 27 September 2005, Pre-Trial Chamber II, International
Criminal Court, para. 5.
133 Ibid., para. 7.
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army, Kalenjin elders and local leaders”.134 Likewise, charges were confirmed with respect
to other defendants associated with “coordinated attacks that were perpetrated by the
Mungiki and pro-Party of National Unity (‘PNU’) youth in different parts of Nakuru and
Naivasha” that “were targeted at perceived [ODM] supporters using a variety of means of
identification such as lists, physical attributes, roadblocks and language”.135
“With knowledge of the attack”

(34) The third overall requirement is that the perpetrator must commit the act “with
knowledge of the attack”. Jurisprudence from the International Criminal Tribunal for the
Former Yugoslavia and the International Criminal Tribunal for Rwanda has concluded that
the perpetrator must have knowledge that there is an attack on the civilian population and,
further, that his or her act is a part of that attack. 136 This two-part approach is reflected in
the Elements of Crimes under the 1998 Rome Statute, which requires as the last element for
each of the proscribed acts: “The perpetrator knew that the conduct was part of or intended
the conduct to be part of a widespread or systematic attack against a civilian population”.
Even so,
the last element should not be interpreted as requiring proof that the perpetrator had
knowledge of all characteristics of the attack or the precise details of the plan or
policy of the State or organization. In the case of an emerging widespread or
systematic attack against a civilian population, the intent clause of the last element
indicates that this mental element is satisfied if the perpetrator intended to further
such an attack.137
(35) In its decision confirming the charges against Laurent Gbagbo, an International
Criminal Court Pre-Trial Chamber found that “it is only necessary to establish that the
person had knowledge of the attack in general terms”.138 Indeed, it need not be proven that
the perpetrator knew the specific details of the attack;139 rather, the perpetrator’s knowledge
may be inferred from circumstantial evidence. 140 Thus, when finding in the Bemba case that
the MLC troops acted with knowledge of the attack, an International Criminal Court Pre-
Trial Chamber stated that the troops’ knowledge could be “inferred from the methods of the
attack they followed”, which reflected a clear pattern. 141 In the Katanga case, an
International Criminal Court Pre-Trial Chamber found that
knowledge of the attack and the perpetrator’s awareness that his conduct was part of
such attack may be inferred from circumstantial evidence, such as: the accused’s
position in the military hierarchy; his assuming an important role in the broader
criminal campaign; his presence at the scene of the crimes; his references to the
134 Ruto, Decision, 23 January 2012 (see footnote 50 above), para. 182.
135 Situation in the Republic of Kenya in the case of the Prosecutor v. Francis Kirimi Muthaura, Uhuru
Muigai Kenyatta and Mohammed Hussein Ali, Case No. ICC-01/09-02/11, Decision on the
confirmation of charges pursuant to Article 61 (7) (a) and (b) of the Rome Statute, 23 January 2012,
Pre-Trial Chamber II, International Criminal Court, para. 102.
136 See, for example, Kunarac, Judgment, 22 February 2001 (footnote 45 above), para. 418; Kayishema,
Judgment, 21 May 1999 (footnote 41 above), para. 133.
137 International Criminal Court, Elements of Crimes (see footnote 38 above), p. 5.
138 Gbagbo, Decision, 12 June 2014 (see footnote 64 above), para. 214.
139 Kunarac, Judgment, 22 February 2001 (see footnote 45 above), para. 434 (finding that the knowledge
requirement “does not entail knowledge of the details of the attack”).
140 See Blaškić, Judgment, 3 March 2000 (footnote 40 above), para. 259 (finding that knowledge of the
broader context of the attack may be surmised from a number of facts, including “the nature of the
crimes committed and the degree to which they are common knowledge”); Tadić, Opinion and
Judgment, 7 May 1997 (footnote 40 above), para. 657 (“While knowledge is thus required, it is
examined on an objective level and factually can be implied from the circumstances”.). See also
Kayishema, Judgment, 21 May 1999 (footnote 41 above), para. 134 (finding that “actual or
constructive knowledge of the broader context of the attack” is sufficient).
141 Bemba, Decision, 15 June 2009 (see footnote 44 above), para. 126. See Bemba, Judgment, 21 March
2016 (see footnote 44 above), paras. 166–169.
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superiority of his group over the enemy group; and the general historical and
political environment in which the acts occurred.142
(36) Furthermore, the personal motive of the perpetrator for taking part in the attack is
irrelevant; the perpetrator does not need to share the purpose or goal of the broader
attack.143 According to the Appeals Chamber of the International Criminal Tribunal for the
Former Yugoslavia in Kunarac, evidence that the perpetrator committed the prohibited acts
for personal reasons could at most “be indicative of a rebuttable assumption that he was not
aware that his acts were part of that attack”.144 It is the perpetrator’s knowledge or intent
that his or her act is part of the attack that is relevant to satisfying this requirement.
Additionally, this element will be satisfied where it can be proven that the underlying
offence was committed by directly taking advantage of the broader attack, or where the
commission of the underlying offence had the effect of perpetuating the broader attack. 145
For example, in the Kunarac case, the perpetrators were accused of various forms of sexual
violence, acts of torture, and enslavement in regard to Muslim women and girls. 146 A Trial
Chamber of the International Criminal Tribunal for the Former Yugoslavia found that the
accused had the requisite knowledge because they not only knew of the attack against the
Muslim civilian population, but also perpetuated the attack “by directly taking advantage of
the situation created” and “fully embraced the ethnicity-based aggression”.147 Likewise, an
International Criminal Court Trial Chamber has held that the perpetrator must know that
the act is part of the widespread or systematic attack against the civilian population, but the
perpetrator’s motive is irrelevant for the act to be characterized as a crime against
humanity. 148 It is not necessary for the perpetrator to have knowledge of all the
characteristics or details of the attack, nor is it required for the perpetrator to subscribe to
the “State or the organisation’s criminal design”.149
Prohibited acts
(37) Like article 7 of the 1998 Rome Statute, draft article 2, paragraph 1, at
subparagraphs (a)–(k), lists the prohibited acts for crimes against humanity. These
prohibited acts also appear as part of the definition of crimes against humanity contained in
article 18 of the Commission’s 1996 draft Code of Crimes against the Peace and Security of
Mankind, although the language differs slightly. An individual who commits one of these
acts can commit a crime against humanity; the individual need not have committed multiple
acts, but the individual’s act must be “part of” a widespread or systematic attack directed
against any civilian population.150 Determining whether the requisite nexus exists requires
making “an objective assessment, considering, in particular, the characteristics, aims, nature
and/or consequences of the act. Isolated acts that clearly differ in their context and
circumstances from other acts that occur during an attack fall outside the scope of” draft
article 2, paragraph 1.151 The offence does not need to be committed in the heat of the attack
against the civilian population to satisfy this requirement; the offence can be part of the
attack if it can be sufficiently connected to the attack.152
142 Katanga, Decision, 30 September 2008 (see footnote 45 above), para. 402.
143 See, for example, Kunarac, Judgment, 12 June 2002 (footnote 58 above), para. 103; Kupreškić,
Judgment, 14 January 2000 (footnote 25 above), para. 558.
144 Kunarac, Judgment, 12 June 2002 (see footnote 58 above), para. 103.
145 See, for example, Kunarac, Judgment, 22 February 2001 (footnote 45 above), para. 592.
146 Ibid., paras. 2–11
147 Ibid., para. 592.
149 Ibid.
150 See, for example, Kunarac, Judgment, 12 June 2002 (footnote 58 above), para. 100; Tadić, Opinion
and Judgment, 7 May 1997 (footnote 40 above), para. 649.
151 Bemba, Judgment, 21 March 2016 (footnote 44 above), para. 165.
152 See, for example, Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A,
Judgment, 5 May 2009, Appeals Chamber, International Criminal Tribunal for the Former
Yugoslavia, para. 41; Prosecutor v. Mladen Naletilić aka “Tuta” and Vinko Martinović aka “Štela”,
Case No. IT-98-34-T, Judgment, 31 March 2003, Trial Chamber, International Criminal Tribunal for
the Former Yugoslavia, para. 234, Judicial Supplement No. 42, June 2003; Mrkšić, Judgment, 27
September 2007 (footnote 41 above), para. 438; Prosecutor v. Duško Tadić, Case No. IT-94-1-A,
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(38) Two aspects of these subparagraphs bear mention. First, with respect to
subparagraph (h), article 7, paragraph 1 (h), of the 1998 Rome Statute that criminalizes acts
of persecution when undertaken in connection with “any act referred to in this paragraph or
any crime within the jurisdiction of the Court”. The clause “or any crime within the
jurisdiction of the Court” has not been retained for paragraph 1 (h) of draft article 2. The
Commission considered this clause to be designed to establish a specific jurisdiction of the
International Criminal Court and not to indicate the scope of what should constitute
persecution as a crime against humanity more generally or for purposes of national law.
Such a clause is not used as a jurisdictional threshold for other contemporary international
criminal tribunals.153 At the same time, the clause “in connection with any act referred to in
this paragraph” has been retained due to: (a) a concern that otherwise the text would bring
within the definition of crimes against humanity a wide range of discriminatory practices
that do not necessarily amount to crimes against humanity; and (b) a recognition that
subparagraph 1 (k) encompasses, in accordance with its terms, other inhumane acts. As
such, the “in connection with any act referred to in this paragraph” clause provides
guidance as to the nature of the persecution that constitutes a crime against humanity,
specifically persecutory acts of a similar character and severity to those acts listed in the
other subparagraphs of paragraph 1. Separately, it is noted that the clause “or other
grounds …” in subparagraph (h) allows for persecution on grounds other than those
expressly listed, provided that such grounds “are universally recognized as impermissible
under international law”. Certain other grounds have been suggested in this regard, such as
persecution in the form of acts targeting children on the basis of age or birth. 154
(39) Second, with respect to subparagraph (k) on “other inhumane acts”, it is noted that
the Elements of Crimes under the 1998 Rome Statute provide for the following
requirements to constitute a crime against humanity:
(1) The perpetrator inflicted great suffering, or serious injury to body or to
mental or physical health, by means of an inhumane act.
(2) Such act was of a character similar to any other act referred to in article 7,
paragraph 1, of the Statute.
(3) The perpetrator was aware of the factual circumstances that established the
character of the act.
(4) The conduct was committed as part of a widespread or systematic attack
directed against a civilian population.
(5) The perpetrator knew that the conduct was part of or intended the conduct to
be part of a widespread or systematic attack directed against a civilian population.155
Definitions within the definition

(40) As noted above, draft article 2, paragraph 2 (a), defines “attack directed against any
civilian population” for the purpose of draft article 2, paragraph 1. The remaining
subparagraphs (b)–(i) of draft article 2, paragraph 2, define further terms that appear in
Judgment, 15 July 1999, Appeals Chamber, International Criminal Tribunal for the Former
Yugoslavia, para. 249, Judicial Supplement No. 6, June/July 1999.
153 See Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 5 (h) (although it is
noted that the Tribunal’s definition of crimes against humanity included “when committed in armed
conflict”); Statute of the International Criminal Tribunal for Rwanda, art. 3 (h); Statute of the Special
Court for Sierra Leone, art. 2 (h); Extraordinary Chambers of Cambodia Law, art. 5; Protocol on
Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights
(Malabo Protocol) (Malabo, 27 June 2014), art. 28C, para. 1 (h), available from
https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-
rights.
154 Office of the Prosecutor of the International Criminal Court, “Policy on Children” (2016), para. 51
(“The Office considers that … acts targeting children on the basis of age or birth may be charged as
persecution on ‘other grounds’”).
155 See International Criminal Court, Elements of Crimes (footnote 38 above), p. 12.
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paragraph 1, specifically: “extermination”; “enslavement”; 156 “deportation or forcible

transfer of population”; “torture”; “forced pregnancy”; “persecution”; “the crime of
apartheid”; and “enforced disappearance of persons”. These definitions also appear in
article 7 of the 1998 Rome Statute and were viewed by the Commission as relevant for
retention in draft article 2.
(41) Article 7, paragraph 3, of the 1998 Rome Statute provides for the purposes of that
Statute a definition of “gender” as referring “to the two sexes, male and female, within the
context of society. The term ‘gender’ does not indicate any meaning different from the
above”. That paragraph (as well as a cross-reference to that paragraph in article 7,
paragraph 1 (h)), has not been retained in draft article 2. Since the adoption of the Rome
Statute, several developments in international human rights law and international criminal
law have occurred, reflecting the current understanding as to the meaning of the term
“gender”, notably: the 2004 guidance document by the International Committee of the Red
Cross;157 the 2010 Committee on the Elimination of Discrimination against Women general
recommendation No. 28; 158 the 2011 Council of Europe Convention on Preventing and
Combating Violence against Women and Domestic Violence; 159 and recent reports of
United Nations special rapporteurs or independent experts. 160 Moreover, the Office of the
Prosecutor of the International Criminal Court in 2014 issued the “Policy paper on sexual
and gender-based crimes”, which states:
Article 7 (3) of the Statute defines “gender” as referring to “the two sexes, male and
female, within the context of society. The term ‘gender’ does not indicate any
meaning different from the above.” This definition acknowledges the social
construction of gender and the accompanying roles, behaviours, activities, and
attributes assigned to women and men, and girls and boys. The Office will apply and
156 The definition of “enslavement” refers in part to “trafficking in persons”. The Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the
United Nations Convention against Transnational Organized Crime (New York, 15 November 2000),
United Nations, Treaty Series, vol. 2237, No. 39574, p. 319, defines “trafficking in persons” at article
3 (a) as follows:
“‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or
receipt of persons, by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of
the giving or receiving of payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of sexual exploitation,
forced labour or services, slavery or practices similar to slavery, servitude or the removal of
organs”.
157 ICRC, Addressing the Needs of Women Affected by Armed Conflict: an ICRC Guidance Document,
Geneva, 2004, p. 7 (“The term ‘gender’ refers to the culturally expected behaviour of men and
women based on roles, attitudes and values ascribed to them on the basis of their sex, whereas the
term ‘sex’ refers to biological and physical characteristics”).
158 Committee on the Elimination of Discrimination against Women, general recommendation No. 28
(2010) on the core obligations of States parties under article 2 of the Convention on the Elimination
of All Forms of Discrimination against Women, Official Records of the General Assembly, Sixty-sixth
Session, Supplement No. 38 (A/66/38 (Part Two)), annex III, p. 108. Paragraph 5 of the
recommendation refers to gender as “socially constructed identities, attributes and roles for women
and men and society’s social and cultural meaning for these biological differences”.
159 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic
Violence (Istanbul, 11 May 2011), Council of Europe, Treaty Series, No. 210. Article 3 (c) of the
Convention defines “gender” for purposes of the Convention to “mean the socially constructed roles,
behaviours, activities and attributes that a given society considers appropriate for women and men”.
160 See, for example, the report of the Special Rapporteur on extrajudicial, summary or arbitrary
executions on a gender-sensitive approach to arbitrary killings (2017) (A/HRC/35/23), paras. 17 et
seq.; the report of the Independent Expert on protection against violence and discrimination based on
sexual orientation and gender identity (2018) (A/73/152), para. 2 (“Gender identity refers to each
person’s deeply felt internal and individual experience of gender, which may or may not correspond
with the sex assigned at birth, including the personal sense of the body (which may involve, if freely
chosen, modification of bodily appearance or function by medical, surgical or other means) and other
gender expressions, including dress, speech and mannerisms.”).
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interpret this in accordance with internationally recognised human rights pursuant to

article 21(3) [of the 1998 Rome Statute]. 161
A similar approach of viewing gender as a socially constructed (rather than biological)
concept has been taken by various other international authorities162 and in the jurisprudence
of international criminal courts and tribunals. 163
(42) Accordingly, the Commission decided not to include the definition of “gender”
found in article 7, paragraph 3, of the 1998 Rome Statute, thereby allowing the term to be
applied for the purposes of the present draft articles based on an evolving understanding as
to its meaning. While the term is therefore undefined in the present draft articles, the same
is true as well for various other terms used in draft article 2, paragraph 1 (h), such as
“political”, “racial”, “national”, “ethnic”, “cultural”, or “religious”. States, however, may
be guided by the sources indicated above for understanding the meaning of the term
“gender”.
Paragraph 3
(43) Paragraph 3 of draft article 2 provides: “This draft article is without prejudice to any
broader definition provided for in any international instrument, in customary international
law or in national law”. This provision is similar to article 1, paragraph 2, of the 1984
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which provides: “This article is without prejudice to any international
instrument or national legislation which does or may contain provisions of wider
application”.164 Article 10 of the 1998 Rome Statute (appearing in Part II on “Jurisdiction,
161 Office of the Prosecutor of the International Criminal Court, “Policy paper on sexual and gender-
based crimes” (2014), para. 15. Article 21 of the Rome Statute on “applicable law” begins in
paragraph 3 as follows: “The application and interpretation of law pursuant to this article must be
consistent with internationally recognized human rights …”.
162 Identidad de género, e igualdad y no discriminación a parejas del mismo sexo [Gender identity, and
equality and non-discrimination against same-sex couples], Advisory Opinion OC-24/17 of 24
November 2017, Inter-American Court of Human Rights, para. 32 (available only in Spanish);
Committee against Torture, ninth annual report of the Subcommittee on Prevention of Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (2016) (CAT/C/57/4 and Corr.1), para.
53; Committee against Torture, general comment No. 2 (2007) on the implementation of article 2,
Official Records of the General Assembly, Sixty-third Session, Supplement No. 44 (A/63/44), annex
VI; Committee on the Elimination of Discrimination against Women, general recommendation No. 33
(2015) on women’s access to justice (CEDAW/C/GC/33); Committee against Torture, general
comment No. 3 (2012) on the implementation of article 14 by States parties, Official Records of the
General Assembly, Sixty-eighth Session, Supplement No. 44 (A/68/44), annex X; Committee on
Economic, Social and Cultural Rights, general comment No. 16 (2005) on the equal right of men and
women to the enjoyment of all economic, social and cultural rights (art. 3 of the Covenant), Official
Records of the Economic and Social Council, Report on the Thirty-fourth and Thirty-fifth Sessions,
Supplement No. 2 (E/2006/22-E/C.12/2005/4), annex VIII; Report of the Secretary-General, Question
of torture and other cruel, inhuman or degrading treatment or punishment (2001) (A/56/156); Human
Rights Committee, general comment No. 28 (2000) on article 3 (equality of rights between men and
women), Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 40 (A/55/40),
vol. I, annex VI B; Report of the Secretary-General: Implementation of the Outcome of the Fourth
World Conference on Women (1996) (A/51/322); Committee on the Elimination of Discrimination
against Women, general recommendation No. 19 (1993) on violence against women, Official Records
of the General Assembly, Forty-seventh Session, Supplement No. 38 (A/47/38), chap. I.
163 Prosecutor v. Ferdinand Nahimana, Jean Bosco and Hassan Ngeze, Case No. ICTR-99-52-T,
Judgment and Sentence, 3 December 2003, Trial Chamber I, International Criminal Tribunal for
Rwanda, Reports of Orders, Decisions and Judgements 2003, p. 376, at p. 1116, para. 1079;
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgment, 2 November 2001, Trial
Chamber, International Criminal Tribunal for the Former Yugoslavia, para. 327; Prosecutor v.
Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgment, 28 February 2005, Appeals Chamber,
International Criminal Tribunal for the Former Yugoslavia, paras. 369–370; Situation in the
Democratic Republic of Congo in the case of the Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-
01/06, Decision establishing the principles and procedures to be applied to reparations, 7 August
2012, Trial Chamber I, International Criminal Court, para. 191.
164 Convention against Torture, art. 1, para. 2.
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admissibility, and applicable law”) also contains a “without prejudice clause”, which reads:
“Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or
developing rules of international law for purposes other than this Statute”.
(44) Paragraph 3 is meant to ensure that the definition of “crimes against humanity” set
forth in the first two paragraphs of draft article 2 does not call into question any broader
definitions that may exist in international law, in particular in international instruments or
in customary international law, or in national legislation. “International instrument” is to be
understood as being broader than just a legally binding international agreement, but as
being limited to instruments developed by States or international organizations, such as the
United Nations. To the extent that the definition of crimes against humanity is broader in
certain respects under customary international law, then here too the present draft articles
are without prejudice to such law. States also may adopt national laws that contain a
broader definition of crimes against humanity, perhaps under the influence of broader
definitions that may exist in international instruments or in customary international law.
Thus, notwithstanding that an important objective of the draft articles is the harmonization
of national laws, so that they may serve as the basis for robust inter-State cooperation, if a
State wishes to adopt or retain a broader definition in its national law, the present draft
articles do not preclude it from doing so.
(45) For example, the definition of “enforced disappearance of persons” as contained in
draft article 2 follows article 7 of the 1998 Rome Statute, but differs from the definition
contained in the 1992 Declaration on the Protection of All Persons from Enforced
Disappearance, 165 in the 1994 Inter-American Convention on Forced Disappearance of
Persons 166 and in the 2006 International Convention for the Protection of All Persons
against Enforced Disappearance. 167 Those differences principally are that the latter
instruments do not include the element “with the intention of removing them from the
protection of the law”, do not include the words “for a prolonged period of time” and do not
refer to organizations as potential perpetrators of the crime when they act without State
participation.
(46) In light of such differences, the Commission thought it prudent to include the
“without prejudice” clause that appears in draft article 2, paragraph 3. However, any
elements adopted in a national law, which do not fall within the scope of the present draft
articles, would not benefit from the provisions set forth within them, including on
extradition and mutual legal assistance, unless the States concerned so agree.
Article 3
General obligations
1. Each State has the obligation not to engage in acts that constitute crimes
against humanity.
2. Each State undertakes to prevent and to punish crimes against humanity,
which are crimes under international law, whether or not committed in time of
armed conflict.
3. No exceptional circumstances whatsoever, such as armed conflict, internal
political instability or other public emergency, may be invoked as a justification of
crimes against humanity.
Commentary
(1) Draft article 3 sets forth in paragraph 1 the general obligation of States not to engage
in acts that constitute crimes against humanity. Paragraph 2 sets forth a further general
obligation to prevent and punish crimes against humanity. Paragraph 3 makes clear that no
165 Declaration on the Protection of All Persons from Enforced Disappearance, General Assembly
resolution 47/133 of 18 December 1992, art. 1.
166 Inter-American Convention on Forced Disappearance of Persons (Belem, 9 June 1994), Organization
of American States, Treaty Series, No. 60, art. II.
167 International Convention for the Protection of All Persons from Enforced Disappearance (New York,
20 December 2006), United Nations, Treaty Series, vol. 2716, No. 48088, p. 3, art. 2.
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exceptional circumstances whatsoever may be invoked as a justification of crimes against

humanity.
(2) Paragraph 1 of draft article 3 sets forth the first general obligation, which is that
“Each State has the obligation not to engage in acts that constitute crimes against humanity.”
Prior conventions, including the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide and the 1984 Convention against Torture, usually have not expressly
provided that States shall not commit the acts at issue in those conventions. Nevertheless,
the Commission viewed it as desirable for such an obligation to be made explicit in draft
article 3. A formula that calls for States not to engage in “acts that constitute” crimes
against humanity is appropriate since States themselves do not commit crimes; rather,
crimes are committed by persons, but the “acts” that “constitute” such crimes may be acts
attributable to the State under the rules on the responsibility of States for internationally
wrongful acts.
(3) The general obligation “not to engage in acts” contains two components. First,
States have an obligation not “to commit such acts through their own organs, or persons
over whom they have such firm control that their conduct is attributable to the State
concerned under international law”.168 In Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), the International Court of Justice found that the identification of genocide as
a crime, as well as the obligation of a State to prevent genocide, necessarily implies an
obligation of the State not to commit genocide:
Under Article I the States parties are bound to prevent such an act, which it
describes as ‘a crime under international law’, being committed. The Article does
not expressis verbis require States to refrain from themselves committing genocide.
However, in the view of the Court, taking into account the established purpose of the
Convention, the effect of Article I is to prohibit States from themselves committing
genocide. Such a prohibition follows, first, from the fact that the Article categorizes
genocide as ‘a crime under international law’: by agreeing to such a categorization,
the States parties must logically be undertaking not to commit the act so described.
Secondly, it follows from the expressly stated obligation to prevent the commission
of acts of genocide. That obligation requires the States parties, inter alia, to employ
the means at their disposal, in circumstances to be described more specifically later
in this Judgment, to prevent persons or groups not directly under their authority from
committing an act of genocide or any of the other acts mentioned in Article III. It
would be paradoxical if States were thus under an obligation to prevent, so far as
within their power, commission of genocide by persons over whom they have a
certain influence, but were not forbidden to commit such acts through their own
organs, or persons over whom they have such firm control that their conduct is
attributable to the State concerned under international law. In short, the obligation to
prevent genocide necessarily implies the prohibition of the commission of
genocide.169
(4) The Court also decided that the substantive obligation reflected in article I was not,
on its face, limited by territory but, rather, applied “to a State wherever it may be acting or
may be able to act in ways appropriate to meeting the obligations […] in question”.170
(5) A breach of the obligation not to commit directly such acts engages the
responsibility of the State if the conduct at issue is attributable to the State pursuant to the
rules on the responsibility of States for internationally wrongful acts. Indeed, in the context
of disputes that may arise under the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide, article IX refers, inter alia, to disputes “relating to the
responsibility of a State for genocide”. Although much of the focus of the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide is upon prosecuting
168 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment (see footnote 13 above), p. 43 at p. 113, para.
166.
169 Ibid.
170 Ibid., p. 120, para. 183.
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individuals for the crime of genocide, the International Court of Justice has stressed that the
breach of the obligation not to commit genocide is not a criminal violation by the State but,
rather, concerns a breach of international law that engages State responsibility. 171 The
Court’s approach is consistent with views previously expressed by the Commission, 172
including in the commentary to the 2001 draft articles on the responsibility of States for
internationally wrongful acts: “Where crimes against international law are committed by
State officials, it will often be the case that the State itself is responsible for the acts in
question or for failure to prevent or punish them”.173
(6) Second, States have obligations under international law not to aid or assist, or to
direct, control or coerce, another State in the commission of an internationally wrongful
act.174
(7) Paragraph 2 of draft article 3 sets forth a second general obligation: “Each State
undertakes to prevent and to punish crimes against humanity, which are crimes under
international law, whether or not committed in time of armed conflict.” In Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), the International Court of Justice found (again
when considering article I of the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide) that States have an obligation “to employ the means at their disposal ...
to prevent persons or groups not directly under their authority from committing” acts of
genocide. 175 In that instance, the State party is expected to use its best efforts (a due
diligence standard) when it has a “capacity to influence effectively the action of persons
likely to commit, or already committing” the acts, which in turn depends on the State
party’s geographic, political and other links to the persons or groups at issue. 176 At the same
time, the Court found that “a State can be held responsible for breaching the obligation to
prevent genocide only if genocide was actually committed”. 177 Further content of this
second general obligation is addressed in various ways through the more specific
obligations set forth in the draft articles that follow, beginning with draft article 4. Those
specific obligations address steps that States are to take within their national legal systems,
as well as their cooperation with other States, with relevant intergovernmental
organizations and with, as appropriate, other organizations.
(8) The Court also analysed the meaning of “undertake” as contained in article I of the
1948 Convention on the Prevention and Punishment of the Crime of Genocide. At the
provisional measures phase, the Court determined that such an undertaking imposes “a
clear obligation” on the parties “to do all in their power to prevent the commission of any
such acts in the future”.178 At the merits phase, the Court described the ordinary meaning of
the word “undertake” in that context as
to give a formal promise, to bind or engage oneself, to give a pledge or promise, to
agree, to accept an obligation. It is a word regularly used in treaties setting out the
obligations of the Contracting Parties ... It is not merely hortatory or purposive. The
undertaking is unqualified ... and it is not to be read merely as an introduction to
171 Ibid., p. 114, para. 167 (noting that international responsibility is “quite different in nature from
criminal responsibility”).
172 Yearbook … 1998, vol. II (Part Two), p. 65, para. 249 (finding that the Convention on the Prevention
and Punishment of the Crime of Genocide “did not envisage State crime or the criminal responsibility
of States in its article IX concerning State responsibility”).
173 Yearbook … 2001, vol. II (Part. Two) and corrigendum, p. 142, para. (3) of the commentary to art. 58
of the draft articles on responsibility of States for internationally wrongful acts.
174 Ibid., p. 27, arts. 16–18 of the draft articles on responsibility of States for internationally wrongful
acts.
and Herzegovina v. Serbia and Montenegro) (see footnote 13 above), p. 43, at p. 113, para. 166.
176 Ibid., p. 221, para. 430.
177 Ibid., p. 221, para. 431. See Yearbook … 2001, vol. II (Part Two) and corrigendum, p. 27, art. 14,
para. 3 of the draft articles on responsibility of states for internationally wrongful acts: “The breach of
an international obligation requiring a State to prevent a given event occurs when the event occurs”).
178 Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 3, at p. 22, para. 45.
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later express references to legislation, prosecution and extradition. Those features

support the conclusion that Article I, in particular its undertaking to prevent, creates
obligations distinct from those which appear in the subsequent Articles. 179
The undertaking to prevent and punish crimes against humanity, as formulated in paragraph
2 of draft article 3, is intended to express the same kind of legally binding obligation upon
States; it, too, is not merely hortatory or purposive, and is not merely an introduction to
later draft articles.
(9) The International Court of Justice also noted that the duty to punish in the context of
the 1948 Convention on the Prevention and Punishment of the Crime of Genocide is
connected to but distinct from the duty to prevent. While “one of the most effective ways of
preventing criminal acts, in general, is to provide penalties for persons committing such
acts, and to impose those penalties effectively on those who commit the acts one is trying to
prevent”,180 the Court found that “the duty to prevent genocide and the duty to punish its
perpetrators ... are ... two distinct yet connected obligations”.181 Indeed, the “obligation on
each contracting State to prevent genocide is both normative and compelling. It is not
merged in the duty to punish, nor can it be regarded as simply a component of that duty”.182
(10) In the course of stating this second general obligation “to prevent and to punish
crimes against humanity”, paragraph 2 of draft article 3 recognizes such crimes as “crimes
under international law, whether or not committed in time of armed conflict”. While such
language might have been incorporated in paragraph 1 of draft article 3, it is used in
paragraph 2 where the focus is on the prevention and punishment of “crimes” committed by
individuals, rather than on the acts of States.
(11) With respect to crimes against humanity being “crimes under international law”, the
Nürnberg Charter included “crimes against humanity” as a component of the jurisdiction of
the Tribunal. Among other things, the Tribunal noted that “individuals can be punished for
violations of international law. Crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced”.183 Crimes against humanity were also within
the jurisdiction of the International Military Tribunal for the Far East (hereinafter “Tokyo
Tribunal”).184
(12) The principles of international law recognized in the Nürnberg Charter were noted
and reaffirmed in 1946 by the General Assembly. 185 The Assembly also directed the
Commission to “formulate” the Nürnberg Charter principles and to prepare a draft code of
offences. 186 The Commission in 1950 produced the Principles of International Law
Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal,
which stated that crimes against humanity were “punishable as crimes under international
law”.187 Further, the Commission completed in 1954 a draft Code of Offences against the
Peace and Security of Mankind, which, in article 2, paragraph 11, included as an offence a
series of inhuman acts that are today understood to be crimes against humanity, and which
stated in article 1 that “[o]ffences against the peace and security of mankind, as defined in
and Herzegovina v. Serbia and Montenegro), Judgment (see footnote 13 above), p. 43, at p. 111, para.
162.
180 Ibid., p. 219, para. 426.
181 Ibid., para. 425.
182 Ibid., p. 220, para. 427.
183 Judgment of 30 September 1946 (see footnote 92 above), p. 466.
184 Charter of the International Military Tribunal for the Far East, art. 5 (c) (Tokyo, 19 January 1946) (as
amended on 26 April 1946), Treaties and Other International Agreements of the United States of
America 1776–1949, vol. 4, C. Bevans, ed. (Washington, D.C., Department of State, 1968), p. 20, at
p. 23, art. 5 (c) (hereinafter “Tokyo Charter”). No persons, however, were convicted of this crime by
that tribunal.
185 Affirmation of the principles of international law recognized by the Charter of the Nürnberg Tribunal,
General Assembly resolution 95 (I) of 11 December 1946.
186 Formulation of the principles recognized in the Charter of the Nürnberg Tribunal and the judgment
of the Tribunal, General Assembly resolution 177 (II) of 21 November 1947.
187 Yearbook … 1950, vol. II, document A/1316, Part III, p. 376, principle VI of the Nürnberg Principles.
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this Code, are crimes under international law, for which the responsible individuals shall be
punished”.188
(13) The characterization of crimes against humanity as “crimes under international law”
indicates that they exist as crimes whether or not the conduct has been criminalized under
national law. Article 6 (c) of the Nürnberg Charter defined crimes against humanity as the
commission of certain acts “whether or not in violation of the domestic law of the country
where perpetrated”. In 1996, the Commission completed a draft Code of Crimes against the
Peace and Security of Mankind, which provided, inter alia, that crimes against humanity
were “crimes under international law and punishable as such, whether or not they are
punishable under national law”.189 The gravity of such crimes is clear; the Commission has
previously indicated that the prohibition of crimes against humanity is “clearly accepted
and recognized” as a peremptory norm of international law.190
(14) Paragraph 2 of draft article 3 also identifies crimes against humanity as crimes under
international law “whether or not committed in time of armed conflict”. The reference to
“armed conflict” should be read as including both international and non-international armed
conflict.191 The Nürnberg Charter definition of crimes against humanity, as amended by the
Berlin Protocol,192 linked the jurisdiction of the International Military Tribunal over crimes
against humanity to the existence of an international armed conflict; the acts fell under the
Tribunal’s jurisdiction only if committed “in execution of or in connection with” any crime
within the jurisdiction of the Tribunal, meaning a crime against peace or a war crime. As
such, while the Charter did not exclude jurisdiction over acts that had been committed prior
to the armed conflict, the justification for dealing with matters that traditionally were within
the national jurisdiction of a State was based on the crime’s connection to inter-State
conflict. That connection, in turn, suggested heinous crimes occurring on a large-scale,
perhaps as part of a pattern of conduct.193 The International Military Tribunal, charged with
trying the senior political and military leaders of the Third Reich, convicted several
defendants for crimes against humanity committed during the armed conflict, although in
188 Yearbook … 1954, vol. II, p. 150, art. 1 of the draft Code of Offences against the Peace and Security
of Mankind.
189 Yearbook … 1996, vol. II (Part Two), p. 17, para. 50, art. 1 of the draft Code of Crimes against the
Peace and Security of Mankind. The 1996 draft Code contained five categories of crimes, one of
which was crimes against humanity.
190 See footnote 21 above and accompanying text.
191 See ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., 2016, para. 218 of the
commentary to common article 2 (hereinafter “ICRC, Commentary on the First Geneva Convention,
2016”) (“Armed conflicts in the sense of Article 2(1) are those which oppose High Contracting
Parties (i.e. States) and occur when one or more States have recourse to armed force against another
State, regardless of the reasons for or the intensity of the confrontation.”); ibid., para. 387 of the
commentary to common article 3 (“A situation of violence that crosses the threshold of an ‘armed
conflict not of an international character’ is a situation in which organized Parties confront one
another with violence of a certain degree of intensity. It is a determination made based on the facts.”).
192 Protocol Rectifying Discrepancy in Text of Charter (Berlin, 6 October 1945), in Trial of the Major
War Criminals Before the International Military Tribunal (Nuremberg 14 November 1945–1 October
1946), vol. 1 (1947), pp. 17–18 (hereinafter “Berlin Protocol”). The Berlin Protocol replaced a semi-
colon after “during the war” with a comma, so as to harmonize the English and French texts with the
Russian text. Ibid., p. 17. The effect of doing so was to link the first part of the provision to the latter
part of the provision (“in connection with any crime within the jurisdiction of the Tribunal”) and
hence to the existence of an international armed conflict.
193 See United Nations War Crimes Commission, History of the United Nations War Crimes Commission
and the Development of the Laws of War (His Majesty’s Stationery Office, 1948), p. 179 (“Only
crimes which either by their magnitude and savagery or by their large number or by the fact that a
similar pattern was applied at different times and places, endangered the international community or
shocked the conscience of mankind, warranted intervention by States other than that on whose
territory the crimes had been committed, or whose subjects had become their victims”).
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some instances the connection of those crimes with other crimes within the jurisdiction of
the International Military Tribunal was tenuous.194
(15) The Commission’s 1950 Principles of International Law Recognized in the Charter
of the Nürnberg Tribunal and in the Judgment of the Tribunal also defined crimes against
humanity in Principle VI (c) in a manner that required a connection to an armed conflict.195
In its commentary to this principle, the Commission emphasized that the crime need not be
committed during a war, but maintained that pre-war crimes must nevertheless be in
connection with a crime against peace.196 At the same time, the Commission maintained
that “acts may be crimes against humanity even if they are committed by the perpetrator
against his own population”.197 The 1968 Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity referred, in article I (b), to
“[c]rimes against humanity whether committed in time of war or in time of peace as they
are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August
1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December
1946 of the General Assembly of the United Nations”.198
(16) The jurisdiction of the International Criminal Tribunal for the Former Yugoslavia
included “crimes against humanity”. Article 5 of its Statute provided that the Tribunal may
prosecute persons responsible for a series of acts (such as murder, torture or rape) “when
committed in armed conflict, whether international or internal in character, and directed
against any civilian population”. 199 Thus, the formulation used in article 5 retained a
connection to armed conflict, but it is best understood contextually. The Statute of the
Tribunal was developed in 1993 with an understanding that armed conflict in fact existed in
the former Yugoslavia. As such, the formulation used in article 5 (“armed conflict”) was
designed principally to dispel the notion that crimes against humanity had to be linked to an
“international armed conflict”. To the extent that this formulation might be read to suggest
that customary international law requires a nexus to armed conflict, the Tribunal’s Appeals
Chamber later clarified that there was “no logical or legal basis” for retaining a connection
to armed conflict, since “it has been abandoned” in State practice since Nürnberg.200 The
Appeals Chamber also noted that the “obsolescence of the nexus requirement is evidenced
by international conventions regarding genocide and apartheid, both of which prohibit
particular types of crimes against humanity regardless of any connection to armed
conflict”.201 Indeed, the Appeals Chamber later maintained that such a connection in the
Statute of the Tribunal was simply circumscribing the subject-matter of its jurisdiction, not
codifying customary international law.202
(17) In 1994, the Security Council established the International Criminal Tribunal for
Rwanda and provided it with jurisdiction over “crimes against humanity”. Although article
194 See, for example, Kupreškić, Judgment, 14 January 2000 (footnote 25 above), para. 576 (noting the
tenuous link between the crimes against humanity committed by Baldur von Schirach and the other
crimes within the jurisdiction of the International Military Tribunal).
195 Yearbook … 1950, vol. II, document A/1316, Part III, p. 377, principle VI (c) of the Nürnberg
Principles.
196 Ibid., para. 123.
197 Ibid., para. 124.
198 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity (New York, 26 November 1968), United Nations, Treaty Series, vol. 754, No. 10823, p.
73. As of July 2019, there were 55 States parties to this Convention. For a regional convention of a
similar nature, see the European Convention on the Non-Applicability of Statutory Limitation to
Crimes against Humanity and War Crimes (Strasbourg, 25 January 1974), Council of Europe, Treaty
Series, No. 82. As of July 2019, there were eight States parties to this Convention.
199 Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 5.
200 Prosecutor v. Duško Tadić a/k/a “Dule”, Case No. IT-94-1-AR72, Decision on the defence motion
for interlocutory appeal on jurisdiction, 2 October 1995, Appeals Chamber, International Criminal
Tribunal for the Former Yugoslavia, Judicial Reports 1994–1995, vol. I, para. 140.
201 Ibid.
202 See, for example, Kordić, Judgment, 26 February 2001 (footnote 81 above), para. 33; Tadić,
Judgment, 15 July 1999 (footnote 152 above), para. 251 (“[T]he armed conflict requirement is
satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing,
it requires more than does customary international law”).
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3 of the Statute of that Tribunal retained the same series of acts as appeared in the Statute of
the International Criminal Tribunal for the Former Yugoslavia, the chapeau language did
not retain the reference to armed conflict.203 Likewise, article 7 of the 1998 Rome Statute
did not retain any reference to armed conflict, nor has it existed with respect to other
relevant criminal tribunals.204
(18) As such, while early definitions of crimes against humanity required that the
underlying acts be accomplished in connection with armed conflict, that connection has
disappeared from the statutes of contemporary international criminal courts and tribunals,
including the 1998 Rome Statute. In its place, as discussed in relation to the “chapeau”
requirements of draft article 2, paragraph 1 (in conjunction with paragraph 2 (a)), the crime
must be committed as part of a widespread or systematic attack directed against any civilian
population pursuant to or in furtherance of a State or organizational policy to commit such
attack.
(19) Such treaty practice, jurisprudence, and the well-settled acceptance by States
establish that crimes against humanity are crimes under international law that should be
prevented and punished whether or not committed in time of armed conflict, and whether or
not criminalized under national law.
(20) Draft article 3, paragraph 3, indicates that no exceptional circumstances may be
invoked as a justification of crimes against humanity. This text is inspired by article 2,
paragraph 2, of the 1984 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 205 but has been refined for the context of crimes
against humanity. The expression “state of war or threat of war” has been replaced by the
expression “armed conflict,” as was done in draft article 3, paragraph 2. In addition, the
words “such as” are used to stress that the examples given are not meant to be exhaustive.
(21) Comparable language may be found in other treaties addressing serious crimes at the
global or regional level. For example, article 1, paragraph 2, of the 2006 International
Convention for the Protection of All Persons from Enforced Disappearance contains similar
language,206 as does article 5 of the 1985 Inter-American Convention to Prevent and Punish
Torture.207
(22) One advantage of the formulation in draft article 3, paragraph 3, with respect to
crimes against humanity is that it is drafted in a manner that relates to the conduct of either
State or non-State actors. At the same time, the paragraph is addressing this issue only in
the context of the obligations of States as set forth in paragraphs 1 and 2 and not, for
example, in the context of possible defences by an individual in a criminal proceeding or
other grounds for excluding criminal responsibility.
203 Statute of the International Criminal Tribunal for Rwanda, art. 3. See Semanza v. Prosecutor, Case
No. ICTR-97-20-A, Judgment, 20 May 2005, Appeals Chamber, International Criminal Tribunal for
Rwanda, para. 269 (“[C]ontrary to Article 5 of the [Statute of the International Criminal Tribunal for
the Former Yugoslavia], Article 3 of the [Statute of the International Criminal Tribunal for Rwanda]
does not require that the crimes be committed in the context of an armed conflict. This is an important
distinction”).
204 See, for example, Case No. 002/19-09-2007-ECCC/SC, Appeal Judgment, 23 November 2016,
Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, para. 721 (finding that
the definition of crimes against humanity under customary international law by 1975 did not require a
nexus to an armed conflict).
205 Convention against Torture, art. 2, para. 2 (“No exceptional circumstances whatsoever, whether a
state of war or a threat of war, internal political instability or any other public emergency, may be
invoked as a justification of torture”).
206 International Convention for the Protection of All Persons from Enforced Disappearance, art.1, para.
2 (“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as a justification for enforced
disappearance”).
207 Inter-American Convention to Prevent and Punish Torture (Cartagena, 9 December 1985),
Organization of American States, Treaty Series, No. 67, art. 5 (“The existence of circumstances such
as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife,
suspension of constitutional guarantees, domestic political instability, or other public emergencies or
disasters shall not be invoked or admitted as justification for the crime of torture”).
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Article 4
Obligation of prevention
Each State undertakes to prevent crimes against humanity, in conformity with
international law, through:
(a) effective legislative, administrative, judicial or other appropriate
preventive measures in any territory under its jurisdiction; and
(b) cooperation with other States, relevant intergovernmental
organizations, and, as appropriate, other organizations.
Commentary
(1) Draft article 4 elaborates upon the obligation to prevent crimes against humanity that
is set forth in general terms in draft article 3, paragraph 2. In considering such an obligation,
the Commission viewed it as pertinent to survey existing treaty practice concerning the
prevention of crimes and other acts. In many instances, those treaties address acts that,
when committed under certain circumstances, can constitute crimes against humanity (for
example, genocide, torture, apartheid, or enforced disappearance). As such, the obligation
of prevention set forth in those treaties extends as well to prevention of the acts in question
when they also qualify as crimes against humanity.
(2) An early significant example of an obligation of prevention may be found in the
1948 Convention on the Prevention and Punishment of the Crime of Genocide, which
provides in article I: “The Contracting Parties confirm that genocide, whether committed in
time of peace or in time of war, is a crime under international law which they undertake to
prevent and to punish”.208 Further, article V provides: “The Contracting Parties undertake to
enact, in accordance with their respective Constitutions, the necessary legislation to give
effect to the provisions of the present Convention and, in particular, to provide effective
penalties for persons guilty of genocide or any of the other acts enumerated in article III”.
Article VIII provides: “Any Contracting Party may call upon the competent organs of the
United Nations to take such action under the Charter of the United Nations as they consider
appropriate for the prevention and suppression of acts of genocide or any of the other acts
enumerated in article III”. As such, the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide contains within it several elements relating to prevention: a
general obligation to prevent genocide; an obligation to enact national measures to give
effect to the provisions of the Convention; and a provision for States parties to call upon the
competent organs of the United Nations to act for the prevention of genocide.
(3) Such an obligation to take preventive measures is a feature of most multilateral
treaties addressing crimes since the 1960s. Examples include: the 1971 Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation; 209 the 1973 Convention
on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents;210 the 1973 Convention on the Suppression and Punishment
of the Crime of Apartheid; 211 the 1979 International Convention against the Taking of
208 Convention on the Prevention and Punishment of the Crime of Genocide, art. I.
209 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 23
September 1971), United Nations, Treaty Series, vol. 974, No. 14118, p. 177. Article 10, paragraph 1,
provides: “Contracting States shall, in accordance with international and national law, endeavour to
take all practicable measure[s] for the purpose of preventing the offences mentioned in Article 1”.
210 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents (New York, 14 December 1973), United Nations, Treaty Series, vol.
1035, No. 15410, p. 167, art. 4 (“States Parties shall co-operate in the prevention of the crimes set
forth in article 2, particularly by: (a) taking all practicable measures to prevent preparations in their
respective territories for the commission of those crimes within or outside their territories”).
211 International Convention on the Suppression and Punishment of the Crime of Apartheid (New York,
30 November 1973), United Nations, Treaty Series, vol. 1015, No. 14861, p. 243, art. IV: (“The
States Parties to the present Convention undertake ... (a) to adopt any legislative or other measures
necessary to suppress as well as to prevent any encouragement of the crime of apartheid and similar
segregationist policies or their manifestations and to punish persons guilty of that crime”).
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Hostages;212 the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment; 213 the 1985 Inter-American Convention to Prevent and Punish
Torture;214 the 1994 Inter-American Convention on the Forced Disappearance of Persons; 215
the 1994 Convention on the Safety of United Nations and Associated Personnel; 216 the 1997
International Convention on the Suppression of Terrorist Bombings; 217 the 2000 United
Nations Convention against Transnational Organized Crime; 218 the 2000 Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime; 219
the 2000 Protocol against the Smuggling of Migrants by Land, Sea, and Air, supplementing
the United Nations Convention against Transnational Organized Crime; 220 the 2001
212 International Convention against the Taking of Hostages (New York, 17 December 1979), United
Nations, Treaty Series, vol. 1316, No. 21931, p. 205, art. 4 (“States Parties shall co-operate in the
prevention of the offences set forth in article 1, particularly by: (a) Taking all practicable measures to
prevent preparations in their respective territories for the commission of ... offences ... including
measures to prohibit in their territories illegal activities of persons, groups and organizations that
encourage, instigate, organize or engage in the perpetration of acts of taking of hostages”).
213 Convention against Torture, art. 2, para. 1 (“Each State Party shall take effective legislative,
administrative, judicial or other measures to prevent acts of torture in any territory under its
jurisdiction”).
214 Inter-American Convention to Prevent and Punish Torture, art. 1 (“The State Parties undertake to
prevent and punish torture in accordance with the terms of this Convention”). Article 6 provides:
“The States Parties likewise shall take effective measures to prevent and punish other cruel, inhuman,
or degrading treatment or punishment within their jurisdiction”.
215 Inter-American Convention on Forced Disappearance of Persons, art. 1 (“The States Parties to this
Convention undertake ... (c) To cooperate with one another in helping to prevent, punish, and
eliminate the forced disappearance of persons; (d) To take legislative, administrative, judicial, and
any other measures necessary to comply with the commitments undertaken in this Convention”).
216 Convention on the Safety of United Nations and Associated Personnel (New York, 9 December
1994), United Nations, Treaty Series, vol. 2051, No. 35457, p. 363, art. 11 (“States Parties shall
cooperate in the prevention of the crimes set out in article 9, particularly by: (a) Taking all practicable
measures to prevent preparations in their respective territories for the commission of those crimes
within or outside their territories; and (b) Exchanging information in accordance with their national
law and coordinating the taking of administrative and other measures as appropriate to prevent the
commission of those crimes”).
217 International Convention for the Suppression of Terrorist Bombings (New York, 15 December 1997),
United Nations, Treaty Series, vol. 2149, No. 37517, p. 256, art. 15 (“States Parties shall cooperate in
the prevention of the offences set forth in article 2”).
218 United Nations Convention against Transnational Organized Crime, art. 9, para. 1 (“In addition to the
measures set forth in article 8 of this Convention, each State Party shall, to the extent appropriate and
consistent with its legal system, adopt legislative, administrative or other effective measures to
promote integrity and to prevent, detect and punish the corruption of public officials”); art. 9, para. 2
(“Each State Party shall take measures to ensure effective action by its authorities in the prevention,
detection and punishment of the corruption of public officials, including providing such authorities
with adequate independence to deter the exertion of inappropriate influence on their actions”); art. 29,
para. 1 (“Each State Party shall, to the extent necessary, initiate, develop or improve specific training
programmes for its law enforcement personnel, including prosecutors, investigating magistrates and
customs personnel, and other personnel charged with the prevention, detection and control of the
offences covered by this Convention”); art. 31, para. 1 (“States Parties shall endeavour to develop and
evaluate national projects and to establish and promote best practices and policies aimed at the
prevention of transnational organized crime”).
219 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime, art. 9, para. 1
(“States Parties shall establish comprehensive policies, programmes and other measures: (a) To
prevent and combat trafficking in persons; and (b) To protect victims of trafficking in persons,
especially women and children, from revictimization”).
220 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations
Convention against Transnational Organized Crime (New York, 15 November 2000), United Nations,
Treaty Series, vol. 2241, No. 39574, p. 480, art. 11, para. 1 (“Without prejudice to international
commitments in relation to the free movement of people, States Parties shall strengthen, to the extent
possible, such border controls as may be necessary to prevent and detect the smuggling of migrants”);
art. 11, para. 2 (“Each State Party shall adopt legislative or other appropriate measures to prevent, to
the extent possible, means of transport operated by commercial carriers from being used in the
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Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and
Components and Ammunition, supplementing the United Nations Convention against
Transnational Organized Crime;221 the 2002 Optional Protocol to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; 222 the 2003
United Nations Convention against Corruption;223 and the 2006 International Convention
for the Protection of All Persons from Enforced Disappearance. 224
(4) Some multilateral human rights treaties, even though not focused on the prevention
and punishment of crimes as such, contain obligations to prevent and suppress human rights
violations. Examples include: the 1966 International Convention on the Elimination of All
commission of the offence established in accordance with article 6, paragraph 1 (a), of this
Protocol”); art. 14, para. 1 (“States Parties shall provide or strengthen specialized training for
immigration and other relevant officials in preventing the conduct set forth in article 6 of this
Protocol”).
221 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components
and Ammunition, supplementing the United Nations Convention against Transnational Organized
Crime (New York, 31 May 2001), United Nations, Treaty Series, vol. 2326, No. 39574, p. 208, art. 9
(“A State Party that does not recognize a deactivated firearm as a firearm in accordance with its
domestic law shall take the necessary measures, including the establishment of specific offences if
appropriate, to prevent the illicit reactivation of deactivated firearms”); art. 11 (“In an effort to detect,
prevent and eliminate the theft, loss or diversion of, as well as the illicit manufacturing of and
trafficking in, firearms, their parts and components and ammunition, each State Party shall take
appropriate measures: (a) To require the security of firearms, their parts and components and
ammunition at the time of manufacture, import, export and transit through its territory; and (b) To
increase the effectiveness of import, export and transit controls, including, where appropriate, border
controls, and of police and customs transborder cooperation”); art. 14 (“States Parties shall cooperate
with each other and with relevant international organizations, as appropriate, so that States Parties
may receive, upon request, the training and technical assistance necessary to enhance their ability to
prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms”).
222 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (New York, 18 December 2002), United Nations, Treaty Series, vol. 2375,
No. 24841, p. 237, preamble (“Recalling that the effective prevention of torture and other cruel,
inhuman or degrading treatment or punishment requires education and a combination of various
legislative, administrative, judicial and other measures”); art. 3 (“Each State party shall set up,
designate or maintain at the domestic level one or several visiting bodies for the prevention of torture
and other cruel, inhuman or degrading treatment or punishment”).
223 United Nations Convention against Corruption, art. 6, para. 1 (“Each State Party shall, in accordance
with the fundamental principles of its legal system, ensure the existence of a body or bodies, as
appropriate, that prevent corruption”); art. 9, para. 1 (“Each State Party shall, in accordance with the
fundamental principles of its legal system, take the necessary steps to establish appropriate systems of
procurement, based on transparency, competition and objective criteria in decision-making, that are
effective, inter alia, in preventing corruption”); art. 12, para. 1 (“Each State Party shall take measures,
in accordance with the fundamental principles of its domestic law, to prevent corruption involving the
private sector, enhance accounting and auditing standards in the private sector and, where appropriate,
provide effective, proportionate and dissuasive civil, administrative or criminal penalties for failure to
comply with such measures”).
224 International Convention for the Protection of All Persons from Enforced Disappearance, preamble
(“Determined to prevent enforced disappearances and to combat impunity for the crime of enforced
disappearance”); art. 23 (“1. Each State Party shall ensure that the training of law enforcement
personnel, civil or military, medical personnel, public officials and other persons who may be
involved in the custody or treatment of any person deprived of liberty includes the necessary
education and information regarding the relevant provisions of this Convention, in order to: (a)
Prevent the involvement of such officials in enforced disappearances; (b) Emphasize the importance
of prevention and investigations in relation to enforced disappearances; (c) Ensure that the urgent
need to resolve cases of enforced disappearance is recognized. 2. Each State Party shall ensure that
orders or instructions prescribing, authorizing or encouraging enforced disappearance are prohibited.
Each State Party shall guarantee that a person who refuses to obey such an order will not be punished.
3. Each State Party shall take the necessary measures to ensure that the persons referred to in
paragraph 1 of this article who have reason to believe that an enforced disappearance has occurred or
is planned report the matter to their superiors and, where necessary, to the appropriate authorities or
bodies vested with powers of review or remedy”).
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Forms of Racial Discrimination;225 the 1979 Convention on the Elimination of All Forms of
Discrimination against Women; 226 and the 2011 Council of Europe Convention on
Preventing and Combating Violence against Women and Domestic Violence. 227 Some
treaties do not refer expressly to “prevention” or “elimination” of the act but, rather, focus
on an obligation to take appropriate legislative, administrative, and other measures to “give
effect” to or to “implement” the treaty, which may be seen as encompassing necessary or
appropriate measures to prevent the act. Examples include the 1966 International Covenant
on Civil and Political Rights228 and the 1989 Convention on the Rights of the Child. 229
(5) The International Court of Justice has stated that, when engaging in measures of
prevention, “it is clear that every State may only act within the limits permitted by
international law”. 230 The Commission deemed it important to express that requirement
explicitly in the chapeau of draft article 4, and therefore has included a clause indicating
that any measures of prevention must be “in conformity with international law”. Thus, the
measures undertaken by a State to fulfil its obligation to prevent crimes against humanity
must be consistent with the rules of international law, including rules on the use of force set
forth in the Charter of the United Nations, international humanitarian law, and human rights
law. The State is only expected to take such measures as it legally can take under
international law to prevent crimes against humanity.
(6) Draft article 4 obliges States to prevent crimes against humanity in two specific
ways provided for in subparagraphs (a) and (b), respectively.
(7) First, pursuant to subparagraph (a) of draft article 4, States must pursue actively and
in advance measures designed to help prevent the offence from occurring, through
“effective legislative, administrative, judicial or other appropriate preventive measures in
any territory under its jurisdiction”. This text is inspired by article 2, paragraph 1, of the
1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which provides: “Each State Party shall take effective legislative,
225 International Convention on the Elimination of All Forms of Racial Discrimination (New York, 7
March 1966), United Nations, Treaty Series, vol. 660, No. 9464, p. 195, art. 3 (“States Parties
particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate
all practices of this nature in territories under their jurisdiction”).
226 Convention on the Elimination of All Forms of Discrimination against Women (New York, 18
December 1979), United Nations, Treaty Series, vol. 1249, No. 20378, p. 13, art. 2 (“States Parties
condemn discrimination against women in all its forms, agree to pursue by all appropriate means and
without delay a policy of eliminating discrimination against women”) and art. 3 (“States Parties shall
take in all fields, in particular in the political, social, economic and cultural fields, all appropriate
measures, including legislation, to ensure the full development and advancement of women, for the
purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms
on a basis of equality with men”).
227 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic
Violence, art. 4, para. 2 (“Parties condemn all forms of discrimination against women and take,
without delay, the necessary legislative and other measures to prevent it, in particular by: embodying
in their national constitutions or other appropriate legislation the principle of equality between women
and men and ensuring the practical realisation of this principle; prohibiting discrimination against
women, including through the use of sanctions, where appropriate; abolishing laws and practices
which discriminate against women”).
228 International Covenant on Civil and Political Rights (New York, 16 December 1966), United Nations,
Treaty Series, vol. 999, No. 14668, p. 171, art. 2, para. 2 (“Where not already provided for by existing
legislative or other measures, each State Party to the present Covenant undertakes to take the
necessary steps, in accordance with its constitutional processes and with the provisions of the present
Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights
recognized in the present Covenant”).
229 Convention on the Rights of the Child (New York, 20 November 1989), United Nations, Treaty
Series, vol. 1577, No. 27531, p. 3, art. 4 (“States Parties shall undertake all appropriate legislative,
administrative, and other measures for the implementation of the rights recognized in the present
Convention”).
and Herzegovina v. Serbia and Montenegro), Judgment (see footnote 13 above), p. 43, at p. 221, para.
430.
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administrative, judicial or other measures to prevent acts of torture in any territory under its
jurisdiction”.231
(8) The term “other appropriate preventive measures” rather than just “other measures”
is used to reinforce the point that the measures at issue in subparagraph (a) relate solely to
those aimed at prevention. The term “appropriate” offers some flexibility to each State
when implementing this obligation, allowing it to tailor other preventive measures to the
circumstances faced by that particular State. The term “effective” implies that the State is
expected to keep the measures that it has taken under review and, if they are deficient, to
improve them through more effective measures. In commenting on the analogous provision
in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, the Committee against Torture has stated:
States parties are obligated to eliminate any legal or other obstacles that impede the
eradication of torture and ill-treatment; and to take positive effective measures to
ensure that such conduct and any recurrences thereof are effectively prevented.
States parties also have the obligation continually to keep under review and improve
their national laws and performance under the Convention in accordance with the
Committee’s concluding observations and views adopted on individual
communications. If the measures adopted by the State party fail to accomplish the
purpose of eradicating acts of torture, the Convention requires that they be revised
and/or that new, more effective measures be adopted.232
(9) As to the specific types of measures that shall be pursued by a State, in 2015 the
Human Rights Council adopted a resolution on the prevention of genocide 233 that provides
some insights into the kinds of measures that are expected in fulfilment of article I of the
1948 Convention on the Prevention and Punishment of the Crime of Genocide. Among
other things, the resolution: (a) reiterated “the responsibility of each individual State to
protect its population from genocide, which entails the prevention of such a crime,
including incitement to it, through appropriate and necessary means”; 234 (b) encouraged
“Member States to build their capacity to prevent genocide through the development of
individual expertise and the creation of appropriate offices within Governments to
strengthen the work on prevention”; 235 and (c) encouraged “States to consider the
appointment of focal points on the prevention of genocide, who could cooperate and
exchange information and best practices among themselves and with the Special Adviser to
the Secretary-General on the Prevention of Genocide, relevant United Nations bodies and
with regional and subregional mechanisms”.236
(10) In the regional context, the 1950 Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention on Human Rights) 237 contains no express
obligation to “prevent” violations of the Convention, but the European Court of Human
Rights has construed article 2, paragraph 1 (on the right to life), to contain a positive
obligation on States parties to safeguard the lives of those within their jurisdiction,
consisting of two aspects: (a) the duty to provide a regulatory framework and (b) the
obligation to take preventive measures. 238 At the same time, the Court has recognized that

232 See Committee against Torture, general comment No. 2 (2007).
233 Report of the Human Rights Council, Official Records of the General Assembly, Seventieth Session,
Supplement No. 53 (A/70/53), chap. II, resolution 28/34 on the prevention of genocide, adopted by the
Human Rights Council on 27 March 2015.
234 Ibid., para. 2.
235 Ibid., para. 3.
236 Ibid., para. 4.
237 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November
1950), United Nations, Treaty Series, vol. 213, No. 2889, p. 221.
238 Makaratzis v. Greece, Application No. 50385/99, Judgment of 20 December 2004, Grand Chamber,
European Court of Human Rights, ECHR 2004-XI, para. 57; see Kiliç v. Turkey, Application No.
22492/93, Judgment of 28 March 2000, European Court of Human Rights, ECHR 2000-III, para. 62
(finding that article 2, paragraph 1, obliged a State party not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps within its domestic legal system to safeguard
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the State party’s obligation in this regard is limited.239 The Court has similarly held that
States parties have an obligation, pursuant to article 3 of the Convention to prevent torture
and other forms of ill-treatment.240 Likewise, although the 1969 American Convention on
Human Rights241 contains no express obligation to “prevent” violations of the Convention,
the Inter-American Court of Human Rights, when construing the obligation of the States
parties to “ensure” the free and full exercise of the rights recognized by the Convention, 242
has found that this obligation implies a “duty to prevent”, which in turn requires the State
party to pursue certain steps. The Court has said:
This duty to prevent includes all those means of a legal, political, administrative and
cultural nature that promote the protection of human rights and ensure that any
violations are considered and treated as illegal acts, which, as such, may lead to the
punishment of those responsible and the obligation to indemnify the victims for
damages. It is not possible to make a detailed list of all such measures, since they
vary with the law and the conditions of each State Party. 243
Similar reasoning has animated the Court’s approach to the interpretation of article 6 of the
1985 Inter-American Convention to Prevent and Punish Torture. 244
(11) Thus, the specific preventive measures that any given State shall pursue with respect
to crimes against humanity will depend on the context and risks at issue for that State with
respect to these offences. Such an obligation usually would oblige the State at least to: (a)
adopt national laws and policies as necessary to establish awareness of the criminality of
the act and to promote early detection of any risk of its commission; (b) continually keep
those laws and policies under review and as necessary improve them; (c) pursue initiatives
that educate governmental officials as to the State’s obligations under the draft articles; (d)
implement training programmes for police, military, militia and other relevant personnel as
necessary to help prevent the commission of crimes against humanity; and (e) once the
proscribed act is committed, fulfil in good faith any other obligations to investigate and
either prosecute or extradite offenders, since doing so serves, in part, to deter future acts by
the lives of those within its jurisdiction); Application No. 47848/08, Judgment of 17 July 2014, Grand
Chamber, European Court of Human Rights, ECHR 2014, para. 130.
239 Mahmut Kaya v. Turkey, Application No. 22535/93, Judgment of 28 March 2000, First Section,
European Court of Human Rights, ECHR 2000-III, para. 86 (“Bearing in mind the difficulties in
policing modern societies, the unpredictability of human conduct and the operational choices which
must be made in terms of priorities and resources, the positive obligation [of article 2, paragraph 1,]
must be interpreted in a way which does not impose an impossible or disproportionate burden on the
authorities”.); see also Kerimova and others v. Russia, Application Nos. 17170/04, 20792/04,
22448/04, 23360/04, 5681/05, and 5684/05, Final Judgment of 15 September 2011, First Section,
European Court of Human Rights, para. 246; Osman v. the United Kingdom, Judgment of 28 October
1998, Grand Chamber, European Court of Human Rights, Reports 1998-VIII, para. 116.
240 A v. United Kingdom, Judgment of 23 September 1998, European Court of Human Rights, Reports of
Judgments and Decisions 1998-VI, para. 22; O’Keeffe v. Ireland [Grand Chamber], Application No.
35810/09, Judgment of 28 January 2014European Court of Human Rights, ECHR 2014, para. 144.
241 American Convention on Human Rights: “Pact of San José, Costa Rica” (San José, 22 November
1969), Organization of American States, Treaty Series, vol. 1144, No. 17955, p. 123.
242 Article 1, paragraph 1, reads: “The States Parties to this Convention undertake to respect the rights
and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination”. It is noted that article 1 of the
African Charter on Human and Peoples’ Rights provides that the States parties “shall recognise the
rights, duties and freedoms enshrined in [the] Charter and shall undertake to adopt legislative or other
measures to give effect to them”. African Charter on Human and Peoples’ Rights (“Banjul Charter”)
(Nairobi, 27 June 1981), United Nations, Treaty Series, vol. 1520, No. 26363, p. 217.
243 Velásquez-Rodríguez v. Honduras, Judgment of 29 July 1988 (Merits), Inter-American Court of
Human Rights, Series C, No. 4, para. 175; see also Gómez-Paquiyauri Brothers v. Peru, Judgment of
8 July 2004 (Merits, Reparations and Costs), Inter-American Court of Human Rights, Series C, No.
110, para. 155; Juan Humberto Sánchez v. Honduras, Judgment of 7 June 2003 (Preliminary
Objections, Merits, Reparations and Costs), Inter-American Court of Human Rights, Series C, No. 99,
paras. 137 and 142.
244 Tibi v. Ecuador, Judgment of 7 September 2004 (Preliminary Objections, Merits, Reparations and
Costs), Inter-American Court of Human Rights, Series C, No. 114, para. 159; see also Gómez-
Paquiyauri Brothers v. Peru (footnote 243 above), para. 155.
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others.245 Some measures, such as training programmes, may already exist in the State to
help prevent wrongful acts (such as murder, torture or rape) that relate to crimes against
humanity. The State is obliged to supplement those measures, as necessary, specifically to
prevent crimes against humanity. Here, too, international responsibility of the State arises if
the State has failed to use its best efforts to organize the governmental and administrative
apparatus, as necessary and appropriate, in order to prevent as far as possible crimes against
humanity.246
(12) Subparagraph (a) of draft article 4, refers to a State pursuing effective legislative,
administrative, judicial or other preventive measures “in any territory under its jurisdiction”.
Such a formulation, which is used at various places in the draft articles, covers the territory
of a State, but also covers other territory under the State’s jurisdiction. As the Commission
has previously explained,
it covers situations in which a State is exercising de facto jurisdiction, even though it
lacks jurisdiction de jure, such as in cases of unlawful intervention, occupation and
unlawful annexation. Reference may be made, in this respect, to the advisory
opinion by [the International Court of Justice] in the Namibia case. In that advisory
opinion, the Court, after holding South Africa responsible for having created and
maintained a situation which the Court declared illegal and finding South Africa
under an obligation to withdraw its administration from Namibia, nevertheless
attached certain legal consequences to the de facto control of South Africa over
Namibia.247
245 For comparable measures with respect to prevention of specific types of human rights violations, see
Committee on the Elimination of Discrimination against Women, general recommendation No. 6
(1988) on effective national machinery and publicity, paras. 1–2, Official Records of the General
Assembly, Forty-third Session, Supplement No. 38 (A/43/38), chap. V, para. 770; Committee on the
Elimination of Discrimination against Women, general recommendation No. 15 (1990) on the
avoidance of discrimination against women in national strategies for the prevention and control of
acquired immunodeficiency syndrome (AIDS), ibid., Forty-fifth Session, Supplement No. 38
(A/45/38), chap. IV, para. 438; Committee on the Elimination of Discrimination against Women,
general recommendation No. 19 (1992) on violence against women, para. 9, ibid., Forty-seventh
Session, Supplement No. 38 (A/47/38), chap. I; Committee on the Rights of the Child, general
comment No. 5 (2003) on general measures of implementation of the Convention, para. 9, ibid., Fifty-
ninth Session, Supplement No. 41 (A/59/41), annex XI; Human Rights Committee, general comment
No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant,
paras. 6–7, in ibid., Fifty-ninth Session, Supplement No. 40 (A/59/40), vol. I, annex III; Committee on
the Rights of the Child, general comment No. 6 (2005) on treatment of unaccompanied and separated
children outside their country of origin, paras. 50–63, ibid., Sixty-first Session, Supplement No. 41
(A/61/41), annex II; Committee on the Elimination of Racial Discrimination, general
recommendation 31 (2005) on the prevention of racial discrimination in the administration and
functioning of the criminal justice system, para. 5, ibid., Sixtieth Session, Supplement No. 18
(A/60/18), chap. IX, para. 460; see also Basic Principles and Guidelines on the Right to a Remedy
and Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law, General Assembly resolution 60/147 of 16 December
2005, annex, principle 3 (a) (“The obligation to respect, ensure respect for and implement
international human rights law and international humanitarian law as provided for under the
respective bodies of law, includes, inter alia, the duty to: (a) Take appropriate legislative and
administrative and other appropriate measures to prevent violations”).
246 Training or dissemination programmes may already exist in relation to international humanitarian law
and the need to prevent the commission of war crimes. Common article 1 to the 1949 Geneva
Conventions obliges High Contracting Parties “to respect and ensure respect” for the rules of
international humanitarian law, which may have encouraged pursuit of such programmes. See ICRC,
Commentary on the First Geneva Convention, 2016, paras. 145–146, 150, 154, 164 and 178 (on
common article 1). Further, article 49 of Geneva Convention I (a provision common to the other
Conventions) also imposes obligations to enact legislation to provide effective penal sanctions and to
suppress acts contrary to the Convention. See ibid., paras. 2842, 2855 and 2896 (on article 49).
247 Yearbook … 2001, vol. II (Part Two) and corrigendum, para. (12) of the commentary to art. 1 of the
draft articles on the prevention of transboundary harm from hazardous activities, p. 151 (citing to
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
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(13) Second, pursuant to subparagraph (b) of draft article 4, States have an obligation to
pursue certain forms of cooperation with other States, relevant intergovernmental
organizations, and, as appropriate, other organizations. The duty of States to cooperate in
the prevention of crimes against humanity arises, in the first instance, from Article 1,
paragraph 3, of the Charter of the United Nations, which indicates that one of the purposes
of the Charter is to “achieve international cooperation in solving international problems
of ... [a] humanitarian character, and in promoting and encouraging respect for human
rights and for fundamental freedoms for all”. Further, in Articles 55 and 56 of the Charter,
all Members of the United Nations pledge “to take joint and separate action in cooperation
with the Organization for the achievement of” certain purposes, including “universal
respect for, and observance of, human rights and fundamental freedoms for all”.
Specifically with respect to preventing crimes against humanity, the General Assembly of
the United Nations recognized in its 1973 Principles of International Cooperation in the
Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes
against Humanity a general responsibility for inter-State cooperation and intra-State action
to prevent the commission of war crimes and crimes against humanity. Among other things,
the Assembly declared that “States shall co-operate with each other on a bilateral and
multilateral basis with a view to halting and preventing war crimes and crimes against
humanity, and shall take the domestic and international measures necessary for that
purpose”.248
(14) Consequently, subparagraph (b) of draft article 4 indicates that States shall cooperate
with each other to prevent crimes against humanity and cooperate with relevant
intergovernmental organizations. The term “relevant” is intended to indicate that
cooperation with any particular intergovernmental organization will depend, among other
things, on the organization’s functions and mandate, on the legal relationship of the State to
that organization, and on the context in which the need for cooperation arises. Further,
subparagraph (b) provides that States shall cooperate, as appropriate, with other
organizations, such as the components of the International Red Cross and Red Crescent
Movement, within the limits of their respective mandates. 249 These organizations include
non-governmental organizations that could play an important role in the prevention of
crimes against humanity in specific countries. The term “as appropriate” is used to indicate
that the obligation of cooperation, in addition to being contextual in nature, does not extend
to these organizations to the same extent as it does to States and relevant intergovernmental
organizations.
1971, p. 16, at p. 54, para. 118). See also Yearbook … 2006, vol. II (Part Two), p. 70, para. (25) of the
commentary to principle 2 of the draft principles on the allocation of loss in the case of transboundary
harm arising out of hazardous activities; Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996, p. 226, at p. 242, para. 29 (referring to “the general obligation of States
to ensure that activities within their jurisdiction and control respect the environment of other States or
of areas beyond national control”).
248 Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of
Persons Guilty of War Crimes and Crimes against Humanity, General Assembly resolution 3074
(XXVIII) of 3 December 1973, para. 3.
249 The International Red Cross and Red Crescent Movement (Movement) consists of the International
Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies
and 191 National Red Cross and Red Crescent Societies. In accordance with their respective
mandates set out, inter alia, in the Statutes of the Movement, the components of the Movement have
different roles in ensuring respect for international humanitarian law, including by preventing
violations of it, which may also include crimes against humanity. The limits of the Movement’s
engagement in the prevention of international crimes are found in the Fundamental Principles of the
Movement, in particular that of neutrality. Statutes of the International Red Cross and Red Crescent
Movement, adopted by the 25th International Conference of the Red Cross, Geneva, 1986 and
amended in 1995 and 2006, preamble, available at www.icrc.org/en/doc/assets/files/other/statutes-en-
a5.pdf. In accordance with this principle, the components of the Movement do not participate,
contribute or associate themselves with the investigation and prosecution of such crimes as this may
be perceived as supporting one side against another or as engaging in controversies of a political,
racial, religious or ideological nature. See generally www.icrc.org/en/who-we-are/movement.
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Article 5
Non-refoulement
1. No State shall expel, return (refouler), surrender or extradite a person to
another State where there are substantial grounds for believing that he or she would
be in danger of being subjected to a crime against humanity.
Commentary
(1) Consistent with the broad objective of prevention addressed in draft article 4, draft
article 5, paragraph 1, provides that no State shall send a person to another State where
there are substantial grounds for believing that such person would be in danger of being
subjected to a crime against humanity. Thus, this provision uses the principle of non-
refoulement to prevent persons in certain circumstances from being exposed to crimes
against humanity.
(2) As a general matter, the principle of non-refoulement obligates a State not to return
or otherwise transfer a person to another State where there are substantial grounds for
believing that he or she will be in danger of persecution or some other specified harm.
Paragraph 1 refers to such transfer “to another State” rather than “to territory under the
jurisdiction of another State” so as also to encompass situations where the person is
transferred from the control of one State to that of another even if it occurs within the same
territory or occurs outside any territory (such as on or over the high seas). The principle was
incorporated in various treaties during the twentieth century, including the 1949 Fourth
Geneva Convention,250 but is most commonly associated with international refugee law and,
in particular, article 33 of the 1951 Convention relating to the Status of Refugees. 251 Other
conventions and instruments252 addressing refugees have incorporated the principle, such as
the 1969 Organization of African Unity Convention Governing the Specific Aspects of
Refugee Problems in Africa.253
(3) The principle also has been applied with respect to all aliens (not just refugees) in
various instruments 254 and treaties, such as the 1969 American Convention on Human
Rights 255 and the 1981 African Charter on Human and Peoples’ Rights. 256 Indeed, the
250 Geneva Convention IV, art. 45. ICRC interprets common article 3 to the four Geneva Conventions as
implicitly including a non-refoulement obligation. ICRC, Commentary on the First Geneva
Convention, 2016, paras. 708–716 on common article 3.
251 Convention relating to the Status of Refugees (Geneva, 28 July 1951), United Nations, Treaty Series,
vol. 189, No. 2545, p. 137, art. 33, para. 1 (“No Contracting State shall expel or return (‘refouler’) a
refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social group or
political opinion”).
252 See, for example, Cartagena Declaration on Refugees, adopted by the Colloquium on the International
Protection of Refugees in Central America, Mexico and Panama, Cartagena, Colombia, 22 November
1984, conclusion 5.
253 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in
Africa (Addis Ababa, 10 September 1969), United Nations, Treaty Series, vol. 1001, No. 14691, p.
45, art. II, para. 3.
254 See, for example, Declaration on Territorial Asylum, General Assembly resolution 2312 (XXII) of 14
December 1967 (A/6716), art. 3; Final of the 1966 Bangkok Principles on the Status and Treatment of
Refugees, adopted by the Asian-African Legal Consultative Organization at its fortieth session, held
in New Delhi on 24 June 2001, art. III; Council of Europe, recommendation No. R(84)1 of the
Committee of Ministers to member States on the protection of persons satisfying the criteria in the
Geneva Convention who are not formally recognised as refugees, adopted by the Committee of
Ministers on 25 January 1984.
255 American Convention on Human Rights, art. 22, para. 8.
256 African Charter on Human and Peoples’ Rights (“Banjul Charter”), art. 12, para. 3.
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principle was addressed in this broader sense in the Commission’s 2014 draft articles on the
expulsion of aliens.257 The Human Rights Committee and the European Court of Human
Rights have construed the prohibition against torture or cruel, inhuman or degrading
treatment, contained in article 7 of the 1966 International Covenant on Civil and Political
Rights 258 and article 3 of the 1950 Convention for the Protection of Human Rights and
Fundamental Freedoms 259 respectively, as implicitly imposing an obligation of non-
refoulement even though these conventions contain no such express obligation. Further, the
principle of non-refoulement is often reflected in extradition treaties, by stating that nothing
in the treaty shall be interpreted as imposing an obligation to extradite an alleged offender if
the requested State party has substantial grounds for believing the request has been made to
persecute the alleged offender on specified grounds. Draft article 13, paragraph 11, of the
present draft articles is a provision of this type.
(4) Of particular relevance for the present draft articles, the principle has been
incorporated in treaties addressing specific crimes, such as torture and enforced
disappearance. For example, article 3 of the 1984 Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment provides:
1. No State Party shall expel, return (refouler) or extradite a person to another
State where there are substantial grounds for believing that he would be in danger of
being subjected to torture.
gross, flagrant or mass violations of human rights.
(5) This provision was modelled on the 1951 Convention relating to the Status of
Refugees, but added the additional element of “extradition” to cover another possible
means by which a person is physically transferred to another State.260 Similarly, article 16
of the 2006 International Convention for the Protection of All Persons from Enforced
Disappearance provides that:
1. No State Party shall expel, return (“refouler”), surrender or extradite a person
to another State where there are substantial grounds for believing that he or she
would be in danger of being subjected to enforced disappearance.
(6) While, as in earlier conventions, the State’s obligation under draft article 5,
paragraph 1, is focused on avoiding exposure of a person to crimes against humanity, this
obligation is without prejudice to other obligations of non-refoulement arising from treaties
257 Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 10 (A/69/10), para. 44,
art. 23, para. 1, of the draft articles on the expulsion of aliens (“No alien shall be expelled to a State
where his or her life would be threatened on grounds such as race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property, birth or other status, or any other
ground impermissible under international law”).
258 See Human Rights Committee, general comment No. 20 (1992) on the prohibition of torture, or other
cruel, inhuman or degrading treatment or punishment, para. 9, Official Records of the General
Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI, sect. A (“States parties
must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or
punishment upon return to another country by way of their extradition, expulsion or refoulement”).
259 See, for example, Chahal v. United Kingdom, Application No. 22414/93, Judgment of 15 November
1996, Grand Chamber, European Court of Human Rights, ECHR 1996-V, para. 80.
260 A similar provision is included in the Charter of Fundamental Rights of the European Union, adopted
in Nice on 7 December 2000, Official Journal of the European Communities, No. C 364, 18
December 2000, art. 19, para. 2 (“No one may be removed, expelled or extradited to a State where
there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman
or degrading treatment or punishment”).
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or customary international law. Indeed, the obligations of States contained in all relevant
treaties continue to apply in accordance with their terms.
(7) Draft article 5, paragraph 1, provides that the State shall not send the person to
another State “where there are substantial grounds for believing that he or she would be in
danger” of being subjected to a crime against humanity. This “substantial grounds”
standard has been addressed by various expert treaty bodies and by international courts. For
example, the Committee against Torture, in considering communications alleging that a
State has violated article 3 of the 1984 Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, has stated that “substantial grounds” exist
whenever the risk of torture is “foreseeable, personal, present, and real”. 261 It has also
explained that each person’s “case should be examined individually, impartially and
independently by the State party through competent administrative and/or judicial
authorities, in conformity with essential procedural safeguards”.262
(8) In guidance to States, the Human Rights Committee has indicated that a State has an
obligation “not to extradite, deport, expel or otherwise remove a person from their territory,
where there are substantial grounds for believing that there is a real risk of irreparable harm,
such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which
removal is to be effected or in any country to which the person may subsequently be
removed”.263 In interpreting this standard, the Human Rights Committee has concluded that
States must refrain from exposing individuals to a real risk of violations of their rights
under the Covenant, as a “necessary and foreseeable consequence” of expulsion.264 It has
further maintained that the existence of such a real risk must be decided “in the light of the
information that was known, or ought to have been known” to the State party’s authorities
at the time and does not require “proof of actual torture having subsequently occurred
although information as to subsequent events is relevant to the assessment of initial risk”.265
(9) The European Court of Human Rights has found that a State’s obligation is engaged
where there are substantial grounds for believing that an individual would face a real risk of
being subjected to treatment contrary to article 3 of the 1950 Convention for the Protection
of Human Rights and Fundamental Freedoms. 266 In applying this legal test, States must
examine the “foreseeable consequences” of sending an individual to the receiving
261 Committee against Torture, general comment No. 4 (2017) on the implementation of article 3 of the
Convention in the context of article 22 (CAT/C/GC/4), para. 11. For relevant communications, see
Committee against Torture, Dadar v. Canada, communication No. 258/2004, Views adopted on 23
November 2005, Official Records of the General Assembly, Sixty-first Session, Supplement No. 44
(A/61/44), annex VIII, sect. A, p. 241, para. 8.4; N.S. v. Switzerland, communication No. 356/2008,
Views adopted on 6 May 2010, ibid., Sixty-fifth Session, Supplement No. 44 (A/65/44), annex XIII,
sect. A, p. 335, para. 7.3; Subakaran R. Thirugnanasampanthar v. Australia, communication No.
614/2014, Decision adopted on 9 August 2017 (CAT/C/61/D/614/2014), para. 8.3.
262 Committee against Torture, general comment No. 4, para. 13.
263 Human Rights Committee, general comment No. 31, para. 12. See also Human Rights Committee,
general comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political
Rights, on the right to life (CCPR/C/GC/36) [this general comment has not yet been published so
citations and paragraph numbers may be subject to change in the final version], para. 30.
264 See, for example, Human Rights Committee, Chitat Ng v. Canada, communication No. 469/1991,
Views adopted on 5 November 1993, Official Records of the General Assembly, Forty-ninth Session,
Supplement No. 40 (A/49/40), vol. II, annex IX, sect. CC, para. 15.1 (a); A.R.J. v. Australia,
communication No. 692/1996, Views adopted on 28 July 1997, ibid., Fifty-second Session,
Supplement No. 40 (A/52/40), vol. II, annex VI, sect. T, para. 6.14; Hamida v. Canada,
communication No. 1544/2007, Views adopted on 18 March 2010, ibid., Sixty-fifth Session,
Supplement No. 40 (A/65/40), vol. II, annex V, sect. V, para. 8.7.
265 See, for example, Human Rights Committee, Maksudov and others v. Kyrgyzstan, communication
Nos. 1461/2006, 1462/2006, 1476/2006 and 1477/2006, Views adopted on 16 July 2008, Official
Records of the General Assembly, Sixty-third Session, Supplement No. 40 (A/63/40), vol. II, annex V,
sect. W, para. 12.4.
266 See, for example, Soering v. United Kingdom, Application No. 14038/88, Judgment of 7 July 1989,
European Court of Human Rights, Series A, vol. 161, para. 88; Chahal v. United Kingdom (footnote
259 above), para. 74.
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country.267 While a “mere possibility” of ill-treatment is not sufficient, it is not necessary

according to the European Court to show that subjection to ill-treatment is “more likely
than not”.268 The European Court has stressed that the examination of evidence of a real risk
must be “rigorous”.269 Further, and similarly to the Human Rights Committee, the evidence
of the risk “must be assessed primarily with reference to those facts which were known or
ought to have been known to the Contracting State at the time of the expulsion”,270 though
regard can be had to information that comes to light subsequently. 271
(10) Draft article 5, paragraph 2, provides that States shall take into account “all relevant
considerations” when determining whether there are substantial grounds for the purposes of
paragraph 1. Such considerations include, but are not limited to, “the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of
serious violations of international humanitarian law”. Indeed, various considerations may
be relevant. When interpreting the 1966 International Covenant on Civil and Political
Rights, the Human Rights Committee has stated that all relevant factors should be
considered, and that “[t]he existence of assurances, their content and the existence and
implementation of enforcement mechanisms are all elements which are relevant to the
overall determination of whether, in fact, a real risk of proscribed ill-treatment existed”.272
The Committee against Torture has developed, for the purposes of the 1984 Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a
detailed list of “non-exhaustive examples of human rights situations that may constitute an
indication of risk of torture, to which [States parties] should give consideration in their
decisions on the removal of a person from their territory and take into account when
applying the principle of ‘non-refoulement’”.273 When considering whether it is appropriate
for States to rely on assurances made by other States, 274 the European Court of Human
Rights considers such factors as whether the assurances are specific or are general and
vague, 275 whether compliance with the assurances can be objectively verified through
diplomatic or other monitoring mechanisms, 276 and whether there is an effective system of
protection against the violation in the receiving State.277
(11) The 1951 Convention relating to the Status of Refugees contains exceptions to the
non-refoulement obligation to allow return where the person has committed a crime or
267 See, for example, Saadi v. Italy, Application No. 37201/06, Judgment of 28 February 2008, Grand
Chamber, European Court of Human Rights, ECHR 2008-II, para. 130.
268 Ibid., paras. 131 and 140.
269 Ibid., para. 128.
270 Ibid., para. 133.
271 See, for example, El-Masri v. the former Yugoslav Republic of Macedonia, Application No.
39630/09, Judgment of 13 December 2012, Grand Chamber, European Court of Human Rights,
ECHR 2012-VI, para. 214.
272 Maksudov v. Kyrgyzstan (see footnote 265 above), para. 12.4.
274 Ibid., para. 20 (“[T]he Committee considers that diplomatic assurances from a State party to the
Convention to which a person is to be deported should not be used as a loophole to undermine the
principle of non-refoulement as set out in Article 3 of the Convention, where there are substantial
grounds for believing that he/she would be in danger of being subjected to torture in that State”).
275 See, for example, Saadi v. Italy, (footnote 267 above), paras. 147–148.
276 See, for example, Chentiev and Ibragimov v. Slovakia, Application Nos. 21022/08 & 51946/08,
Decision as to admissibility of 14 September 2010, Fourth Section, European Court of Human Rights.
277 See, for example, Soldatenko v. Ukraine, Application No. 2440/07, Judgment of 23 October 2008,
Fifth Section, European Court of Human Rights, para. 73. Other factors that Court might consider
include: whether the terms of assurances are disclosed to the Court; who has given assurances and
whether those assurances can bind the receiving State; if the assurances were issued by the central
government of a State, whether local authorities can be expected to abide by such assurances; whether
the assurances concern treatment which is legal or illegal in the receiving State; the length and
strength of bilateral relations between the sending and receiving States; whether the individual has
been previously ill-treated in the receiving State; and whether the reliability of the assurances has
been examined by the domestic courts of the sending State. Othman (Abu Qatada) v. United
Kingdom, Application No. 8139/09, Judgment of 17 January 2012, Fourth Section, European Court of
Human Rights, ECHR 2012 (extracts), para. 189.
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presented a serious security risk. 278 Treaties since that time, however, have not included
such exceptions, treating the obligation as absolute in nature. 279 The Commission deemed it
appropriate for draft article 5 to contain no such exception.
Article 6
Criminalization under national law
1. Each State shall take the necessary measures to ensure that crimes against
humanity constitute offences under its criminal law.
2. Each State shall take the necessary measures to ensure that the following acts
are offences under its criminal law:
(a) committing a crime against humanity;
(b) attempting to commit such a crime; and
(c) ordering, soliciting, inducing, aiding, abetting or otherwise assisting in
or contributing to the commission or attempted commission of such a crime.
3. Each State shall also take the necessary measures to ensure that commanders
and other superiors are criminally responsible for crimes against humanity
if such crimes had been committed, to punish the persons responsible.
law, the fact that an offence referred to in this draft article was committed pursuant
to an order of a Government or of a superior, whether military or civilian, is not a
ground for excluding criminal responsibility of a subordinate.
law, the fact that an offence referred to in this draft article was committed by a
person holding an official position is not a ground for excluding criminal
responsibility.
law, the offences referred to in this draft article shall not be subject to any statute of
limitations.
law, the offences referred to in this draft article shall be punishable by appropriate
penalties that take into account their grave nature.
8. Subject to the provisions of its national law, each State shall take measures,
where appropriate, to establish the liability of legal persons for the offences referred
to in this draft article. Subject to the legal principles of the State, such liability of
legal persons may be criminal, civil or administrative.
Commentary
(1) Draft article 6 sets forth various measures that each State must take under its
criminal law to ensure that crimes against humanity constitute offences, to preclude certain
defences or any statute of limitation, and to provide for appropriate penalties commensurate
with the grave nature of such crimes. Measures of this kind are essential for the proper
functioning of the subsequent draft articles relating to the establishment and exercise of
jurisdiction over alleged offenders.
278 Convention relating to the Status of Refugees, art. 33, para. 2.

279 See, for example, Maksudov v. Kyrgyzstan (footnote 265 above), para. 12.4; Othman (Abu Qatada) v.
United Kingdom (footnote 277 above), para. 185; Committee against Torture, Tapia Paez v. Sweden,
communication No. 39/1996, Views adopted on 28 April 1997, Official Records of the General
Assembly, Fifty-second Session, Supplement No. 44 (A/52/44), annex V, sect. sect. B.4, para. 14.5;
Abdussamatov et al. v. Kazakhstan, communication No. 444/2010, Views adopted on 1 June 2012,
ibid., Sixty-seventh Session, Supplement No. 44 (A/67/44), annex XIV, sect. A, p. 530, para. 13.7.
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Ensuring that “crimes against humanity” are offences in national criminal law
(2) Draft article 6, paragraph 1, provides that each State “shall take the necessary
measures to ensure that crimes against humanity constitute offences under its criminal law.”
The International Military Tribunal at Nürnberg recognized the importance of punishing
individuals, inter alia, for crimes against humanity when it stated that: “Crimes against
international law are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be
enforced”.280 The Commission’s 1950 Principles of International Law Recognized in the
Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal provided that: “Any
person who commits an act which constitutes a crime under international law is responsible
therefor and liable to punishment”.281 The 1968 Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against Humanity provided in its
preamble that “the effective punishment of … crimes against humanity is an important
element in the prevention of such crimes, the protection of human rights and fundamental
freedoms, the encouragement of confidence, the furtherance of co-operation among peoples
and the promotion of international peace and security”. The preamble to the 1998 Rome
Statute affirms “that the most serious crimes of concern to the international community as a
whole must not go unpunished and that their effective prosecution must be ensured by
taking measures at the national level and by enhancing international cooperation”.
(3) Many States have adopted laws on crimes against humanity that provide for the
prosecution of such crimes in their national system. The 1998 Rome Statute, in particular,
has inspired the enactment or revision of a number of national laws on crimes against
humanity that define such crimes in terms identical to or very similar to the offence as
defined in article 7 of that Statute. At the same time, many States have adopted national
laws that differ, sometimes significantly, from the definition set forth in article 7. Moreover,
still other States have not adopted any national law on crimes against humanity. Those
States typically do have national criminal laws that provide for punishment in some fashion
of many of the individual acts that, under certain circumstances, may constitute crimes
against humanity, such as murder, torture or rape. Yet those States have not criminalized
crimes against humanity as such and this lacuna may preclude prosecution and punishment
of the conduct, including in terms commensurate with the gravity of the offence. 282
(4) The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment provides in article 4, paragraph 1, that: “Each State Party shall
ensure that all acts of torture are offences under its criminal law”.283 The Committee against
Torture has stressed the importance of fulfilling such an obligation so as to avoid possible
discrepancies between the crime as defined in the Convention and the crime as it is
addressed in national law:
Serious discrepancies between the Convention’s definition and that incorporated
into domestic law create actual or potential loopholes for impunity. In some cases,
although similar language may be used, its meaning may be qualified by domestic
law or by judicial interpretation and thus the Committee calls upon each State party
to ensure that all parts of its Government adhere to the definition set forth in the
Convention for the purpose of defining the obligations of the State. 284
280 Judgment of 30 September 1946 (see footnote 92 above), p. 466.

281 Yearbook … 1950, vol. II, document A/1316, Part III, p. 374, para. 97 (principle 1).
282 See Prosecutor v. Simone Gbagbo, Case No. ICC-02/11-01/12 OA, Judgment on the appeal of Côte
d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled “Decision on Côte
d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo”, 27 May 2015, Appeals
Chamber, International Criminal Court, paras. 63–72 (finding that a national prosecution for ordinary
domestic crimes was not based on substantially the same conduct at issue for alleged crimes against
humanity of murder, rape, other inhumane acts and persecution).
283 Convention against Torture. art. 4, para. 1.
284 See Committee against Torture, general comment No. 2 (2007), para. 9. See also Committee against
Torture, Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 44
(A/58/44), chap. III, consideration of reports submitted by States parties under article 19 of the
Convention, Slovenia, para. 115 (a), and Belgium, para. 130.
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(5) To help avoid such loopholes with respect to crimes against humanity, draft article 6,
paragraph 1, provides that each State shall take the necessary measures to ensure that
crimes against humanity, as such, constitute offences under its criminal law. Draft article 6,
paragraphs 2 and 3 (discussed below), then further obligate the State to criminalize certain
ways by which natural persons might engage in such crimes.
(6) Since the term “crimes against humanity” is defined in draft article 2, paragraphs 1
and 2, the obligation set forth in draft article 6, paragraph 1, requires that the crimes so
defined are made offences under the State’s national criminal laws. While there might be
some deviations from the exact language of draft article 2, paragraphs 1 and 2, so as to take
account of terminological or other issues specific to any given State, such deviations should
not result in qualifications or alterations that significantly depart from the meaning of
crimes against humanity as defined in draft article 2, paragraphs 1 and 2. The term “crimes
against humanity” used in draft article 6 (and in other draft articles), however, does not
include the “without prejudice” clause contained in draft article 2, paragraph 3. While that
clause recognizes the possibility of a broader definition of “crimes against humanity” in any
international instrument, in customary international law or in national law, for the purposes
of these draft articles the definition of “crimes against humanity” is limited to draft article 2,
paragraphs 1 and 2.
(7) Like the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, many treaties in the areas of international humanitarian law,
human rights and international criminal law require that a State party ensure that the
prohibited conduct is an “offence” or “punishable” under its national law, though the exact
wording of the obligation varies. 285 Some treaties, such as the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide 286 and the 1949 Geneva
Conventions,287 contain an obligation to enact “legislation”, but the Commission viewed it
appropriate to model draft article 6, paragraph 1, on more recent treaties, such as the 1984
Punishment.
Committing, attempting to commit, assisting in or contributing to a crime against humanity

(8) Draft article 6, paragraph 2, provides that each State shall take the necessary
measures to ensure that certain ways by which natural persons might engage in crimes
against humanity are criminalized under national law, specifically: committing a crime
against humanity; attempting to commit such a crime; and ordering, soliciting, inducing,
aiding, abetting or otherwise assisting in or contributing to the commission or attempted
commission of such a crime.
285 See, for example: Convention against Torture, art. 4; Convention for the Suppression of Unlawful
Seizure of Aircraft (The Hague, 16 December 1970), United Nations, Treaty Series, vol. 860, No.
12325, p. 105, art. 2; Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents, art. 2, para. 2; International Convention against the
Taking of Hostages, art. 2; Inter-American Convention to Prevent and Punish Torture, art. 6;
Convention on the Safety of United Nations and Associated Personnel, art. 9, para. 1; Inter-American
Convention on Forced Disappearance of Persons, art. III; International Convention for the
Suppression of Terrorist Bombings, art. 4; International Convention for the Suppression of the
Financing of Terrorism (New York, 9 December 1999), United Nations, Treaty Series, vol. 2178, No.
38349, p. 197, art. 4; Organization of African Unity (OAU) Convention on the Prevention and
Combating of Terrorism (Algiers, 14 July 1999), ibid., vol. 2219, No. 39464, p. 179, art. 2 (a);
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime, art. 5, para. 1;
International Convention for the Protection of All Persons from Enforced Disappearance, art. 7, para.
1; Association of Southeast Asian Nations Convention on Counter Terrorism (Cebu, 13 January
2007), art. IX, para. 1, in International Instruments related to the Prevention and Suppression of
International Terrorism, United Nations publication, Sales No. E.08.V.2 (New York, 2008), p. 336.
286 Convention on the Prevention and Punishment of the Crime of Genocide, art. V.
287 Geneva Convention I, art. 49; Geneva Convention II, art. 50; Geneva Convention III, art. 129;
Geneva Convention IV, art. 146. See ICRC, Commentary on the First Geneva Convention, 2016,
para. 896 (on common article 3 regarding conflicts not of an international character) and paras. 2838–
2846 (on article 49 regarding penal sanctions). See also Additional Protocol I, arts. 85 and 86, para. 1.
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(9) In the context of crimes against humanity, a survey of both international instruments
and national laws suggests that various types (or modes) of individual criminal
responsibility are addressed. First, all jurisdictions that have criminalized “crimes against
humanity” impose criminal responsibility upon a person who “commits” the offence
(sometimes referred to in national law as “direct” commission, as “perpetration” of the act
or as being a “principal” in the commission of the act). For example, the Nürnberg Charter,
in article 6, provided jurisdiction for the International Military Tribunal over “persons who,
acting in the interests of the European Axis countries, whether as individuals or as members
of organizations, committed any of the following crimes”. Likewise, the Statutes of both
the International Criminal Tribunal for the Former Yugoslavia 288 and the International
Criminal Tribunal for Rwanda289 provided that a person who “committed” crimes against
humanity “shall be individually responsible for the crime”. The 1998 Rome Statute
provides that: “A person who commits a crime within the jurisdiction of the Court shall be
individually responsible and liable for punishment” and “a person shall be criminally
responsible and liable for punishment for a crime within the jurisdiction of the Court if that
person: (a) [c]ommits such a crime, whether as an individual [or] jointly with another”.290
Similarly, the instruments regulating the Special Court for Sierra Leone, 291 the Special
Panels for Serious Crimes in East Timor,292 the Extraordinary Chambers in the Courts of
Cambodia, 293 the Supreme Iraqi Criminal Tribunal 294 and the Extraordinary African
Chambers within the Senegalese Judicial System 295 all provide for the criminal
responsibility of a person who “commits” crimes against humanity. National laws that
address crimes against humanity invariably criminalize the “commission” of such crimes.
Treaties addressing other types of crimes also call upon States parties to adopt national laws
proscribing “commission” of the offence. For example, the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide provides for individual criminal
responsibility for the “commission” of genocide, 296 while the 1949 Geneva Conventions
and Additional Protocol I call upon States parties to enact any legislation necessary to
provide effective penal sanctions for persons “committing” any of the grave breaches of
those treaties. 297 In light of the above, paragraph 2 (a) requires each State to take the
necessary measures to ensure the act of “committing a crime against humanity” is an
offence under its criminal law.
(10) Second, almost all such national or international jurisdictions, to one degree or
another, also impose criminal responsibility upon a person who participates in the offence
in the form of an “attempt” to commit the offence. The Statutes of the International
Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for
Rwanda and the Special Court for Sierra Leone contained no provision for such
288 Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7, para. 1.
289 Statute of the International Criminal Tribunal for Rwanda, art. 6, para. 1.
290 See Rome Statute, art. 25, paras. 2 and 3 (a).
291 Statute of the Special Court for Sierra Leone, art. 6.
292 United Nations Transitional Administration in East Timor, Regulation No. 2000/15 on the
establishment of panels with exclusive jurisdiction over serious criminal offences
(UNTAET/REG/2000/15), sect. 14.3 (a) (2000) (hereinafter “East Timor Tribunal Charter”).
293 Extraordinary Chambers of Cambodia Law, art. 29. See also Agreement between the United Nations
and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of
Crimes Committed during the Period of Democratic Kampuchea (Phnom Penh, 6 June 2003), United
Nations, Treaty Series, vol. 2329, No. 41723, p. 117.
294 Statute of the Iraqi Special Tribunal, International Legal Materials, vol. 43 (2004), p. 231, art. 15
(2004) (hereinafter, “Supreme Iraqi Criminal Tribunal Statute”). The Iraqi Interim Government
enacted a new statute in 2005, built upon the earlier statute, which changed the tribunal’s name to
“Supreme Iraqi Criminal Tribunal”. See Law of the Supreme Iraqi Criminal Tribunal, Law No. 10,
Official Gazette of the Republic of Iraq, vol. 47, No. 4006 (18 October 2005).
295 Statute of the Extraordinary African Chambers within the Courts of Senegal Created to Prosecute
International Crimes Committed in Chad between 7 June 1982 and 1 December 1990, International
Law Materials, vol. 52 (2013), p. 1028, arts. 4 (b), 6 and 10.2 (hereinafter “Extraordinary African
Chambers Statute”).
296 Convention on the Prevention and Punishment of the Crime of Genocide, arts. III (a) and IV.
Geneva Convention IV, art. 146. See also Additional Protocol I, arts. 11 and 85.
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responsibility. In contrast, the 1998 Rome Statute provides for the criminal responsibility of
a person who attempts to commit the crime, unless he or she abandons the effort or
otherwise prevents completion of the crime. 298 In the Banda and Jerbo case, a pre-trial
chamber asserted that criminal responsibility for attempt “requires that, in the ordinary
course of events, the perpetrator’s conduct [would] have resulted in the crime being
completed, had circumstances outside the perpetrator’s control not intervened”.299 With this
in mind, paragraph 2 (b) requires each State to take the necessary measures to ensure the act
of “attempting to commit” a crime against humanity is an offence under its criminal law.
(11) Third, all such national or international jurisdictions, to one degree or another, also
impose criminal responsibility upon a person who participates in the offence in the form of
“accessorial” responsibility. Such a concept is addressed in international instruments
through various terms, such as “ordering”, “soliciting”, “inducing”, “instigating”, “inciting”,
“aiding and abetting”, “conspiracy to commit”, “being an accomplice to”, “participating in”,
“planning”, or “joint criminal enterprise”. Thus, the Statute of the International Criminal
Tribunal for the Former Yugoslavia provides: “A person who planned, instigated, ordered,
committed or otherwise aided and abetted in the planning, preparation or execution of a
crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible
for the crime”. 300 The Statute of the International Criminal Tribunal for Rwanda used
virtually identical language.301 Both tribunals have convicted defendants for participation in
such offences within their respective jurisdictions. 302 Similarly, the instruments regulating
the Special Court for Sierra Leone, 303 the Special Panels for Serious Crimes in East
Timor, 304 the Extraordinary Chambers in the Courts of Cambodia, 305 the Supreme Iraqi
Criminal Tribunal 306 and the Extraordinary African Chambers within the Senegalese
Judicial System307 all provided for the criminal responsibility of a person who, in one form
or another, participates in the commission of crimes against humanity.
(12) The 1998 Rome Statute provides for criminal responsibility if the person commits
“such a crime … through another person”, if the person “[o]rders, solicits or induces the
commission of the crime which in fact occurs or is attempted”, if the person “for the
purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its
commission or its attempted commission, including providing the means for its commission”
or if the person “in any other way contributes to the commission or attempted commission
of such a crime by a group of persons acting with common purpose”, subject to certain
conditions. 308 So as to allow national legal systems to approach such accessorial
responsibility in a manner consistent with their criminal laws, the Commission decided to
use a streamlined version of the various terms set forth in the 1998 Rome Statute as the
basis for the terms used in draft article 6, subparagraph 2 (c).
(13) The Commission considered whether to refer expressly to “conspiracy” or
“incitement” in draft article 6, paragraph 2. The 1948 Convention on the Prevention and
298 Rome Statute, art. 25, para. 3 (f).

299 Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC-
02/05-03/09, Corrigendum of the “Decision on the confirmation of charges”, 7 March 2011, Pre-Trial
Chamber I, International Criminal Court, para. 96.
300 Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7, para. 1. Various
decisions of the Tribunal have analysed such criminal responsibility. See, for example, Tadić,
Judgment, 15 July 1999 (footnote 152 above) (finding that “the notion of common design as a form of
accomplice liability is firmly established in customary international law”).
302 See, for example, Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgment, 10 December
1998, Trial Chamber II, International Criminal Tribunal for the Former Yugoslavia, Judicial Reports
1998, para. 246 (finding that “[i]f [the defendant] is aware that one of a number of crimes will
probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the
commission of that crime, and is guilty as an aider and abettor”).
303 Statute of the Special Court for Sierra Leone, art. 6, para. 1.
304 East Timor Tribunal Charter, sect. 14.
305 Extraordinary Chambers of Cambodia Law, art. 29.
306 Supreme Iraqi Criminal Tribunal Statute, art. 15.
307 Extraordinary African Chambers Statute, art. 10.2.
308 Rome Statute, art. 25, para. 3 (a)–(d).
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Punishment of the Crime of Genocide addresses not just the commission of genocide, but
also “[c]onspiracy to commit genocide” and “[d]irect and public incitement to commit
genocide”.309 The 1968 Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes against Humanity broadly provides that: “If any of the crimes
mentioned in article I is committed, the provisions of this Convention shall apply to
representatives of the State authority and private individuals who, as principals or
accomplices, participate in or who directly incite others to the commission of any of those
crimes, or who conspire to commit them, irrespective of the degree of completion, and to
representatives of the State authority who tolerate their commission”.310 The Commission
referred expressly to “incitement” and “conspiracy” in its 1996 draft Code of Crimes
against the Peace and Security of Mankind, but only included them in circumstances where
“the crime … in fact occurr[ed]”.311 The Rome Statute does not refer to either “conspiracy”
or “incitement” with respect to crimes against humanity, an approach which the
Commission has elected to follow for the present draft articles. The Rome Statute does
refer to direct and public incitement to commit genocide, 312 but the negotiating history
indicates that States consciously chose not to include in the Rome Statute direct and public
incitement to commit crimes against humanity. 313 Paragraph 2 does not cover the concept of
incitement as an inchoate or incomplete offence (i.e., an offence that can occur even if the
crime is not consummated, such as “attempt” in subparagraph 2 (b)). At the same time, the
various terms found in paragraph 2 (c) do encompass the concept of incitement to a crime
against humanity when the crime in fact occurs.
(14) The concept in these various instruments of “ordering” the crime differs from (and
complements) the concept of “command” or other superior responsibility. Here, “ordering”
concerns the criminal responsibility of the superior for affirmatively instructing that action
be committed that constitutes an offence. In contrast, command or other superior
responsibility concerns the criminal responsibility of the superior for a failure to act;
specifically, in situations where the superior knew or had reason to know that subordinates
were about to commit such acts or had done so, and the superior failed to take necessary
and reasonable measures in their power to prevent such acts or to punish the perpetrators.
(15) As a general matter, treaties addressing the establishment and exercise of national
jurisdiction over crimes other than crimes against humanity typically call for criminal
responsibility of persons using broad terminology, so as not to require States to alter the
preferred terminology or modalities that are well settled in national criminal law. In other
words, such treaties use general terms rather than detailed language, allowing States to spell
out the precise contours of the criminal responsibility through existing national statutes,
jurisprudence and legal tradition. For example, the 2006 International Convention for the
Protection of All Persons from Enforced Disappearance broadly provides: “Each State
Party shall take the necessary measures to hold criminally responsible at least … [a]ny
309 Convention on the Prevention and Punishment of the Crime of Genocide, art. III (b)–(c).
Humanity, art. 2.
311 See the Commission’s 1996 draft Code of Crimes against the Peace and Security of Mankind,
Yearbook … 1996, vol. II (Part Two), p. 18, para. 50, at art. 2, para. 3 (e) (an individual is responsible
if that person “[d]irectly participates in planning or conspiring to commit such a crime which in fact
occurs”); ibid., art. 2, para. 3 (f) (an individual is responsible if that person “[d]irectly and publicly
incites another individual to commit such a crime which in fact occurs”).
312 See Rome Statute, art. 25, para. 3 (e) (in conjunction with article 6). Similarly, the constituent
instruments for the International Criminal Tribunal for the Former Yugoslavia (Statute, art. 4), the
International Criminal Tribunal for Rwanda (Statute, art. 2), and the Panels with Exclusive
Jurisdiction over Serious Criminal Offences for East Timor (East Timor Tribunal Charter, sect. 14
(e)) provided for the crime of direct and public incitement to commit genocide, but only inducement
or instigation of crimes against humanity.
313 See Report of the Preparatory Committee on the Establishment of an International Criminal Court,
draft statute and draft final act, A/CONF.183/2/Add.1, p. 50. See also W.K. Timmermann,
“Incitement in international criminal law”, International Review of the Red Cross, vol. 88 (December
2006), p. 843 (“During the Diplomatic Conference in Rome the drafters rejected the suggestion that
the incitement provision be extended to apply also to crimes against humanity, war crimes and
aggression”).
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person who commits, orders, solicits or induces the commission of, attempts to commit, is
an accomplice to or participates in an enforced disappearance”.314 The language of draft
article 6, paragraph 2, takes a similar approach.
Command or other superior responsibility

(16) Draft article 6, paragraph 3, addresses the issue of command or other superior
responsibility. In general, this paragraph provides that superiors are criminally responsible
for crimes against humanity committed by subordinates, in circumstances where the
superior has failed to take measures with respect to the subordinates’ conduct.
(17) International jurisdictions that have addressed crimes against humanity impute
criminal responsibility to a military commander or other superior for an offence committed
by subordinates in certain circumstances. 315 Notably, the Nürnberg and Tokyo tribunals
used command responsibility with respect to both military and civilian commanders, an
approach that influenced later tribunals. 316 As indicated by a trial chamber of the
International Criminal Tribunal for Rwanda in Prosecutor v. Alfred Musema: “As to
whether the form of individual criminal responsibility referred to under Article 6(3) of the
[International Criminal Tribunal for Rwanda] Statute also applies to persons in both
military and civilian authority, it is important to note that during the Tokyo Trials, civilian
authorities were convicted of war crimes under this principle”.317
(18) Article 86, paragraph 2, of Additional Protocol I to the 1949 Geneva Conventions
contains a general provision addressing command/superior responsibility:
The fact that a breach of the Conventions or of this Protocol was committed by a
subordinate does not absolve his superiors from penal or disciplinary responsibility,
as the case may be, if they knew, or had information which should have enabled
them to conclude in the circumstances at the time, that he was committing or was
going to commit such a breach and if they did not take all feasible measures within
their power to prevent or repress the breach.318
(19) The Statute of the International Criminal Tribunal for the Former Yugoslavia
followed this general approach. It provides that:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was
committed by a subordinate does not relieve his superior of criminal responsibility if
he knew or had reason to know that the subordinate was about to commit such acts
or had done so and the superior failed to take the necessary and reasonable measures
to prevent such acts or to punish the perpetrators thereof. 319
314 International Convention for the Protection of All Persons from Enforced Disappearance, art. 6, para.
1 (a).
315 See, for example, United States of America v. Wilhelm von Leeb, et al. (“The High Command Case”),
in Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 11 (Washington D.C.,
United States Government Printing Office, 1950), pp. 543–544.
316 See ibid.; International Criminal Law: International Enforcement, M.C. Bassiouni, ed., vol. III, 3rd
ed. (Leiden, Martinus Nijhoff, 2008), p. 461; K.J. Heller, The Nurenberg Military Tribunals and the
Origins of International Criminal Law (Oxford, Oxford University Press, 2011), pp. 262–263.
317 See Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Judgment and sentence, 27 January
2000, Trial Chamber I, International Criminal Tribunal for Rwanda, para. 132.
318 Protocol I, art. 86, para. 2. See ICRC, Commentary on the First Geneva Convention, 2016, para. 2855
(on article 49) (“Commanders and other superiors can be held criminally responsible for grave
breaches and other serious violations of humanitarian law committed pursuant to their orders. They
can also be held individually responsible for failing to take proper measures to prevent their
subordinates from committing such violations, or, if already committed, for failing to punish the
persons responsible. It is essential for national law to provide for the effective sanctioning of
commanders or superiors, if the system of repression is to be effective during armed conflict”). Such a
standard also exists in other treaties addressing crimes. See, for example, International Convention for
the Protection of All Persons from Enforced Disappearance, art. 6, para. 1 (b).
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Several defendants were convicted by the Tribunal on such a basis. 320 The same language
appears in the Statute of the International Criminal Tribunal for Rwanda, 321 which also
convicted several defendants on such a basis.322 Similar language appears in the instruments
regulating the Special Court for Sierra Leone,323 the Special Tribunal for Lebanon,324 the
Special Panels for Serious Crimes in East Timor, 325 the Extraordinary Chambers in the
Courts of Cambodia, 326 the Supreme Iraqi Criminal Tribunal 327 and the Extraordinary
African Chambers within the Senegalese Judicial System. 328
(20) Article 28 of the 1998 Rome Statute contains a more detailed standard by which
criminal responsibility applies to a military commander or person effectively acting as a
military commander with regard to the acts of others. 329 As a general matter, criminal
responsibility arises when: (a) there is a relationship of subordination; (b) the commander
knew or should have known that his or her subordinates were committing or about to
commit the offence; and (c) the commander failed to take all necessary and reasonable
measures within his or her power to prevent or repress their commission or to submit the
matter for investigation and prosecution. 330 Article 28 also addresses the issue of other
“superior and subordinate relationships” arising in a non-military or civilian context. 331
Such superiors include civilians that “lead” but are not “embedded” in military activities.
(21) National laws and military manuals also often contain this type of criminal
responsibility for war crimes, and sometimes for genocide and crimes against humanity,
under the influence of both treaty obligations and calls by relevant international bodies. 332
Based on a detailed analysis of State practice, as well as of international and national
jurisprudence, the 2005 ICRC study on Customary International Humanitarian Law
formulated a general standard for war crimes as follows:
320 See, for example, Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgment, 25 June 1999,
Trial Chamber, International Criminal Tribunal for the Former Yugoslavia, Judicial Supplement No.
6, June/July 1999, paras. 66–81 and 90-118; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T,
Judgment, 16 November 1998, Trial Chamber, International Criminal Tribunal for the Former
Yugoslavia, paras. 330–400 and 605–775.
322 See, for example, Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, Judgment and sentence, 4
September 1998, Trial Chamber, International Criminal Tribunal for Rwanda, para. 40.
324 Statute of the Special Tribunal for Lebanon, Security Council resolution 1757 (2007) of 30 May 2007
(annex and attachment included), art. 3, para. 2.
327 Supreme Iraqi Criminal Tribunal Statute, art. 15 (d).
328 Extraordinary African Chambers Statute, art. 10, para. 4.
329 Rome Statute, art. 28 (a). See, for example, Kordić, Judgment, 26 February 2001 (footnote 81 above),
para. 369.
330 An Appeals Chamber of the International Criminal Court applied this standard in 2018 when
reversing Trial Chamber III’s 2016 conviction of Jean-Pierre Bemba Gombo of crimes against
humanity and war crimes. The Trial Chamber had found that Mr. Bemba was a person effectively
acting as a military commander who knew that the Mouvement de Libération du Congo (MLC) forces
under his effective authority and control were committing or about to commit the crimes charged.
Bemba, Judgment, 21 March 2016 (see footnote 44 above), paras. 697 and 700. Yet the Appeals
Chamber concluded that the Trial Chamber had made serious errors in its finding that Mr. Bemba had
failed to take all necessary and reasonable measures to prevent or repress the commission of crimes of
the MLC forces during military operations in 2002 and 2003 in the Central African Republic.
Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Judgment on the appeal of Mr.
Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the
Statute”, 8 June 2018, Appeals Chamber, International Criminal Court, paras. 170–173 and 189–194.
331 Rome Statute, art. 28 (b).
332 See Commission on Human Rights report on the sixty-first session, Official Records of the Economic
and Social Council, 2005, Supplement No. 3 (E/2005/23-E/CN.4/2005/135), resolution 2005/81 on
impunity of 21 April 2005, para. 6 (urging “all States to ensure that all military commanders and
other superiors are aware of the circumstances in which they may be criminally responsible under
international law for … crimes against humanity … including, under certain circumstances, for these
crimes when committed by subordinates under their effective authority and control”).
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Commanders and other superiors are criminally responsible for war crimes
if such crimes had been committed, to punish the persons responsible. 333
(22) Draft article 6, paragraph 3, uses similar language to express a general standard for
addressing command/superior responsibility in the context of crimes against humanity.
While a more detailed standard might be used, draft article 6 as a whole generally seeks not
to be overly prescriptive, allowing States instead to implement their international
obligations in a manner that takes account of existing national laws, practice and
jurisprudence. Doing so for paragraph 3 does not, however, foreclose any State from
adopting a more detailed standard in its national law, such as appears in article 28 of the
Rome Statute, should it wish to do so.
Superior orders
measures to ensure that the fact that an offence referred to in the article was committed
pursuant to an order of a Government or of a superior, whether military or civilian, is not a
ground for excluding the criminal responsibility of a subordinate.
(24) All jurisdictions that address crimes against humanity provide grounds for excluding
substantive criminal responsibility to one degree or another. For example, most
jurisdictions preclude criminal responsibility if the alleged perpetrator suffered from a
mental disease that prevented the person from appreciating the unlawfulness of his or her
conduct. Some jurisdictions provide that a state of intoxication also precludes criminal
responsibility, at least in some circumstances. The fact that the person acted in self-defence
may also preclude responsibility, as may duress resulting from a threat of imminent harm or
death. In some instances, the person must have achieved a certain age to be criminally
responsible. The exact grounds vary by jurisdiction and, with respect to national systems,
are usually embedded in that jurisdiction’s approach to criminal responsibility generally,
not just in the context of crimes against humanity.
(25) At the same time, most jurisdictions that address crimes against humanity provide
that perpetrators of such crimes cannot invoke as a defence to criminal responsibility that
they were ordered by a superior to commit the offence. 334 Article 8 of the Nürnberg Charter
provides: “The fact that the Defendant acted pursuant to order of his Government or of a
superior shall not free him from responsibility, but may be considered in mitigation of
punishment if the Tribunal determines that justice so requires”. Consistent with article 8,
the International Military Tribunal found that the fact that “a soldier was ordered to kill or
torture in violation of the international law of war has never been recognized as a defence
to such acts of brutality”. 335 Likewise, article 6 of the Charter of the Tokyo Tribunal
provided: “Neither the official position, at any time, of an accused, nor the fact that an
accused acted pursuant to order of his government or of a superior shall, of itself, be
sufficient to free such accused from responsibility for any crime with which he is charged,
but such circumstances may be considered in mitigation of punishment if the Tribunal
determines that justice so requires”.336
(26) While article 33 of the 1998 Rome Statute allows for a limited superior orders
defence, it does so exclusively with respect to war crimes; orders to commit acts of
genocide or crimes against humanity do not fall within the scope of the defence. 337 The
333 J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, vol. 1: Rules,
Cambridge University Press, 2005, pp. 558–563 (Rule 153).
334 See Commission on Human Rights, resolution 2005/81 on impunity, para. 6 (urging all States “to
ensure that all relevant personnel are informed of the limitations that international law places on the
defence of superior orders”).
335 Judgment of 30 September (see footnote 92 above), p. 466.
336 Tokyo Charter, art. 6.
337 Rome Statute, art. 33 (the defence is not available if the order was manifestly unlawful and, “[f]or
purposes of this article, orders to commit genocide or crimes against humanity are manifestly
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instruments regulating the International Criminal Tribunal for the Former Yugoslavia, 338 the
International Criminal Tribunal for Rwanda, 339 the Special Court for Sierra Leone, 340 the
Special Tribunal for Lebanon, 341 the Special Panels for Serious Crimes in East Timor, 342 the
Extraordinary Chambers in the Courts of Cambodia, 343 the Supreme Iraqi Criminal
Tribunal 344 and the Extraordinary African Chambers within the Senegalese Judicial
System345 all similarly exclude superior orders as a defence for crimes against humanity.
While superior orders are not permitted as a defence to prosecution for an offence, some of
the international and national jurisdictions mentioned above allow orders from a superior to
serve as a mitigating factor at the sentencing stage.346
(27) Such exclusion of superior orders as a defence exists in a range of treaties
addressing crimes, such as: the 1984 Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment; 347 the 1985 Inter-American Convention to Prevent
and Punish Torture;348 the 1994 Inter-American Convention on Forced Disappearance of
Persons;349 and the 2006 International Convention for the Protection of All Persons from
Enforced Disappearance. 350 In the context of the 1984 Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, the Committee against
Torture has criticized national legislation that permits such a defence or is ambiguous on
the issue.351 In some instances, the problem arises from the presence in a State’s national
law of what is referred to as a “due obedience” defence.352
unlawful”). On availability of the defence with respect to war crimes, see ICRC, Commentary on the
First Geneva Convention, 2016, para. 2856 (on article 49) (“[I]t is widely accepted that obeying a
superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that
the act ordered was unlawful or should have known because of the manifestly unlawful nature of the
act. A corollary of this rule is that every combatant has a duty to disobey a manifestly unlawful order.
The fact that a war crime was committed as a result of superior orders has nevertheless been taken
into account as a factor mitigating the punishment”).
341 Statute of the Special Tribunal for Lebanon, art. 3, para. 3.
344 Supreme Iraqi Criminal Tribunal Statute, art. 15 (e).
345 Extraordinary African Chambers Statute, art. 10, para. 5.
346 See, for example, Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7,
para. 4; Statute of the International Criminal Tribunal for Rwanda, art. 6, para. 4; Statute of the
Special Court for Sierra Leone, art. 6, para. 4; East Timor Tribunal Charter, sect. 21. See in particular
Prosecutor v. Darko Mrða, Case No. IT-02-59-S, Sentencing Judgment, 31 March 2004, Trial
Chamber, International Criminal Tribunal for the Former Yugoslavia, paras. 65 and 67.
347 Convention against Torture, art. 2, para. 3 (“An order from a superior officer or a public authority
may not be invoked as a justification of torture”).
348 Inter-American Convention to Prevent and Punish Torture, art. 4 (“The fact of having acted under
orders of a superior shall not provide exemption from the corresponding criminal liability”).
349 Inter-American Convention on Forced Disappearance of Persons, art. VIII (“The defense of due
obedience to superior orders or instructions that stipulate, authorize, or encourage forced
disappearance shall not be admitted. All persons who receive such orders have the right and duty not
to obey them”).
2 (“No order or instruction from any public authority, civilian, military or other, may be invoked to
justify an offence of enforced disappearance”). This provision “received broad approval” at the
drafting stage. See Commission on Human Rights, report of the intersessional open-ended working
group to elaborate a draft legally binding normative instrument for the protection of all persons from
enforced disappearance (E/CN.4/2004/59), para. 72. See also the Declaration on the Protection of All
Persons from Enforced Disappearance, General Assembly resolution 47/133 of 18 December 1992,
art. 6.
351 Report of the Committee against Torture, Official Records of the General Assembly, Sixty-first
Session, Supplement No. 44 (A/61/44), chap. III, consideration of reports by States parties under
article 19 of the Convention, Guatemala, para. 32 (13).
352 See, for example, report of the Committee against Torture, Official Records of the General Assembly,
Fifty-ninth Session, Supplement No. 44 (A/59/44), chap. III, consideration of reports by States parties
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Official position
(28) Draft article 6, paragraph 5, provides that the fact that the offence was committed
“by a person holding an official position” does not exclude substantive criminal
responsibility. The inability to assert the existence of an official position as a substantive
defence to criminal responsibility before international criminal courts and tribunals is a
well-established principle of international law. The Nürnberg Charter provided: “The
official position of defendants, whether as Heads of State or responsible officials in
Government Departments, shall not be considered as freeing them from responsibility or
mitigating punishment”. 353 The Commission’s 1950 Principles of International Law
recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal
provided: “The fact that a person who committed an act which constitutes a crime under
international law [i.e., crimes against humanity, crimes against peace, and war crimes]
acted as Head of State or responsible Government official does not relieve him from
responsibility under international law”. 354 The Tokyo Charter provided: “Neither the
official position, at any time, of an accused, nor the fact that an accused acted pursuant to
order of his government or of a superior shall, of itself, be sufficient to free such accused
from responsibility for any crime with which he is charged, but such circumstances may be
considered in mitigation of punishment if the Tribunal determines that justice so
requires”.355
(29) The Commission’s 1954 draft Code of Offences against the Peace and Security of
Mankind provided: “The fact that a person acted as Head of State or as responsible
government official does not relieve him of responsibility for committing any of the
offences defined in this Code”.356 The Commission’s 1996 draft Code of Crimes against the
Peace and Security of Mankind provided: “The official position of an individual who
commits a crime against the peace and security of mankind, even if he acted as head of
State or Government, does not relieve him of criminal responsibility or mitigate
punishment”.357 The 1998 Rome Statute provides: “This Statute shall apply equally to all
persons without any distinction based on official capacity. In particular, official capacity as
a Head of State or Government, a member of a Government or parliament, an elected
representative or a government official shall in no case exempt a person from criminal
responsibility under this Statute, nor shall it, in and of itself, constitute a ground for
reduction of sentence”.358
(30) The inability to use official position as a substantive defence to criminal
responsibility is also addressed in some treaties relating to national criminal jurisdiction.
For example, the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide, provides that individuals “shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals”.359 The 1973 Convention on the
Suppression and Punishment of the Crime of Apartheid provides that “[i]nternational
criminal responsibility shall apply … to … representatives of the State, whether residing in
the territory of the State in which the acts are perpetrated or in some other State”.360
under article 19 of the Convention, Chile, para. 56 (i). See also, ibid., Sixtieth Session, Supplement
No. 44 (A/60/44), chap. III, consideration of reports by States parties under article 19 of the
Convention, Argentina, para. 31 (a) (praising Argentina for declaring its due obedience act
“absolutely null and void”).
353 Nürnberg Charter, art. 7.
354 Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the
Judgment of the Tribunal, and commentaries thereto, Yearbook … 1950, vol. II, document A/1316
Part III, p. 375, principle III. Although principle III is based on article 7 of the Nürnberg Charter, the
Commission omitted the phrase “or mitigating punishment”, because it viewed mitigation as an issue
“for the competent Court to decide” (ibid., para. 104).
355 Tokyo Charter, art. 6.
356 Yearbook … 1954, vol. II, p. 152, para. 54, art. 3.
357 Yearbook … 1996, vol. II (Part Two), chap. II, sect. D, p. 26, art. 7.
358 Rome Statute, art. 27, para. 1.
359 Convention on the Prevention and Punishment of the Crime of Genocide, art. IV.
360 International Convention on the Suppression and Punishment of the Crime of Apartheid, art. III.
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(31) In light of such precedents, the Commission deemed it appropriate to include

paragraph 5, which provides that each “State shall take the necessary measures to ensure
that, under its criminal law, the fact that an offence referred to in this draft article was
committed by a person holding an official position is not a ground for excluding criminal
responsibility”. For the purposes of the present draft articles, paragraph 5 means that an
alleged offender cannot raise the fact of his or her official position as a substantive defence
so as to negate any criminal responsibility. By contrast, paragraph 5 has no effect on any
procedural immunity that a foreign State official may enjoy before a national criminal
jurisdiction, which continues to be governed by conventional and customary international
law.361 Further, paragraph 5 is without prejudice to the Commission’s work on the topic
“Immunity of State officials from foreign criminal jurisdiction”.
(32) The Commission did not find it necessary to include language in paragraph 5
specifying that one’s official position cannot be raised as a ground for mitigation or
reduction of sentence, because the issue of punishment is addressed in draft article 6,
paragraph 7. According to that paragraph, States are required, in all circumstances, to
ensure that crimes against humanity be punishable by appropriate penalties that take into
account their grave nature. Such language should be understood as precluding the invoking
of official position as a ground for mitigation or reduction of sentence.
Statutes of limitations
(33) One possible restriction on the prosecution of a person for crimes against humanity
in national law concerns the application of a “statute of limitations” (or “period of
prescription”), meaning a rule that forbids prosecution of an alleged offender for a crime
that was committed more than a specified number of years prior to the initiation of the
prosecution. Draft article 6, paragraph 6, provides that each State shall take the necessary
measures to ensure that the offences referred to in the draft article shall not be subject to
any statute of limitations. This provision does not obligate a State to prosecute offences
referred to in the draft article that took place before such offences have been criminalized in
the State’s national law. Further, as noted in the commentary with respect to draft article 1,
if the present draft articles ultimately serve as the basis for a convention, the obligations of
a State party under that convention, unless a different intention appears, would only operate
with respect to acts or facts that took place, or any situation that existed, after the
convention enters into force for that State.
(34) No rule on statute of limitations with respect to international crimes, including
crimes against humanity, was established in the Nürnberg or Tokyo Charters, or in the
constituent instruments of the International Criminal Tribunal for the Former Yugoslavia,
the International Criminal Tribunal for Rwanda or the Special Court for Sierra Leone. In
contrast, Control Council Law No. 10, adopted in December 1945 by the Allied Control
Council for Germany to ensure the continued prosecution of alleged offenders, provided
that in any trial or prosecution for crimes against humanity (as well as war crimes and
crimes against the peace) “the accused shall not be entitled to the benefits of any statute of
limitation in respect to the period from 30 January 1933 to 1 July 1945”.362 Likewise, the
Rome Statute expressly addresses the matter, providing that: “The crimes within the
jurisdiction of the Court shall not be subject to any statute of limitations”.363 The drafters of
the Statute strongly supported this provision as applied to crimes against humanity. 364
Similarly, the Law on the Establishment of Extraordinary Chambers in Cambodia, the
Statute of the Supreme Iraqi Criminal Tribunal and the East Timor Tribunal Charter all
361 See, for example, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
Judgment, I.C.J. Reports 2002, p.3, at p. 25, para. 60 (“Immunity from criminal jurisdiction and
individual criminal responsibility are quite separate concepts. While jurisdictional immunity is
procedural in nature, criminal responsibility is a question of substantive law”).
362 Control Council Law No. 10 on Punishment of Persons Guilty of War Crimes, Crimes Against Peace
and Against Humanity, art. II, para. 5.
363 Rome Statute, art. 29.
364 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court, Rome, 15 June–17 July 1998, Official Records, vol. II, 2nd meeting
(A/CONF.183/13), p. 138, paras. 45–74.
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explicitly defined crimes against humanity as offences for which there is no statute of
limitations.365
(35) With respect to whether a statute of limitations may apply to the prosecution of an
alleged offender in national courts, in 1967 the General Assembly noted that “the
application to war crimes and crimes against humanity of the rule of municipal law relating
to the period of limitation for ordinary crimes is a serious concern to world public opinion,
since it prevents the prosecution and punishment of persons responsible for those
crimes”. 366 The following year, States adopted the 1968 Convention on the Non-
Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, which
requires States parties to adopt “any legislative or other measures necessary to ensure that
statutory or other limitations shall not apply to the prosecution and punishment” of these
two types of crimes. 367 Similarly, in 1974, the Council of Europe adopted the European
Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity
and War Crimes, which uses substantially the same language. 368 At present, there appears to
be no State with a law on crimes against humanity that also bars prosecution after a period
of time has elapsed. Rather, numerous States have specifically legislated against any such
limitation.
(36) Many treaties addressing crimes in national law other than crimes against humanity
have not contained a prohibition on a statute of limitations. For example, the 1984
Punishment contains no prohibition on the application of a statute of limitations to torture-
related offences. Even so, the Committee against Torture has stated that, taking into
account their grave nature, such offences should not be subject to any statute of
limitations. 369 Similarly, while the 1966 International Covenant on Civil and Political
Rights370 does not directly address the issue, the Human Rights Committee has called for
the abolition of statutes of limitations in relation to serious violations of the Covenant. 371
The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances requires a long statutory period,372 as do the United Nations Convention against
Transnational Organized Crime373 and the United Nations Convention against Corruption. 374
365 Extraordinary Chambers of Cambodia Law, art. 5; Supreme Iraqi Criminal Tribunal Statute, art. 17
(d); East Timor Tribunal Charter, sect. 17.1. See also report of the Third Committee (A/57/806), para.
10 (Khmer Rouge trials) and General Assembly resolution 57/228 B of 13 May 2003. Further, it
should be noted that the Extraordinary Chambers in the Courts of Cambodia were provided
jurisdiction over crimes against humanity committed decades prior to its establishment, between 1975
and 1979, when the Khmer Rouge held power.
366 General Assembly resolution 2338 (XXII) of 18 December 1967, entitled “Question of the
punishment of war criminals and of persons who have committed crimes against humanity”,
preamble. See also General Assembly resolution 2712 (XXV) of 15 December 1970; General
Assembly resolution 2840 (XXVI) of 18 December 1971.
Humanity, art. IV.
368 European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity
and War Crimes, art. 1.
369 See, for example, report of the Committee against Torture, Official Records of the General Assembly,
Sixty-second Session, Supplement No. 44 (A/62/44), chap. III, consideration of reports by States
parties under article 19 of the Convention, Italy, para. 40 (19).
370 International Covenant on Civil and Political Rights, p. 171.
371 See, for example, report of the Human Rights Committee, Official Records of the General Assembly,
Sixty-third Session, Supplement No. 40 (A/63/40), vol. I, chap. IV, consideration of reports submitted
by States parties under article 40 of the Covenant and of country situations in the absence of a report
resulting in public concluding observations, Panama (sect. A, para. 79), para. (7).
372 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(Vienna, 20 December 1988), United Nations, Treaty Series, vol. 1582, No. 27627, p. 95, art. 3, para.
8 (“Each Party shall, where appropriate, establish under its domestic law a long statute of limitations
period in which to commence proceedings for any offence established in accordance with paragraph 1
of this article, and a longer period where the alleged offender has evaded the administration of
justice”).
373 United Nations Convention against Transnational Organized Crime, art. 11, para. 5 (“Each State Party
shall, where appropriate, establish under its domestic law a long statute of limitations period in which
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The 2006 International Convention for the Protection of All Persons from Enforced
Disappearance provides: “A State Party which applies a statute of limitations in respect of
enforced disappearance shall take the necessary measures to ensure that the term of
limitation for criminal proceedings: (a) Is of long duration and is proportionate to the
extreme seriousness of this offence”. 375 The travaux préparatoires of the Convention
indicate that this provision was intended to distinguish between those offences that might
constitute a crime against humanity – for which there should be no statute of limitations –
and all other offences under the Convention. 376
Appropriate penalties
(37) Draft article 6, paragraph 7, provides that each State shall ensure that the offences
referred to in the article shall be punishable by appropriate penalties that take into account
the grave nature of the offences.
(38) The Commission provided in its 1996 draft Code of Crimes against the Peace and
Security of Mankind that: “An individual who is responsible for a crime against the peace
and security of mankind shall be liable to punishment. The punishment shall be
commensurate with the character and gravity of the crime”. 377 The commentary further
explained that the “character of a crime is what distinguishes that crime from another
crime … The gravity of a crime is inferred from the circumstances in which it is committed
and the feelings which impelled the author”.378 Thus, “while the criminal act is legally the
same, the means and methods used differ, depending on varying degrees of depravity and
cruelty. All of these factors should guide the court in applying the penalty”.379
(39) To the extent that an international court or tribunal has jurisdiction over crimes
against humanity, the penalties attached to such an offence may vary, but are expected to be
appropriate given the gravity of the offence. The Statute of the International Criminal
Tribunal for the Former Yugoslavia provides that: “The penalty imposed by the Trial
Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the
Trial Chambers shall have recourse to the general practice regarding prison sentences in the
courts of the former Yugoslavia”.380 Furthermore, the International Criminal Tribunal for
the Former Yugoslavia is to “take into account such factors as the gravity of the offence
and the individual circumstances of the convicted person”. 381 The Statute of the
International Criminal Tribunal for Rwanda includes identical language, except that
recourse is to be had to “the general practice regarding prison sentences in the courts of
Rwanda”.382 Even for convictions for the most serious crimes of international concern, this
can result in a wide range of sentences. Article 77 of the 1998 Rome Statute also allows for
flexibility of this kind, by providing for a term of imprisonment of up to 30 years or life
imprisonment “when justified by the extreme gravity of the crime and the individual
to commence proceedings for any offence covered by this Convention and a longer period where the
alleged offender has evaded the administration of justice”).
374 United Nations Convention against Corruption, art. 29 (“Each State Party shall, where appropriate,
establish under its domestic law a long statute of limitations period in which to commence
proceedings for any offence established in accordance with this Convention and establish a longer
statute of limitations period or provide for the suspension of the statute of limitations where the
alleged offender has evaded the administration of justice”).
1 (a). In contrast, article VII of the Inter-American Convention on Forced Disappearance of Persons
provides that criminal prosecution and punishment of all forced disappearances shall not be subject to
statutes of limitations.
376 See Report of the intersessional open-ended working group to elaborate a draft legally binding
normative instrument for the protection of all persons from enforced disappearance
(E/CN.4/2004/59), paras. 43–46.
377 Yearbook … 1996, vol. II (Part Two), chap. II, sect. D, art. 3.
378 Ibid., para. (3) of the commentary to art. 3.
379 Ibid.
381 Ibid., art. 24, para. 2.
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circumstances of the convicted person”. 383 Similar formulations may be found in the
instruments regulating the Special Court for Sierra Leone, 384 the Special Tribunal for
Lebanon, 385 the Special Panels for Serious Crimes in East Timor, 386 the Supreme Iraqi
Criminal Tribunal, 387 and the Extraordinary African Chambers within the Senegalese
Judicial System. 388 Likewise, to the extent that a national jurisdiction has criminalized
crimes against humanity, the penalties attached to such an offence may vary, but are
expected to be commensurate with the gravity of the offence.
(40) International treaties addressing crimes do not dictate to States parties the penalties
to be imposed (or not to be imposed) but, rather, allow them the discretion to determine the
punishment, based on the circumstances of the particular offender and offence. 389 The 1948
Convention on the Prevention and Punishment of the Crime of Genocide simply calls for
“effective penalties for persons guilty of genocide or any of the other acts
enumerated …”. 390 The 1949 Geneva Conventions also provide a general standard and
leave to individual States the discretion to set the appropriate punishment, by simply
requiring “[t]he High Contracting Parties [to] undertake to enact any legislation necessary
to provide effective penal sanctions for … any of the grave breaches of the present
Convention …”. 391 More recent treaties addressing crimes in national legal systems
typically indicate that the penalty should be “appropriate”. Although the Commission
initially proposed the term “severe penalties” for use in its draft articles on diplomatic
agents and other protected persons, the term “appropriate penalties” was instead used by
States in the 1973 Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, including Diplomatic Agents. 392 That term has served as
a model for subsequent treaties. At the same time, the provision on “appropriate” penalties
in the 1973 Convention was accompanied by language calling for the penalty to take into
account the “grave nature” of the offence. The Commission commented that such a
reference was intended to emphasize that the penalty should take into account the important
“world interests” at stake in punishing such an offence. 393 Since 1973, this approach – that
each “State Party shall make these offences punishable by the appropriate penalties which
take into account their grave nature” – has been adopted for numerous treaties, including
the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. 394 In some treaties, the issue of gravity is expressed using terms such as
“extreme seriousness”, “serious nature” or “extreme gravity” of the offences.395
383 Rome Statute, art. 77.

384 Statute of the Special Court for Sierra Leone, art. 19.
385 Statute of the Special Tribunal for Lebanon, art. 24.
387 Supreme Iraqi Criminal Tribunal Statute, art. 24.
388 Extraordinary African Chambers Statute, art. 24.
389 See the report of the intersessional open-ended working group to elaborate a draft legally binding
normative instrument for the protection of all persons from enforced disappearance
(E/CN.4/2004/59), para. 58 (indicating that “[s]everal delegations welcomed the room for manoeuvre
granted to States” in this regard); Commission on Human Rights resolution 2005/81 on impunity,
para. 15 (calling upon “all States … to ensure that penalties are appropriate and proportionate to the
gravity of the crime committed”).
390 Convention on the Prevention and Punishment of the Crime of Genocide, art. V.
Geneva Convention IV, art. 146. See ICRC, Commentary on the First Geneva Convention, 2016,
paras. 2838–2846 (on article 49).
392 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents, art. 2, para. 2 (“[e]ach State Party shall make these crimes punishable
by appropriate penalties …”).
393 Yearbook … 1972, vol. II, document A/8710/Rev.1, chap. III, sect. B (draft articles on the prevention
and punishment of crimes against diplomatic agents and other internationally protected persons), para.
(12) of the commentary to draft article 2, para. 2.
394 Convention against Torture, art. 4. See also International Convention against the Taking of Hostages,
art. 2; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
(Rome, 10 March 1988), United Nations, Treaty Series, vol. 1678, No. 29004, p. 201, art. 5;
Convention on the Safety of United Nations and Associated Personnel, art. 9, para. 2; International
Convention for the Suppression of Terrorist Bombings, art. 4 (b); International Convention for the
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Legal persons
(41) Paragraphs 1 to 7 of draft article 6 are directed at criminal liability of offenders who
are natural persons, although the term “natural” is not used, which is consistent with the
approach taken in treaties addressing crimes. Paragraph 8, in contrast, addresses the liability
of “legal persons” for the offences referred to in draft article 6.
(42) Criminal liability of legal persons has become a feature of the national laws of many
States in recent years, but it is still unknown in many other States. 396 In States where the
concept is known, such liability sometimes exists with respect to international crimes. 397
Acts that can lead to such liability are, of course, committed by natural persons, who act as
officials, directors, officers, or through some other position or agency of the legal person.
Such liability, in States where the concept exists, is typically imposed when the offence at
issue was committed by a natural person on behalf of or for the benefit of the legal person.
(43) Criminal liability of legal persons has not featured significantly to date in
international criminal courts and tribunals. The Nürnberg Charter, in articles 9 and 10,
authorized the International Military Tribunal to declare any group or organization as a
criminal organization during the trial of an individual, which could lead to the trial of other
individuals for membership in the organization. In the course of the Tribunal’s proceedings,
as well as subsequent proceedings under Control Council Law No. 10, a number of such
organizations were so designated, but only natural persons were tried and punished. 398 The
International Criminal Tribunal for the Former Yugoslavia and International Criminal
Tribunal for Rwanda did not have criminal jurisdiction over legal persons, nor does the
Special Court for Sierra Leone, the Special Panels for Serious Crimes in East Timor, the
Extraordinary Chambers in the Courts of Cambodia, the Supreme Iraqi Criminal Tribunal,
or the Extraordinary African Chambers within the Senegalese Judicial System. The drafters
of the 1998 Rome Statute noted that “[t]here is a deep divergence of views as to the
advisability of including criminal responsibility of legal persons in the Statute” 399 and,
although proposals for inclusion of a provision on such responsibility were made, the
Statute ultimately did not contain such a provision.
(44) Liability of legal persons also has not been included in many treaties addressing
crimes at the national level, including: the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide; the 1949 Geneva Conventions; the 1970 Convention
for the Suppression of Unlawful Seizure of Aircraft; the 1973 Convention on the
Prevention and Punishment of Crimes Against Internationally Protected Persons, including
Diplomatic Agents; the 1984 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment; the 1997 International Convention for the
Suppression of the Financing of Terrorism, art. 4 (b); United Nations Convention against
Transnational Organized Crime, art. 11, para. 1; United Nations Convention against Corruption, art.
30, paras. 1, 5 and 7; International Convention for the Suppression of Acts of Nuclear Terrorism
(New York, 13 April 2005), United Nations, Treaty Series, vol. 2445, No. 44004, p. 89, arts. 5 (b) and
6; OAU Convention on the Prevention and Combating of Terrorism, art. 2 (a).
395 See, for example, International Convention for the Protection of All Persons from Enforced
Disappearance, art. 7, para. 1; Inter-American Convention to Prevent and Punish Torture, art. 6; Inter-
American Convention on Forced Disappearance of Persons, art. III.
396 See, for example, New TV S.A.L. Karma Mohamed Tashin Al Khayat, Case No. STL-14-
05/PT/AP/AR126.1, Decision of 2 October 2014 on interlocutory appeal concerning personal
jurisdiction in contempt proceedings, Appeals Panel, Special Tribunal for Lebanon, para. 58 (“[T]he
practice concerning criminal liability of corporations and the penalties associated therewith varies in
national systems”).
397 See, for example, Ecuador Código Orgánico Integral Penal, Registro Oficial, Suplemento, Año 1, N°
180, 10 February 2014, art. 90 (providing, in a section addressing crimes against humanity, that:
“When a legal person is responsible for any of the crimes of this Section, it will be penalized by its
dissolution”).
398 See, for example, United States v. Krauch and others (The I.G. Farben Case), in Trials of War
Criminals before the Nuernberg Military Tribunals, vols. VII–VIII (Washington D.C., Nürnberg
Military Tribunals, 1952).
399 See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court, Rome, 15 June-17 July 1998, Official Records, vol. III
(A/CONF.183/13), art. 23, para. 6, footnote 71.
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Suppression of Terrorist Bombings; and the 2006 International Convention for the
Protection of All Persons from Enforced Disappearance. The Commission’s 1996 draft
Code of Crimes against the Peace and Security of Mankind only addressed the criminal
responsibility of “an individual”.400
(45) On the other hand, the 2014 African Union protocol amending the statute of the
African Court of Justice and Human Rights, though not yet in force, provides jurisdiction to
the reconstituted African Court over legal persons (with the exception of States) for
international crimes, including crimes against humanity. 401 Further, although criminal
jurisdiction over legal persons (as well as over crimes against humanity) is not expressly
provided for in the statute of the Special Tribunal for Lebanon, the Tribunal’s Appeals
Panel concluded in 2014 that the Tribunal had jurisdiction to prosecute a legal person for
contempt of court.402
(46) Moreover, there are several treaties that address the liability of legal persons for
criminal offences, notably: the 1973 International Convention on the Suppression and
Punishment of the Crime of Apartheid; 403 the 1989 Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal; 404 the 1999
International Convention for the Suppression of the Financing of Terrorism; 405 the 2000
United Nations Convention against Transnational Organized Crime; 406 the 2000 Optional
Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography; 407 the 2003 United Nations Convention against
Corruption; 408 and a series of treaties concluded within the Council of Europe. 409 Other
400 Yearbook … 1996, vol. II (Part Two), chap. II, sect. D, p. 23, art. 3.
401 See Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and
Human Rights, 27 June 2014, art. 46C.
402 Al Khayat, Decision of 2 October 2014 (see footnote 396 above), para. 74. The Tribunal ultimately
found that the legal person, Al Jadeed TV, was not guilty. See Al Jadeed [Co.] S.A.L./New
T.V.S.A.L.(N.T.V.) Karma Mohamed Tahsin Al Khayat, Case No. STL-14-05/T/CJ, Contempt Judge,
Decision of 18 September 2015, Special Tribunal for Lebanon, para. 55; Al Jadeed [Co.] S.A.L./New
T.V.S.A.L.(N.T.V.) Karma Mohamed Tahsin Al Khayat, Case No. STL-14-05/A/AP, Appeals Panel,
Decision of 8 March 2016.
403 See International Convention on the Suppression and Punishment of the Crime of Apartheid, art. I,
para. 2 (“The States Parties to the present Convention declare criminal those organizations,
institutions and individuals committing the crime of apartheid”).
404 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their
Disposal (Basel, 22 March 1989), United Nations, Treaty Series, vol. 1673, No. 28911, p. 57, art. 2,
para. 14 (“For the purposes of this Convention: ... ‘Person’ means any natural or legal person”) and
art. 4, para. 3 (“The Parties consider that illegal traffic in hazardous wastes or other wastes is
criminal”).
405 International Convention for the Suppression of the Financing of Terrorism, art. 5. For the proposals
submitted during the negotiations that led to art. 5, see “Measures to eliminate international terrorism:
report of the working group” (A/C.6/54/L.2) (26 October 1999).
406 United Nations Convention against Transnational Organized Crime, art. 10.
407 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography (New York, 25 May 2000), United Nations, Treaty Series, vol.
2171, No. 27531, p. 227, art. 3, para. 4.
408 United Nations Convention against Corruption, art. 26. For background, see United Nations Office on
Drugs and Crime, Travaux préparatoires of the Negotiations for the Elaboration of the United
Nations Convention against Corruption (United Nations publication, Sales No. E. 10.V.13), pp. 233–
235 and Legislative Guide for the Implementation of the United Nations Convention against
Corruption, 2nd revised ed. (2012), pp. 107–113. For the analogous convention adopted by the
Organisation for Economic Co-operation and Development, see Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions (Paris, 21 November 1997), art. 2
(“Each Party shall take such measures as may be necessary, in accordance with its legal principles, to
establish the liability of legal persons for the bribery of a foreign public official”).
409 See, for example, Council of Europe, Criminal Law Convention on Corruption (Strasbourg, 27
January 1999), United Nations, Treaty Series, vol. 2216, No. 39391, p. 225, art. 18, supplemented by
the Additional Protocol (Strasbourg, 15 May 2003) (relating to bribery of arbitrators and jurors), ibid.,
vol. 2466, No. 39391, p. 168.
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regional instruments address the issue as well, mostly in the context of corruption. 410 Such
treaties typically do not define the term “legal person”, leaving it to national legal systems
to apply whatever definition would normally operate therein.
(47) The Commission decided to include a provision on liability of legal persons for
crimes against humanity, given the potential involvement of legal persons in acts
committed as part of a widespread or systematic attack directed against a civilian
population. In doing so, it has focused on language that has been widely accepted by States
in the context of other crimes and that contains considerable flexibility for States in the
implementation of their obligation.
(48) Paragraph 8 of draft article 6 is modelled on the 2000 Optional Protocol to the
Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child
Pornography. The Optional Protocol was adopted by the General Assembly in 2000 and
entered into force in 2002. As of mid-2019, 176 States are party to the Optional Protocol
and another 9 States have signed but not yet ratified it. Article 3, paragraph 1, of the
Optional Protocol obligates States parties to ensure that certain acts are covered under its
criminal or penal law, such as the sale of children for sexual exploitation or the offering of
a child for prostitution. Article 3, paragraph 4, then reads: “Subject to the provisions of its
national law, each State Party shall take measures, where appropriate, to establish the
liability of legal persons for offences established in paragraph 1 of the present article.
Subject to the legal principles of the State Party, such liability of legal persons may be
criminal, civil or administrative”.
(49) Paragraph 8 of draft article 6 uses the same language, but replaces “State Party” with
“State” and replaces “for offences established in paragraph 1 of the present article” with
“for the offences referred to in this draft article”. As such, paragraph 8 imposes an
obligation upon the State that it “shall take measures”, meaning that it is required to pursue
such measures in good faith. At the same time, paragraph 8 provides the State with
considerable flexibility to shape those measures in accordance with its national law. First,
the clause “[s]ubject to the provisions of its national law” should be understood as
according to the State considerable discretion as to the measures that will be adopted; the
obligation is “subject to” the State’s existing approach to liability of legal persons for
criminal offences under its national law. For example, in most States, liability of legal
persons for criminal offences will only apply under national law with respect to certain
types of legal persons and not to others. Indeed, under most national laws, “legal persons”
in this context likely excludes States, Governments, other public bodies in the exercise of
State authority, and public international organizations. 411 Likewise, the liability of legal
persons under national laws can vary based on: the range of natural persons whose conduct
can be attributed to the legal person; which modes of liability of natural persons can result
in liability of the legal person; whether it is necessary to prove the mens rea of a natural
person to establish liability of the legal person; or whether it is necessary to prove that a
specific natural person committed the offence.412
(50) Second, each State is obliged to take measures to establish the legal liability of legal
persons “where appropriate”. Even if the State, under its national law, is in general able to
impose liability upon legal persons for criminal offences, the State may conclude that such
a measure is inappropriate in the specific context of crimes against humanity.
410 See, for example, Inter-American Convention against Corruption (Caracas, 29 March 1996,
International Legal Materials, vol. 35, No. 3 (May 1996), p. 727, art. VIII; Southern African
Development Community Protocol against Corruption (Blantyre, Malawi, 14 August 2001), art. 4,
para. 2. See also African Union Convention on Preventing and Combating Corruption (Maputo, 11
July 2003), art. 11 (“State Parties undertake to: 1) Adopt legislative and other measures to prevent and
combat acts of corruption and related offences committed in and by agents of the private sector”).
411 See, for example, the Council of Europe Criminal Law Convention on Corruption makes explicit such
exclusion (see, for example, art. 1 (d), “For the purposes of this Convention: … ‘legal person’ shall
mean any entity having such status under the applicable national law, except for States or other public
bodies in the exercise of State authority and for public international organisations”).
412 For a brief overview of divergences in various common law and civil law jurisdictions on liability of
legal persons, see Al Jadeed, Contempt Judge, Decision of 18 September 2015 (footnote 402 above),
paras. 63–67.
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(51) For measures that are adopted, the second sentence of paragraph 8 provides that:
“Subject to the legal principles of the State, such liability of legal persons may be criminal,
civil or administrative”. Such a sentence appears not just in the 2000 Optional Protocol, as
discussed above, but also in other widely adhered-to treaties, such as the 2000 United
Nations Convention against Transnational Organized Crime413 and the 2003 United Nations
Convention against Corruption. 414 The flexibility indicated in such language again
acknowledges and accommodates the diversity of approaches adopted within national legal
systems. As such, there is no obligation to establish criminal liability if doing so is
inconsistent with a State’s national legal principles; in those cases, a form of civil or
administrative liability may be used as an alternative. In any event, whether criminal, civil
or administrative, such liability is without prejudice to the criminal liability of natural
persons provided for in draft article 6.
Article 7
Establishment of national jurisdiction
1. Each State shall take the necessary measures to establish its jurisdiction over
the offences covered by the present draft articles in the following cases:
(a) when the offence is committed in any territory under its jurisdiction or
on board a ship or aircraft registered in that State;
(b) when the alleged offender is a national of that State or, if that State
considers it appropriate, a stateless person who is habitually resident in that State’s
territory;
(c) when the victim is a national of that State if that State considers it
appropriate.
2. Each State shall also take the necessary measures to establish its jurisdiction
over the offences covered by the present draft articles in cases where the alleged
offender is present in any territory under its jurisdiction and it does not extradite or
surrender the person in accordance with the present draft articles.
3. The present draft articles do not exclude the exercise of any criminal
jurisdiction established by a State in accordance with its national law.
Commentary
(1) Draft article 7 provides that each State must establish jurisdiction over the offences
covered by the present draft articles in certain cases, such as when the crime occurs in any
territory under its jurisdiction, has been committed by one of its nationals or when the
offender is present in any territory under its jurisdiction.
(2) As a general matter, international instruments have sought to encourage States to
establish a relatively wide range of jurisdictional bases under national law to address the
most serious crimes of international concern, so that there is no safe haven for those who
commit the offence. Thus, according to the Commission’s 1996 draft Code of Crimes
against the Peace and Security of Mankind, “each State Party shall take such measures as
may be necessary to establish its jurisdiction over the crimes” set out in the draft Code,
other than the crime of aggression, “irrespective of where or by whom those crimes were
committed”.415 The breadth of such jurisdiction was necessary because: “The Commission
413 United Nations Convention against Transnational Organized Crime, art. 10, para. 2 (“Subject to the
legal principles of the State Party, the liability of legal persons may be criminal, civil or
administrative”.). See also the International Convention for the Suppression of the Financing of
Terrorism, art. 5, para. 1 (“Each State Party, in accordance with its domestic legal principles, shall
take the necessary measures to enable a legal entity located in its territory or organized under its laws
to be held liable when a person responsible for the management or control of that legal entity has, in
that capacity, committed an offence set forth in article 2. Such liability may be criminal, civil or
administrative”).
414 United Nations Convention against Corruption, art. 26, para. 2 (“Subject to the legal principles of the
State Party, the liability of legal persons may be criminal, civil or administrative”).
415 Yearbook … 1996, vol. II (Part Two), chap. II, sect. D, art. 8.
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considered that the effective implementation of the Code required a combined approach to
jurisdiction based on the broadest jurisdiction of national courts together with the possible
jurisdiction of an international criminal court”.416 The preamble to the 1998 Rome Statute
provides “that the most serious crimes of concern to the international community as a
whole must not go unpunished and that their effective prosecution must be ensured by
taking measures at the national level”, and further “that it is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes”.
(3) As such, when treaties concerning crimes address national law implementation, they
typically include a provision on the establishment of national jurisdiction. For example,
discussions within a working group of the Human Rights Commission convened to draft an
international instrument on enforced disappearance concluded that: “The establishment of
the broadest possible jurisdiction for domestic criminal courts in respect of enforced
disappearance appeared to be essential if the future instrument was to be effective”.417 At
the same time, such treaties typically only obligate a State party to exercise its jurisdiction
when an alleged offender is present in the State party’s territory (see draft article 9 below),
leading either to a submission of the matter to the prosecuting authorities within that State
party or to extradition or surrender of the alleged offender to another State party or
competent international tribunal (see draft article 10 below).
(4) Reflecting on the acceptance of a treaty obligation to establish jurisdiction, and in
the context of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, the International Court of Justice, in the case concerning
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), stated:
The obligation for the State to criminalize torture and to establish its jurisdiction
over it finds its equivalent in the provisions of many international conventions for
the combating of international crimes. This obligation, which has to be implemented
by the State concerned as soon as it is bound by the Convention, has in particular a
preventive and deterrent character, since by equipping themselves with the necessary
legal tools to prosecute this type of offence, the States parties ensure that their legal
systems will operate to that effect and commit themselves to coordinating their
efforts to eliminate any risk of impunity. This preventive character is all the more
pronounced as the number of States parties increases. 418
(5) Provisions comparable to those appearing in draft article 7 exist in many treaties
addressing crimes.419 While no treaty yet exists relating to crimes against humanity, Judges
Higgins, Kooijmans and Buergenthal indicated in their joint separate opinion in the case
concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium) that:
416 Ibid., para. (5) of the commentary to art. 8.

417 Commission on Human Rights, report of the intersessional open-ended working group to elaborate a
draft legally binding normative instrument for the protection of all persons from enforced
disappearance (E/CN.4/2003/71), para. 65.
418 See Questions relating to the Obligation to Prosecute or Extradite (footnote 23 above), p. 451, para.
75.
419 See, for example, Convention for the Suppression of Unlawful Seizure of Aircraft, art. 4; Convention
for the Suppression of Unlawful Acts against the Safety of Civil Aviation, art. 5, para. 1 (a)–(b);
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents, art. 3; International Convention against the Taking of Hostages, art. 5;
Convention against Torture, art. 5; United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, art. 4; Convention on the Safety of United Nations and
Associated Personnel, art. 10; Inter-American Convention on Forced Disappearance of Persons, art.
IV; International Convention for the Suppression of Terrorist Bombings, art. 6; International
Convention for the Suppression of the Financing of Terrorism, art. 7; OAU Convention on the
Prevention and Combating of Terrorism, art. 6, para. 1; United Nations Convention against
Transnational Organized Crime, art. 15; United Nations Convention against Corruption, art. 42;
International Convention for the Protection of All Persons from Enforced Disappearance, art. 9, paras.
1–2; Inter-American Convention to Prevent and Punish Torture, art. 12; Association of Southeast
Asian Nations Convention on Counter Terrorism, art. VII, paras. 1–3.
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The series of multilateral treaties with their special jurisdictional provisions reflect a
determination by the international community that those engaged in war crimes,
hijacking, hostage taking, torture should not go unpunished. Although crimes
against humanity are not yet the object of a distinct convention, a comparable
international indignation at such acts is not to be doubted.420
(6) Draft article 7, paragraph 1 (a), requires that jurisdiction be established when the
offence occurs in the State’s territory, a type of jurisdiction often referred to as “territorial
jurisdiction”. Rather than refer solely to a State’s “territory”, the Commission considered it
appropriate to refer to any territory “under [the State’s] jurisdiction” which, as is the case
for draft article 4, is intended to encapsulate the territory de jure of the State, as well as any
other territory under its jurisdiction. Draft article 7, paragraph 1 (a), also requires that a
State exercise jurisdiction when the offence occurs on board a vessel or aircraft registered
in that State. States that have adopted national laws on crimes against humanity typically
establish jurisdiction over acts occurring on such a vessel or aircraft.
(7) Draft article 7, paragraph 1 (b), calls for jurisdiction when the alleged offender is a
national of the State, a type of jurisdiction at times referred to as “nationality jurisdiction”
or “active personality jurisdiction”. Paragraph 1 (b) also indicates that the State may, on an
optional basis, establish jurisdiction where the offender is “a stateless person who is
habitually resident in the territory of that State”. 421 This formulation is based on the
language of certain existing conventions, such as article 5, paragraph 1 (b), of the 1979
International Convention against the Taking of Hostages.
(8) Draft article 7, paragraph 1 (c), concerns jurisdiction when the victim of the offence
is a national of the State, a type of jurisdiction at times referred to as “passive personality
jurisdiction”. Given that many States prefer not to exercise this type of jurisdiction, this
jurisdiction is optional; a State may establish such jurisdiction “if that State considers it
appropriate”, but the State is not obliged to do so. This formulation is also based on the
language of a wide variety of existing conventions.
(9) Draft article 7, paragraph 2, addresses a situation where the other types of
jurisdiction may not exist, but the alleged offender “is present” in the territory under the
State’s jurisdiction and the State does not extradite or surrender the person in accordance
with the present draft articles. In such a situation, even if the crime was not committed in its
territory, the alleged offender is not its national and the victims of the crime are not its
nationals, the State nevertheless is obliged to establish jurisdiction given the presence of the
alleged offender in territory under its jurisdiction. This obligation helps to prevent an
alleged offender from seeking refuge in a State that otherwise has no connection with the
offence. When taking the “necessary measures” to establish this type of jurisdiction, States
should adopt procedural safeguards to ensure its proper exercise. 422
420 Arrest Warrant of 11 April 2000 (see footnote 361 above), Joint Separate Opinion of Judges Higgins,
Kooijmans and Buergenthal, para. 51.
421 See Convention relating to the Status of Stateless Persons (New York, 28 September 1954), United
Nations, Treaty Series, vol. 360, No. 5158, p. 117, art. 1 (“[T]he term ‘stateless person’ means a
person who is not considered as a national by any State under the operation of its law”).
422 At the request of the General Assembly of the United Nations, the Secretary-General has produced a
series of reports compiling information on national laws and procedures concerning “The scope and
application of the principle of universal jurisdiction,” which includes a section on “Conditions,
restrictions or limitations to the exercise of jurisdiction”. See A/73/123 (2018), sect. II.B. For
examples of national laws and procedures in this regard, see Spain, Organic Act No. 1/2014, art. 23,
para. 5 (b) (2) (whereby the offence will not be prosecuted in Spain if there are proceedings to
investigate and prosecute the offence initiated in the State in which the offence was committed or in
the State of nationality of the accused person, unless the Supreme Court determines that such State is
unwilling or unable genuinely to carry out the investigation); United Kingdom, Government, “Note
on the Investigation and Prosecution of Crimes of Universal Jurisdiction” (2018) (providing that
initiation of United Kingdom proceedings be subject to the express consent of a high-level official,
that the necessary evidentiary threshold required for initiating preliminary measures in such cases not
be lower than the threshold generally necessary in each particular criminal jurisdiction, and other
procedural safeguards).
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(10) Draft article 7, paragraph 3, makes clear that, while each State is obliged to enact
these types of jurisdiction, it does not exclude any other jurisdiction that is available under
the national law of that State. Indeed, to preserve the right of States parties to establish
national jurisdiction beyond the scope of the treaty, and without prejudice to any applicable
rules of international law, treaties addressing crimes typically leave open the possibility that
a State party may have established other jurisdictional grounds upon which to hold an
alleged offender accountable. 423 In their joint separate opinion in the Arrest Warrant case,
Judges Higgins, Kooijmans and Buergenthal cited, inter alia, such a provision in the
Convention against Torture, and stated:
We reject the suggestion that the battle against impunity is ‘made over’ to
international treaties and tribunals, with national courts having no competence in
such matters. Great care has been taken when formulating the relevant treaty
provisions not to exclude other grounds of jurisdiction that may be exercised on a
voluntary basis.424
(11) Establishment of the various types of national jurisdiction set out in draft article 7
are important for supporting an aut dedere aut judicare obligation, as set forth in draft
article 10 below. In his separate opinion in the Arrest Warrant case, Judge Guillaume
remarked on the “system” set up under treaties of this sort:
Whenever the perpetrator of any of the offences covered by these conventions is
found in the territory of a State, that State is under an obligation to arrest him, and
then extradite or prosecute. It must have first conferred jurisdiction on its courts to
try him if he is not extradited. Thus, universal punishment of all the offences in
question is assured, as the perpetrators are denied refuge in all States. 425
(12) Treaties addressing crimes typically require various States to establish jurisdiction
over the crime, but do not seek to require States to exercise such jurisdiction unless the
alleged offender is present in any territory under the State’s jurisdiction (see draft articles 9
and 10 below). Once an alleged offender is present, it is possible that one or more other
States will have established jurisdiction over the offence and will wish to exercise such
jurisdiction, in which case they may seek extradition of the alleged offender from the State
where he or she is present. If so, draft article 13, paragraph 12, requires that the State where
the alleged offender is present “give due consideration to the request of the State in the
territory under whose jurisdiction the alleged offence has occurred”.426
Article 8
Investigation
Each State shall ensure that its competent authorities proceed to a prompt,
thorough and impartial investigation whenever there is reasonable ground to believe
that acts constituting crimes against humanity have been or are being committed in
any territory under its jurisdiction.
Commentary
(1) Draft article 8 addresses situations where there is reasonable ground to believe that
acts constituting crimes against humanity have been or are being committed in territory
423 See Ad hoc Committee on the Elaboration of a Convention against Transnational Organized Crime,
revised draft United Nations Convention against Transnational Organized Crime
(A/AC.254/4/Rev.4), p. 20, footnote 102. See also Council of Europe, Explanatory Report to the
Criminal Law Convention on Corruption, European Treaty Series, No. 173, para. 83 (“Jurisdiction is
traditionally based on territoriality or nationality. In the field of corruption these principles may,
however, not always suffice to exercise jurisdiction, for example over cases occurring outside the
territory of a Party, not involving its nationals, but still affecting its interests (e.g. national security).
Paragraph 4 of this article allows the Parties to establish, in conformity with their national law, other
types of jurisdiction as well”).
424 Arrest Warrant of 11 April 2000 (see footnote 361 above), Joint Separate Opinion of Judges Higgins,
Kooijmans and Buergenthal, para. 51.
425 Ibid., Separate Opinion of Judge Guillaume, para. 9 (emphasis added).
426 See commentary to draft article 13 below, at paras. (29)–(30) and paras. (33)–(34).
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under a State’s jurisdiction. That State is best situated to conduct such an investigation, so
as to determine whether crimes in fact have occurred or are occurring and, if so, whether
governmental forces under its control committed the crimes, whether forces under the
control of another State did so or whether they were committed by members of a non-State
organization. Such an investigation, which must be conducted in good faith, can lay the
foundation not only for identifying alleged offenders and their location, but also for helping
to stop (pursuant to draft article 3) the continuance of ongoing crimes or their recurrence by
identifying their source. Such an investigation should be contrasted with a preliminary
inquiry into the facts concerning a particular alleged offender who is present in a State,
which is addressed below in draft article 9, paragraph 2.
(2) A comparable obligation has featured in some treaties addressing other crimes. 427
For example, article 12 of the 1984 Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment provides: “Each State Party shall ensure that its
competent authorities proceed to a prompt and impartial investigation, wherever there is
reasonable ground to believe that an act of torture has been committed in any territory
under its jurisdiction”. That obligation is different from the State party’s obligation under
article 6, paragraph 2, of the 1984 Convention against Torture to undertake an inquiry into
the facts concerning a particular alleged offender.
(3) Draft article 8 requires that the investigation be carried out whenever there is
“reasonable ground to believe” that the offence has been committed. According to the
Committee against Torture, such a belief arises when relevant information is presented or
available to the competent authorities but does not require that victims have formally filed
complaints with those authorities. 428 Indeed, since it is likely that the more systematic the
practice of torture is in a given country, the fewer the number of official torture complaints
will be made, a violation of article 12 of the 1984 Convention against Torture is possible
even if the State has received no such complaints. The Committee against Torture has
indicated that State authorities must proceed automatically to an investigation whenever
there are reasonable grounds to believe that an act of torture or ill-treatment has been
committed, with “no special importance being attached to the grounds for the suspicion”.429
(4) The requirement of a “prompt” investigation means that as soon as there is a
reasonable ground to believe that crimes against humanity have been or are being
committed, the State must initiate an investigation without delay. In most cases where the
Committee against Torture found a lack of promptness, no investigation had been carried
out at all or had only been commenced after a long period of time had passed. For example,
the Committee considered “that a delay of 15 months before an investigation of allegations
of torture is initiated, is unreasonably long and not in compliance with the requirement of
article 12 of the Convention”.430 The rationale underlying the promptness requirement is
that physical traces that may prove torture can quickly disappear and that victims may be in
danger of further torture, which a prompt investigation may be able to prevent. 431
427 See, for example, Inter-American Convention to Prevent and Punish Torture, art. 8; International
Convention for the Protection of All Persons from Enforced Disappearance, art. 12, para. 2; see also
Council of Europe Convention on Preventing and Combating Violence against Women and Domestic
Violence, art. 55, para. 1.
428 See Committee against Torture, Encarnación Blanco Abad v. Spain, communication No. 59/Views
adopted on 14 May 1998, Official Records of the General Assembly, Fifty-third Session, Supplement
No. 44 (A/53/44), annex X, sect. A.3, para. 8.2; Danilo Dimitrijevic v. Serbia and Montenegro,
communication No. 172/2000, Views adopted on 16 November 2005, ibid., Sixty-first Session,
Supplement No. 44 (A/61/44), annex VIII, sect. A, para. 7.3.
429 See Dhaou Belgacem Thabti v. Tunisia, communication No. 187/2001, Views adopted on 14
November 2003, ibid., Fifty-ninth Session, Supplement No. 44 (A/59/44), annex VII, sect. A, para.
10.4.
430 Qani Halimi-Nedzibi v. Austria, communication No. 8/1991, Views adopted on 18 November 1993,
ibid., Forty-ninth Session, Supplement No. 44 (A/49/44), annex V. See also Bairamov v. Kazakhstan,
communication No. 497/2012, 14 May 2014, paras. 8.7–8.8, ibid., Sixty-ninth Session, Supplement
No. 44 (A/69/44), annex XIV, para. 13.5.
431 Encarnación Blanco Abad v. Spain (see footnote 428 above), para. 8.2.
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(5) The requirement of a “thorough” investigation means that a State must proceed with
its investigation in a manner that takes all reasonable steps available to that State to secure
evidence and that enables the serious assessment of that evidence. 432 Inclusion of this
element is consistent with article 12 of the International Convention for the Protection of
All Persons from Enforced Disappearance. The General Assembly of the United Nations, 433
the Human Rights Committee,434 and regional human rights courts have also emphasized
the requirement of a thorough investigation.435
(6) The requirement of an “impartial” investigation means that the State must proceed
with its investigation in a serious, effective and unbiased manner. Such investigation might
be done by a governmental authority, but could also be done by some other entity, such as
an independent commission of inquiry, a truth and reconciliation commission, or a national
human rights institution. In some instances, the Committee against Torture has
recommended that investigation of offences be “under the direct supervision of independent
members of the judiciary”.436 In other instances, it has stated that “all government bodies
not authorized to conduct investigations into criminal matters should be strictly prohibited
from doing so”. 437 The Committee has stated that an impartial investigation gives equal
weight to assertions that the offence did or did not occur, and then pursues appropriate
avenues of inquiry, such as checking available government records, examining relevant
government officials or ordering exhumation of bodies. 438
(7) Some treaties that do not expressly contain such an obligation to investigate have
nevertheless been read as implicitly containing one. The 1949 Geneva Conventions call on
States parties to search for and prosecute alleged offenders. This has been interpreted as
implying that each State party must provide in its national legislation for the mechanisms
and procedures to ensure that it can actively search for alleged offenders, make a
preliminary inquiry into facts and, when so warranted, submit any such cases to the
appropriate authorities for prosecution. 439 In addition, although the 1966 International
Covenant on Civil and Political Rights contains no such express obligation to investigate,
432 See, for example, Barabanshchikov v. Russia, Application No. 36220/02, Judgment, 8 January 2009,
First Section, European Court of Human Rights, para. 54 (“thorough” means “that the authorities
must always make a serious attempt to find out what happened and should not rely on hasty or ill-
founded conclusions to close their investigation or as the basis of their decisions. They must take all
reasonable steps available to them to secure the evidence concerning the incident, including, inter
alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which
undermines its ability to establish the cause of injuries or the identity of the persons responsible will
risk falling foul of this standard”).
433 Declaration on the Protection of All Persons from Enforced Disappearance, General Assembly
resolution 47/133 of 18 December 1992, art. 13, para. 1.
434 See, for example, Human Rights Committee, general comment No. 36 (2018), paras. 28 and 58; and
Human Rights Committee, general comment No. 31, para. 15; Human Rights Committee, general
comment No. 6 (1982) on the right to life, Official Records of the General Assembly, Thirty-seventh
Session, Supplement No. 40 (A/37/40), annex V, para. 4; Bousroual v. Algeria, communication No.
992/2001, Views adopted on 30 March 2006, ibid., Sixty-first Session, Supplement No. 40 (A/61/40),
vol. II, annex V, sect. I, paras. 9.11 and 11; annex V I, paras. 9.11 and 11, (CCPR/C/86/D/992/2001);
Herrera Rubio v. Colombia, communication No. 161/1983, 2 November 1987, ibid., Forty-third
Session, Supplement No. 40 (A/43/40), vol. II, annex VII, sect. B, para. 10.3.
435 See, for example, Kurt v. Turkey, Judgment of 25 May 1998, European Court of Human Rights,
Reports of Judgments and Decisions 1998-III, para. 140.
436 Report of the Committee against Torture, Official Records of the General Assembly, Forty-ninth
Session, Supplement No. 44 (A/49/44), chap. IV, consideration of reports submitted by States parties
under article 19 of the Convention, Ecuador, paras. 97–105, at para. 105. See Economic and Social
Council resolution 2006/23 of 27 July 2006 on strengthening basic principles of judicial conduct,
annex (Bangalore Principles of Judicial Conduct), value 2.
437 Report of the Committee against Torture, Official Records of the General Assembly, Fifty-sixth
Session, Supplement No. 44 (A/56/44), chap. IV, consideration of reports submitted by States parties
under article 19 of the Convention, Guatemala, paras. 67–76, at para. 76 (d).
438 Khaled Ben M’Barek v. Tunisia, communication No. 60/1996, 10 November 1999, ibid., Fifty-fifth
Session, Supplement No. 44 (A/55/44), annex VIII, sect. A, paras. 11.9–11.10.
439 See Geneva Convention I, art. 49, para. 2; ICRC, Commentary on the First Geneva Convention, 2016,
paras 2859–2860 (on article 49).
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the Human Rights Committee has repeatedly asserted that States must investigate, in good
faith, violations of the Covenant. 440 Regional human rights bodies have also interpreted
their legal instruments as implicitly containing a duty to conduct an investigation. 441
Article 9
Preliminary measures when an alleged offender is present
1. Upon being satisfied, after an examination of information available to it, that
the circumstances so warrant, any State in the territory under whose jurisdiction a
person alleged to have committed any offence covered by the present draft articles is
present shall take the person into custody or take other legal measures to ensure his
or her presence. The custody and other legal measures shall be as provided in the
law of that State, but may be continued only for such time as is necessary to enable
any criminal, extradition or surrender proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.
3. When a State, pursuant to this draft article, has taken a person into custody, it
shall immediately notify the States referred to in draft article 7, paragraph 1, of the
fact that such person is in custody and of the circumstances which warrant his or her
detention. The State which makes the preliminary inquiry contemplated in paragraph
2 of this draft article shall, as appropriate, promptly report its findings to the said
States and shall indicate whether it intends to exercise jurisdiction.
Commentary
(1) Draft article 9 provides for certain preliminary measures to be taken by the State in
the territory under whose jurisdiction an alleged offender is present. Paragraph 1 calls upon
the State, upon being satisfied that the circumstances so warrant,442 to take the person into
custody or take other legal measures443 to ensure his or her presence, in accordance with
that State’s law, but only for such time as is necessary to enable any criminal, extradition or
surrender proceedings to be instituted. Such measures are a common step in national
criminal proceedings, in particular to avoid further criminal acts and a risk of flight by the
alleged offender, and to prevent tampering of evidence by the alleged offender.
(2) Paragraph 2 provides that the State shall immediately make a preliminary inquiry
into the facts. The national criminal laws of States typically provide for such a preliminary
inquiry to determine whether a prosecutable offence exists.
(3) Paragraph 3 provides that the State shall also, after taking the person into custody,
immediately notify the States referred to in draft article 7, paragraph 1, of the detention and
440 See Human Rights Committee, general comment No. 31, para. 15. See also Nazriev v. Tajikistan,
communication No. 1044/2002, Views adopted on 17 March 2006, Official Records of the General
Assembly, Sixty-first Session, Supplement No. 40 (A/61/40), vol. II, annex V, sect. P, para. 8.2;
Kouidis v. Greece, communication No. 1070/2002, Views adopted on 28 March 2006, ibid., sect. T,
para. 9; Agabekov v. Uzbekistan, communication No. 1071/2002, views adopted on 16 March 2007,
ibid., Sixty-second Session, Supplement No. 40 (A/62/40), vol. II, annex VII, sect. I, para. 7.2;
Karimov v. Tajikistan and Nursatov v. Tajikistan, communication Nos. 1108/2002 and 1121/2002,
Views adopted on 26 March 2007, ibid., sect. H, para. 7.2.
441 See, for example, Ergi v. Turkey, Judgment of 28 July 1998, European Court of Human Rights,
Reports of Judgments and Decisions 1998-IV, paras. 82 and 85–86; Bati and Others v. Turkey,
Application Nos. 33097/96 and 57834/00, Final Judgment of 3 September 2004, First Section,
European Court of Human Rights, ECHR 2004-IV, para. 133; Paniagua Morales et al. v. Guatemala,
judgment of 8 March 1998, Inter-American Court of Human Rights, Series C, No. 37; Extrajudicial
Executions and Forced Disappearances of Persons v. Peru, Report No. 101/01, 11 October 2001,
Inter-American Commission of Human Rights, OEA/Ser./L/V/II.114 doc. 5 rev., p. 563.
442 Such “circumstances” refer not just to factual circumstances relating to the prior conduct of the
alleged offender, but also the legal circumstances (to include any procedural safeguards) concerning
the exercise of jurisdiction over an alleged offender.
443 See United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules),
General Assembly resolution 45/110 of 14 December 1990, annex; United Nations Rules for the
Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok
Rules), General Assembly resolution 65/229 of 21 December 2010, annex.
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of the circumstances which warrant it. Further, after making its preliminary inquiry, the
State shall promptly report its findings to those States and shall indicate whether it intends
to exercise jurisdiction. Doing so allows those other States to consider whether they wish to
exercise jurisdiction, in which case they might seek extradition. In some situations, the
State may not be fully aware of which other States have established jurisdiction (such as
another State that optionally has established jurisdiction with respect to a stateless person
who is habitually resident in that State’s territory); in such situations, the feasibility of
fulfilling the obligation may depend on the circumstances. The State’s reporting of its
findings need only be “as appropriate”, meaning that in some circumstances the State may
need to withhold some of the information it has uncovered, for example, to protect the
identities of victims or witnesses or to protect an ongoing investigation. Nevertheless, such
withholding of reporting must be undertaken in good faith.
(4) Both the General Assembly and the Security Council have recognized the
importance of such preliminary measures in the context of crimes against humanity. Thus,
the General Assembly has called upon “all the States concerned to take the necessary
measures for the thorough investigation of … crimes against humanity … and for the
detection, arrest, extradition and punishment of all … persons guilty of crimes against
humanity who have not yet been brought to trial or punished”.444 Similarly, it has said that
“refusal by States to co-operate in the arrest, extradition, trial and punishment of persons
guilty of … crimes against humanity is contrary to the purposes and principles of the
Charter of the United Nations and to generally recognized norms of international law”.445
The Security Council has emphasized “the responsibility of States to comply with their
relevant obligations to end impunity and to thoroughly investigate and prosecute persons
responsible for … crimes against humanity or other serious violations of international
humanitarian law in order to prevent violations, avoid their recurrence and seek sustainable
peace, justice, truth and reconciliation”.446
(5) Treaties addressing crimes typically provide for such preliminary measures, 447 such
as article 6 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.448 Reviewing, inter alia, the provisions contained in article 6, the
International Court of Justice has explained that “incorporating the appropriate legislation
into domestic law … would allow the State in whose territory a suspect is present
immediately to make a preliminary inquiry into the facts …, a necessary step in order to
enable that State, with knowledge of the facts, to submit the case to its competent
authorities for the purpose of prosecution …”. 449 The Court found that the preliminary
inquiry is intended, like any inquiry carried out by the competent authorities, to corroborate
or not the suspicions regarding the person in question. Those authorities who conduct the
inquiry have the task of drawing up a case file containing relevant facts and evidence; “this
may consist of documents or witness statements relating to the events at issue and to the
suspect’s possible involvement in the matter concerned”.450 The Court further noted that
“the choice of means for conducting the inquiry remains in the hands of the States parties”,
444 General Assembly resolution 2583 (XXIV) of 15 December 1969 on the question of the punishment
of war criminals and of persons who have committed crimes against humanity, para. 1.
445 General Assembly resolution 2840 (XXVI) of 18 December 1971 on the question of the punishment
of war criminals and of persons who have committed crimes against humanity, para. 4.
446 Security Council resolution 1894 (2009) of 11 November 2009, para. 10.
447 See, for example, Geneva Convention I, art. 49, para. 2; ICRC, Commentary on the First Geneva
Convention, 2016, para. 2860 (on article 49); Convention for the Suppression of Unlawful Seizure of
Aircraft, art. 6; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,
art. 6; International Convention against the Taking of Hostages, art. 6; Inter-American Convention to
Prevent and Punish Torture, art. 6; International Convention for the Suppression of Terrorist
Bombings, art. 7; International Convention for the Suppression of the Financing of Terrorism, art. 9;
OAU Convention on the Prevention and Combating of Terrorism, art. 7; International Convention for
the Protection of All Persons from Enforced Disappearance, art. 10; Association of Southeast Asian
Nations Convention on Counter Terrorism, art. VIII.
448 Convention against Torture, art. 6.
449 Questions relating to the Obligation to Prosecute or Extradite (see footnote 23 above), p. 450, para.
72.
450 Ibid., p. 453, para. 83.
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but that “steps must be taken as soon as the suspect is identified in the territory of the State,
in order to conduct an investigation of that case”. 451 Further, the purpose of such
preliminary measures is “to enable proceedings to be brought against the suspect, in the
absence of his extradition, and to achieve the object and purpose of the Convention, which
is to make more effective the struggle against torture by avoiding impunity for the
perpetrators of such acts”. 452 With respect to the appropriate timing for making a
preliminary inquiry, the Court found a violation of article 6 where Senegal had “not
immediately initiate[d] a preliminary inquiry as soon as [it] had reason to suspect [the
alleged perpetrator], who was in [its]territory, of being responsible for acts of torture”.453
Article 10
Aut dedere aut judicare
The State in the territory under whose jurisdiction the alleged offender is
present shall, if it does not extradite or surrender the person to another State or
competent international criminal court or tribunal, submit the case to its competent
authorities for the purpose of prosecution. Those authorities shall take their decision
in the same manner as in the case of any other offence of a grave nature under the
law of that State.
Commentary
(1) Draft article 10 obliges a State, in the territory under whose jurisdiction an alleged
offender is present, to submit the case to its competent authorities for the purpose of
prosecution. The only alternative means of meeting this obligation is if the State extradites
or surrenders the alleged offender to another State or competent international criminal court
or tribunal that is willing and able itself to submit the case to prosecution. This obligation is
commonly referred to as the principle of aut dedere aut judicare, a principle that has been
recently studied by the Commission 454 and that is contained in numerous multilateral
treaties addressing crimes.455 While a literal translation of aut dedere aut judicare may not
fully capture the meaning of this obligation, the Commission chose to retain the term in the
title, given its common use when referring to an obligation of this kind.
(2) The Commission’s 1996 draft Code of Crimes against the Peace and Security of
Mankind defined crimes against humanity in article 18 and further provided, in article 9,
that: “Without prejudice to the jurisdiction of an international criminal court, the State Party
in the territory of which an individual alleged to have committed a crime set out in article
17, 18, 19 or 20 is found shall extradite or prosecute that individual”.456
(3) Most multilateral treaties containing such an obligation 457 use what is referred to as
“the Hague formula”, after the 1970 Hague Convention for the Suppression of Unlawful
451 Ibid., p. 454, para. 86.

452 Ibid., p. 451, para. 74.
453 Ibid., p. 454, para. 88.
454 See Official Records of the General Assembly, Sixty-ninth Session, Supplement No. 10 (A/69/10),
chap. VI.
455 Survey of multilateral conventions which may be of relevance for the work of the International Law
Commission on the topic “The obligation to extradite or prosecute (aut dedere aut judicare)”, study
by the Secretariat (A/CN.4/630).
456 Yearbook … 1996, vol. II (Part Two), chap. II, sect. D, art. 9. See also Commission on Human Rights
resolution 2005/81 on impunity, para. 2 (recognizing “that States must prosecute or extradite
perpetrators, including accomplices, of international crimes such as … crimes against humanity … in
accordance with their international obligations in order to bring them to justice, and urg[ing] all States
to take effective measures to implement these obligations”).
457 See Organization of American States (OAS), Convention to Prevent and Punish the Acts of Terrorism
Taking the Form of Crimes against Persons and Related Extortion that are of International
Significance (Washington, D.C., 2 February 1971), United Nations, Treaty Series, vol. 1438, No.
24371, p. 195, art. 5; Organization of African Unity Convention for the Elimination of Mercenarism
in Africa (Libreville, 3 July 1977), ibid., vol. 1490, No. 25573, p. 89, arts. 8 and 9, paras. 2–3;
European Convention on the Suppression of Terrorism (Strasbourg, 27 January 1977), ibid., vol.
1137, No. 17828, p. 93, art. 7; Inter-American Convention to Prevent and Punish Torture, art. 14;
South Asian Association for Regional Cooperation (SAARC) Regional Convention on Suppression of
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Seizure of Aircraft. 458 Under that formula, the obligation arises whenever the alleged
offender is present in the territory of the State party, regardless of whether some other State
party seeks extradition. 459 Although regularly termed the obligation to extradite or
“prosecute”, the obligation is to “submit the case to its competent authorities for the
purpose of prosecution”, meaning to submit the matter to police and prosecutorial
authorities, who may or may not decide to prosecute in accordance with relevant
procedures and policies. For example, if the competent authorities determine that there is
insufficient evidence of guilt, or that the allegations have already been investigated
elsewhere and found to be without basis, then the accused need not be indicted, nor stand
trial or face punishment. 460 The travaux préparatoires of the 1970 Convention for the
Suppression of Unlawful Seizure of Aircraft indicate that the formula established “the
obligation of apprehension of the alleged offender, a possibility of extradition, the
obligation of reference to the competent authority and the possibility of prosecution”.461
(4) In the case concerning Questions relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), the International Court of Justice analysed the Hague
formula in the context of article 7 of the 1984 Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment:
90. As is apparent from the travaux préparatoires of the Convention, Article 7,
paragraph 1, is based on a similar provision contained in the Convention for the
Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December
1970. The obligation to submit the case to the competent authorities for the purpose
of prosecution (hereinafter the ‘obligation to prosecute’) was formulated in such a
way as to leave it to those authorities to decide whether or not to initiate proceedings,
thus respecting the independence of States parties’ judicial systems. These two
conventions emphasize, moreover, that the authorities shall take their decision in the
same manner as in the case of any ordinary offence of a serious nature under the law
of the State concerned (Article 7, paragraph 2, of the Convention against Torture
and Article 7 of the Hague Convention of 1970). It follows that the competent
authorities involved remain responsible for deciding on whether to initiate a
Terrorism (Kathmandu, 4 November 1987), in International Instruments related to the Prevention

and Suppression of International Terrorism, United Nations publication, Sales No. E.08.V.2 (New
York, 2008), p. 174, art. IV; Inter-American Convention on Forced Disappearance of Persons, art. VI;
Inter-American Convention on International Traffic in Minors (Mexico, 18 March 1994), OAS,
Treaty Series, No. 79, art. 9; Inter-American Convention against Corruption, art. XIII, para. 6; Inter-
American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition,
Explosives, and Other Related Materials (Washington, D.C., 14 November 1997), art. XIX, para. 6;
League of Arab States, Arab Convention on the Suppression of Terrorism (Cairo, 22 April 1998), in
International Instruments related to the Prevention and Suppression of International Terrorism,
United Nations publication, Sales No. E.08.V.2 (New York, 2008), p. 178, art. 5; Council of Europe,
Criminal Law Convention on Corruption, art. 27, para. 5; Convention of the Organisation of the
Islamic Conference on Combating International Terrorism (Ouagadougou, 1 July 1999), annex to
resolution 59/26-P, art. 6; Council of Europe, Convention on Cybercrime (Budapest, 23 November
2001), European Treaty Series, No. 185, art. 24, para. 6; African Union Convention on Preventing
and Combating Corruption, art. 15, para. 6; Council of Europe, Convention on the Prevention of
Terrorism (Warsaw, 16 May 2005), Council of Europe Treaty Series, No. 196, art. 18, para. 1;
Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw, 16 May
2005), Council of Europe Treaty Series, No. 197, art. 31, para. 3; Association of Southeast Asian
Nations Convention on Counter Terrorism, art. XIII, para. 1.
458 Convention for the Suppression of Unlawful Seizure of Aircraft, art. 7.
459 Under the 1949 Geneva Conventions, the obligations to search, investigate and prosecute are listed
before the possibility of extradition. These obligations exist independently of any extradition request.
ICRC, Commentary on the First Geneva Convention, 2016, para. 2859 (on article 49).
460 Survey of multilateral conventions which may be of relevance for the work of the International Law
Commission on the topic “The obligation to extradite or prosecute (aut dedere aut judicare)”, study
by the Secretariat (A/CN.4/630), pp. 74–75.
461 Statement of Chairperson Gilbert Guillaume (delegate from France), International Civil Aviation
Organization, Legal Committee, Seventeenth Session, Montreal, 9 February–11 March 1970, Minutes
and Documents relating to the Subject of Unlawful Seizure of Aircraft (Montreal, 1970), 30th meeting
(3 March 1970) (Doc. 8877-LC/161), para. 15.
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prosecution, in the light of the evidence before them and the relevant rules of
criminal procedure.
91. The obligation to prosecute provided for in Article 7, paragraph 1, is
normally implemented in the context of the Convention against Torture after the
State has performed the other obligations provided for in the preceding articles,
which require it to adopt adequate legislation to enable it to criminalize torture, give
its courts universal jurisdiction in the matter and make an inquiry into the facts.
These obligations, taken as a whole, may be regarded as elements of a single
conventional mechanism aimed at preventing suspects from escaping the
consequences of their criminal responsibility, if proven …
…
94. The Court considers that Article 7, paragraph 1, requires the State concerned
to submit the case to its competent authorities for the purpose of prosecution,
irrespective of the existence of a prior request for the extradition of the suspect. That
is why Article 6, paragraph 2, obliges the State to make a preliminary inquiry
immediately from the time that the suspect is present in its territory. The obligation
to submit the case to the competent authorities, under Article 7, paragraph 1, may or
may not result in the institution of proceedings, in the light of the evidence before
them, relating to the charges against the suspect.
95. However, if the State in whose territory the suspect is present has received a
request for extradition in any of the cases envisaged in the provisions of the
Convention, it can relieve itself of its obligation to prosecute by acceding to that
request. It follows that the choice between extradition or submission for prosecution,
pursuant to the Convention, does not mean that the two alternatives are to be given
the same weight. Extradition is an option offered to the State by the Convention,
whereas prosecution is an international obligation under the Convention, the
violation of which is a wrongful act engaging the responsibility of the State.
…
114. While Article 7, paragraph 1, of the Convention does not contain any
indication as to the time frame for performance of the obligation for which it
provides, it is necessarily implicit in the text that it must be implemented within a
reasonable time, in a manner compatible with the object and purpose of the
Convention.
115. The Court considers that the obligation on a State to prosecute, provided for
in Article 7, paragraph 1, of the Convention, is intended to allow the fulfilment of
the Convention’s object and purpose, which is ‘to make more effective the struggle
against torture’ (Preamble to the Convention). It is for that reason that proceedings
should be undertaken without delay.
…
120. The purpose of these treaty provisions is to prevent alleged perpetrators of
acts of torture from going unpunished, by ensuring that they cannot find refuge in
any State party. The State in whose territory the suspect is present does indeed have
the option of extraditing him to a country which has made such a request, but on the
condition that it is to a State which has jurisdiction in some capacity, pursuant to
Article 5 of the Convention, to prosecute and try him. 462
(5) The Court also found that various factors could not justify a failure to comply with
these obligations: the financial difficulties of a State;463 referral of the matter to a regional
organization;464 or difficulties with implementation under the State’s internal law.465
462 Questions relating to the Obligation to Prosecute or Extradite (see footnote 23 above), pp. 454–461,
paras. 90–91, 94–95, 114–115 and 120.
463 Ibid. p. 460, para. 112.
464 Ibid.
465 Ibid., para. 113.
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(6) The first sentence of draft article 10 recognizes that the State’s obligation can be
satisfied by extraditing or surrendering the alleged offender to a State. As was noted with
respect to draft article 7, it is possible that one or more other States will have established
jurisdiction over the offence and will wish to exercise such jurisdiction, in which case they
may seek extradition of the alleged offender from the State where he or she is present. If so,
draft article 13, paragraph 12, requires that a State where the alleged offender is present
“give due consideration to the request of the State in the territory under whose jurisdiction
the alleged offence has occurred”.466
(7) The first sentence of draft article 10 also recognizes that the State’s obligation can
be satisfied by extraditing or surrendering the alleged offender to an international criminal
court or tribunal that is competent to prosecute the offender. This other option has arisen in
conjunction with the establishment of the International Criminal Court and other
international criminal courts and tribunals. 467 The term “competent” serves two purposes; it
captures the notion that the international criminal court or tribunal must have jurisdiction
over the offence and the offender, and the notion that the State concerned is in a legal
relationship with the court or tribunal that would allow for such extradition or surrender.
Thus, it encompasses the idea expressed in some treaties that the court or tribunal must be
one whose jurisdiction the sending State has recognized. 468
(8) While the term “extradition” is often associated with the sending of a person to a
State and the term “surrender” is often used for the sending of a person to a competent
international criminal court or tribunal, draft article 10 is written so as not to limit the use of
the terms in that way. The terminology used in national criminal systems and in
international relations can vary469 and, for that reason, the Commission considered that a
more general formulation is preferable.
(9) The second sentence of draft article 10 provides that, when a State submits the
matter to prosecution, its “authorities shall take their decision in the same manner as in the
case of any other offence of a grave nature under the law of that State”. Most treaties
containing the Hague formula include such a clause, the objective of which is to ensure that
the normal procedures and standards relating to serious offences are applied. Such
authorities retain prosecutorial discretion as they may have under national law, in particular
in determining whether there is a reasonable factual or legal basis to proceed with the case.
In the context of the Rome Statute, such discretion is informed by whether the information
available “provides a reasonable basis to believe that a crime … has been or is being
committed” and by whether prosecution of the person is “in the interests of justice, taking
into account all the circumstances, including the gravity of the crime, the interests of the
victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged
crime”.470 While such discretion may exist, a State that refrains from pursuing prosecution
or that conducts a “sham” proceeding solely to shield an alleged offender from
accountability has not fulfilled the obligation set forth in draft article 10.
(10) The obligation upon a State to submit the case to the competent authorities may have
implications for a State’s effort to implement an amnesty, meaning legal measures that have
the effect of prospectively barring criminal prosecution of certain individuals (or categories
of individuals) in respect of specified criminal conduct alleged to have been committed
before the amnesty’s adoption, or legal measures that retroactively nullify legal liability
466 See commentary to draft article 13 below, paras. (31)–(32).

467 See report of the International Law Commission on the work of its sixty-sixth session (2014), Official
Records of the General Assembly, Sixty-ninth Session, Supplement No. 10 (A/69/10), chap. VI, sect. C
(final report on the topic of aut dedere aut judicare), pp. 155–156, paras. (34)–(35).
468 See International Convention for the Protection of All Persons from Enforced Disappearance, art. 11,
para. 1.
469 See, for example, European Union, Council Framework Decision of 13 June 2002 on the European
arrest warrant and the surrender procedures between Member States, Official Journal of the European
Communities, L 190, 18 July 2002, p. 1. Article 1 of the framework decision provides: “The European
arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender
by another Member State of a requested person, for the purposes of conducting a criminal prosecution
or executing a custodial sentence or detention order” (emphasis added).
470 Rome Statute, art. 53, paras. 1–2.
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previously established.471 An amnesty granted by a State in which crimes have occurred

may arise pursuant to its constitutional, statutory, or other law, and might be the product of
a peace agreement ending an armed conflict. Such an amnesty might be general in nature or
might be conditioned by certain requirements, such as disarmament of a non-State armed
group, a willingness of an alleged offender to testify in public to the crimes committed, or
an expression of apology to the victims or their families by the alleged offender.
(11) With respect to prosecution before international criminal courts or tribunals, the
possibility of including a provision on amnesty was debated during the negotiation of the
1998 Rome Statute of the International Criminal Court, but no such provision was included.
Nor was such a provision included in the statutes of the international criminal tribunals for
the former Yugoslavia or Rwanda. The former, however, held that an amnesty adopted in
national law in relation to the offence of torture “would not be accorded international legal
recognition”.472 The instrument establishing the Special Court for Sierra Leone 473 provided
that an amnesty adopted in national law is not a bar to its jurisdiction. The instrument
establishing the Extraordinary Chambers in the Courts of Cambodia provided that the
government shall not request an amnesty for persons investigated for or convicted of crimes
against humanity, while leaving to the Extraordinary Chambers to determine the scope of
any prior amnesty. 474 Additionally, the Special Court for Sierra Leone and the
Extraordinary Chambers in the Courts of Cambodia recognized that there is, respectively, a
“crystallising international norm” 475 or “emerging consensus” 476 prohibiting amnesties in
relation to serious international crimes, particularly in relation to blanket or general
amnesties, based on a duty to investigate and prosecute those crimes and punish their
perpetrators. An International Criminal Court Pre-Trial Chamber has found that “granting
amnesties and pardons for serious acts such as murder constituting crimes against humanity
is incompatible with internationally recognized human rights”.477
(12) With respect to prosecution before national courts, recently negotiated treaties
addressing crimes in national law have not expressly precluded amnesties, including
treaties addressing serious crimes. For example, the possibility of including a provision on
amnesty was raised during the negotiation of the 2006 International Convention for the
Protection of All Persons from Enforced Disappearance, but no such provision was
included.478 Regional human rights courts and bodies, including the Inter-American Court
of Human Rights, the European Court of Human Rights and the African Commission on
Human and Peoples’ Rights, however, have found amnesties to be impermissible or as not
precluding accountability under regional human rights treaties. 479 Expert treaty bodies have
471 Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for Post-
Conflict States: Amnesties (2009), HR/PUB/09/1, p. 5.
472 See Prosecutor v. Furundžija, Judgment, 10 December 1998 (footnote 302 above), para. 155.
473 Statute of the Special Court for Sierra Leone, art. 10 (“An amnesty granted to any person falling
within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the
present Statute shall not be a bar to prosecution”).
474 Extraordinary Chambers of Cambodia Law, art. 40 (“The Royal Government of Cambodia shall not
request an amnesty or pardon for any persons who may be investigated for or convicted of crimes
referred to in Articles 3, 4, 5, 6, 7 and 8 of this law. The scope of any amnesty or pardon that may
have been granted prior to the enactment of this Law is a matter to be decided by the Extraordinary
Chambers”).
475 See Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Case No. SCSL-2004-15-AR72(E) and
SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March
2004, paras. 66–74 and 82–84.
476 See Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and
Pardon), Case No. 002/19-09-2007/ECCC/TC, Judgment of 3 November 2011, Trial Chamber,
Extraordinary Chambers in the Courts of Cambodia, paras. 40–53.
477 Prosecutor v. Saif al-Islam Gaddafi, Case No. ICC-01/11-01/11, Decision on the ‘Admissibility
Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome
Statute’, 5 April 2019, Pre-Trial Chamber I, International Criminal Court, para. 77.
478 Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative
instrument for the protection of all persons from enforced disappearance (E/CN.4/2004/59), paras.
73–80.
479 See, for example, Barrios Altos v. Peru, Judgment of 14 March 2001, Inter-American Court of
Human Rights, Series C, No. 75, paras. 41–44; Almonacid-Arellano et al. v. Chile, Judgment, 26
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interpreted their respective treaties as precluding a State party from passing, applying or not
revoking amnesty laws. 480 Further, the position of the Secretary-General of the United
Nations is not to recognize or condone amnesties for genocide, war crimes, crimes against
humanity or gross violations of human rights for United Nations-endorsed peace
agreements.481 Since the entry into force of the Rome Statute, several States have adopted
national laws that prohibit amnesties and similar measures with respect to crimes against
humanity.482
September 2006 (see footnote 24 above), para. 114; Zimbabwe Human Rights NGO Forum v.
Zimbabwe, communication No. 245/02, Decision of 15 May 2006, African Commission on Human
and Peoples’ Rights, paras. 211–212. The European Court of Human Rights has taken a more
cautious approach, recognizing a “growing tendency in international law” to regard amnesties for
grave breaches of fundamental human rights as unacceptable, as they are incompatible with the
unanimously recognized obligation of States to prosecute and punish such crimes, but also indicating:
“Even if it were to be accepted that amnesties are possible where there are some particular
circumstances, such as a reconciliation process and/or a form of compensation to the victims, the
amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing
to indicate that there were any such circumstances.” See Marguš v. Croatia, Application No. 4455/10,
Judgment of 27 May 2014, Grand Chamber, European Court of Human Rights, ECHR 2014
(extracts), para. 139.
480 See, for example, Human Rights Committee, general comment No. 20, para. 15; Human Rights
Committee, general comment No. 31, para. 18; Human Rights Committee, Hugo Rodríguez v.
Uruguay, communication No. 322/1988, Views adopted on 19 July 1994, Official Records of the
General Assembly, Forty-ninth Session, Supplement No. 40 (A/49/40), vol. II, annex IX, sect. B, para.
12.4. The Committee against Torture has held that amnesties against torture are incompatible with the
obligations of States parties under the Convention against Torture. See, for example, Committee
against Torture, general comment No. 3 (2012) on the implementation of article 14, para. 41. The
Committee on the Elimination of Discrimination against Women has also recommended that States
parties ensure that substantive aspects of transitional justice mechanisms guarantee women’s access to
justice by, inter alia, rejecting amnesties for gender-based violence. Committee on the Elimination of
Discrimination against Women, general recommendation No. 30 (2013) on women in conflict
prevention, conflict and post-conflict situations, ibid., Sixty-ninth Session, Supplement No. 38
(A/69/38), chap. VII, para. 44, and CEDAW/C/GC/30, para. 81 (b).
481 See, for example, Report of the Secretary-General on the rule of law and transitional justice in
conflict and post-conflict societies of 23 August 2004 (S/2004/616), paras. 10, 32 and 64 (c). This
practice was first manifested when the Special Representative of the Secretary-General of the United
Nations attached a disclaimer to the 1999 Peace Agreement between the Government of Sierra Leone
and the Revolutionary United Front of Sierra Leone stating that “the amnesty provision contained in
article IX of the Agreement (‘absolute and free pardon’) shall not apply to international crimes of
genocide, crimes against humanity, war crimes and other serious violations of international
humanitarian law”. Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone (S/2000/915), para. 23. For additional views, see Office of the United Nations High
Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States: Amnesties (2009),
HR/PUB/09/1, p. 11 (“Under various sources of international law and under United Nations policy,
amnesties are impermissible if they: (a) Prevent prosecution of individuals who may be criminally
responsible for war crimes, genocide, crimes against humanity or gross violations of human rights,
including gender-specific violations; (b) Interfere with victims’ right to an effective remedy,
including reparation; or (c) Restrict victims’ and societies’ right to know the truth about violations of
human rights and humanitarian law. Moreover, amnesties that seek to restore human rights must be
designed with a view to ensuring that they do not restrict the rights restored or in some respects
perpetuate the original violations”.); Report of the Special Rapporteur on the question of torture and
other cruel, inhuman or degrading treatment or punishment (A/56/156), para. 33.
482 See, for example, Argentina, Ley 27.156, 31 July 2015, art. 1; Burkina Faso, Loi 052/2009 portant
détermination des compétences et de la procédure de mise en œuvre du Statut de Rome relatif à la
Cour pénale internationale par les juridictions burkinabé, art. 14; Burundi, Loi n°1/05 du 22 avril
2009, Code pénal du Burundi, art. 171; Central African Republic, Loi No. 08-020 portant amnistie
générale à l’endroit des personnalités, des militaires, des éléments et responsables civils des groupes
rebelles, 13 October 2008, art. 2; Colombia, Acuerdo de Paz, 24 November 2016, art. 40; Comoros,
Loi 011-022 du 13 décembre 2011, portant de Mise en œuvre du Statut de Rome, art. 14; Democratic
Republic of Congo, Loi n°014/006 du 11 février 2014 portant amnistie pour faits insurrectionnels,
faits de guerre et infractions politiques, art. 4; Panama, Código Penal de Panamá, art. 115, para. 3;
Uruguay, Ley 18.026, 4 October 2006, art. 8.
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(13) With respect to the present draft articles, it is noted that an amnesty adopted by one
State would not bar prosecution by another State with concurrent jurisdiction over the
offence.483 Within the State that has adopted the amnesty, its permissibility would need to
be evaluated, inter alia, in light of that State’s obligations under the present draft articles to
criminalize crimes against humanity, to comply with its aut dedere aut judicare obligation,
and to fulfil its obligations in relation to victims and others.
Article 11
Fair treatment of the alleged offender
1. Any person against whom measures are being taken in connection with an
offence covered by the present draft articles shall be guaranteed at all stages of the
proceedings fair treatment, including a fair trial, and full protection of his or her
rights under applicable national and international law, including human rights law
and international humanitarian law.
2. Any such person who is in prison, custody or detention in a State that is not
of his or her nationality shall be entitled:
(a) to communicate without delay with the nearest appropriate
representative of the State or States of which such person is a national or which is
otherwise entitled to protect that person’s rights or, if such person is a stateless
person, of the State which, at that person’s request, is willing to protect that person’s
rights;
(b) to be visited by a representative of that State or those States; and
(c) to be informed without delay of his or her rights under this paragraph.
3. The rights referred to in paragraph 2 shall be exercised in conformity with the
laws and regulations of the State in the territory under whose jurisdiction the person
is present, subject to the proviso that the said laws and regulations must enable full
effect to be given to the purpose for which the rights accorded under paragraph 2 are
intended.
Commentary
(1) Draft article 11 is focused on the obligation of the State to accord to any person,
against whom measures are being taken in connection with an offence covered by the draft
articles, fair treatment and full protection of his or her rights. Moreover, draft article 11
acknowledges the right of such a person, who is not of the State’s nationality but who is in
prison, custody or detention, to communicate with and have access to a representative of his
or her State.
(2) The title of draft article 11 refers to fair treatment of an “alleged offender”, but the
scope of the draft article is broader, covering any “person” against whom measures are
being taken “at all stages of the proceedings”. Thus, measures might be taken in connection
with an offence covered by the present draft articles before the person is indicted (such as
an investigation), while a person is being extradited or surrendered, or after the person has
been convicted (such as imprisonment). In such circumstances, the person might not be
regarded as an “alleged” offender. Nevertheless, draft article 11 is intended to cover
measures taken at all such stages against persons, recognizing that the rights to which the
person is entitled may vary depending on the stage; for example, after conviction there
would no longer be a presumption of innocence. 484
(3) Major human rights instruments seek to specify the standards to be applied, such as
those set forth in article 14 of the 1966 International Covenant on Civil and Political Rights,
while treaties addressing punishment of crimes within national law typically provide a
483 See, for example, Ould Dah v. France, Application No. 13113/03, Decision on admissibility of 17
March 2009, Fifth Section, European Court of Human Rights, ECHR 2009, para. 49.
484 Compare, for example, Rome Statute, art. 55 (rights of persons during an investigation) with arts. 66–
67 (presumption of innocence and rights of the accused).
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broad standard of “fair treatment”. 485 Treaties addressing national law do not define the
term “fair treatment”, but the term is viewed as incorporating the specific rights possessed
by an alleged offender under international law.
(4) Thus, when crafting article 8 of the draft articles on crimes against diplomatic agents,
the Commission asserted that the formulation of “fair treatment at all stages of the
proceedings” was “intended to incorporate all the guarantees generally recognized to a
detained or accused person”, and that an “example of such guarantees is found in article 14
of the International Covenant on Civil and Political Rights”.486 Further, the Commission
noted that the “expression ‘fair treatment’ was preferred, because of its generality, to more
usual expressions such as ‘due process’, ‘fair hearing’ or ‘fair trial’ which might be
interpreted in a narrow technical sense”.487
(5) While the term “fair treatment” includes the concept of a “fair trial”, in many treaties
reference to a fair trial is expressly included to stress its particular importance. Indeed, the
Human Rights Committee has found the right to a fair trial to be a “key element of human
rights protection” and a “procedural means to safeguard the rule of law”.488 Consequently,
draft article 11, paragraph 1, refers to fair treatment “including a fair trial”.
(6) In addition to fair treatment, paragraph 1 provides that the person is entitled to the
full protection of his or her rights, whether arising under applicable national or international
law. With respect to national law, generally all States provide within their law protections
of one degree or another for persons whom they investigate, detain, try or punish for a
criminal offence. Such protections may be specified in a constitution, statute, administrative
rule or judicial decision. Further, detailed rules may be codified or a broad standard may be
set referring to “fair treatment”, “due process”, “judicial guarantees” or “equal protection”.
Such protections are extremely important in ensuring that the extraordinary power of the
State’s criminal justice apparatus is not improperly brought to bear upon a suspect, among
other things preserving for that individual the ability to contest fully the State’s allegations
before an independent court (hence, allowing for an “equality of arms”).
(7) With respect to international law, both human rights law and international
humanitarian law are of particular relevance. At the most general level, human rights
protections are acknowledged in articles 10 and 11 of the 1948 Universal Declaration of
Human Rights,489 while more specific standards binding upon States are set forth in article
14 of the 1966 International Covenant on Civil and Political Rights, in regional human
485 See, for example, Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents, art. 9; International Convention against the Taking
of Hostages, art. 8, para. 2; Convention against Torture, art. 7, para. 3; Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation, art. 10, para. 2; Convention
on the Rights of the Child, art. 40, para. 2 (b); International Convention against the Recruitment, Use,
Financing and Training of Mercenaries (New York, 4 December 1989), ibid., vol. 2163, No. 37789, p.
75, art. 11; International Convention for the Suppression of Terrorist Bombings, art. 14; Second
Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of
Armed Conflict (The Hague, 26 March 1999), United Nations, Treaty Series, vol. 2253, No. 3511, art.
17, para. 2; International Convention for the Suppression of the Financing of Terrorism, art. 17;
United Nations Convention against Transnational Organized Crime, art. 16, para. 13; United Nations
Convention against Corruption, art. 44, para. 14; International Convention for the Suppression of Acts
of Nuclear Terrorism, art. 12; International Convention for the Protection of All Persons from
Enforced Disappearance, art. 11, para. 3; Association of Southeast Asian Nations Convention on
Counter Terrorism, art. 8, para. 1.
486 Yearbook … 1972, vol. II, document A/8710/Rev.1, chap. III, sect. B (Draft articles on the prevention
and punishment of crimes against diplomatic agents and other internationally protected persons), p.
320, commentary to art. 8.
487 Ibid.
488 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, Official Records of the General Assembly, Sixty-second session,
Supplement No. 40 (A/62/40), vol. I, annex VI, para. 2.
489 Universal Declaration of Human Rights, General Assembly resolution 217 A (III) of 10 December
1948, arts. 10–11.
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rights treaties 490 or in other applicable instruments. 491 With respect to international
humanitarian law, the 1949 Geneva Conventions require minimum basic guarantees of fair
treatment, fair trial, and full protection of rights for those who face criminal prosecution in
the course of armed conflict, applicable in both international armed conflict and non-
international armed conflict. 492 While the scope and application of these guarantees may
depend on the form of armed conflict at issue, many, if not all, of these guarantees are seen
as customary international law in all forms of armed conflict. 493 Relevant rights under
international law include: the right of the accused to be informed of the charges against him
or her; the right not to be compelled to incriminate himself or herself; the right to face
punishment only for an act that was criminalized by law at the time the act was performed
(the principle of nullum crimen, nulla poena sine lege); and the right to be presumed
innocent until proven guilty.
(8) Paragraph 2 of draft article 11 addresses the State’s obligations with respect to a
person who is not of the State’s nationality and who is in “prison, custody or detention”.
That term is to be understood as embracing all situations where the State restricts the
person’s ability to communicate freely with and be visited by a representative of: (a) his or
her State of nationality; (b) a State which is otherwise entitled to protect the person’s rights
or (c) if such person is a stateless person, the State which, at that person’s request, is willing
to protect that person’s rights. In such situations, the State in the territory under whose
jurisdiction the alleged offender is present is required to allow the alleged offender to
communicate, without delay, with the nearest appropriate representative of the State or
States concerned. Further, the alleged offender is entitled to be visited by a representative
of that State or those States. Finally, the alleged offender is entitled to be informed without
delay of these rights.
(9) Such rights are spelled out in greater detail in article 36, paragraph 1, of the 1963
Vienna Convention on Consular Relations, 494 which accords rights to both the detained
person and to the State of nationality, 495 and in customary international law. Recent treaties
addressing crimes typically do not seek to go into such detail but, like draft article 11,
490 See, for example, American Convention on Human Rights, art. 8; African Charter on Human and
Peoples’ Rights, art. 7; Convention for the Protection of Human Rights and Fundamental Freedoms,
art. 6.
491 See, for example, American Declaration of the Rights and Duties of Man (Bogota, 2 May 1948),
adopted by the Ninth International Conference of American States; Cairo Declaration on Human
Rights in Islam, Organisation of Islamic Cooperation Resolution No. 49/19-P, annex; Charter of the
Fundamental Rights of the European Union, adopted in Nice on 7 December 2000, Official Journal of
the European Communities, No. C 364, 18 December 2000, p. 1; United Nations Standard Minimum
Rules for the Treatment of Prisoners (the Nelson Mandela Rules), General Assembly resolution
70/175 of 17 December 2015, annex, rule 62; the Bangkok Rules (footnote 443 above), rule 2, para.
1; United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,
General Assembly resolution 67/187 of 28 March 2013, annex, principles 3 and 6.
492 See, for example, Geneva Convention I, art. 49, para. 4; Geneva Conventions, common art. 3;
Additional Protocol I, art. 75; Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non-International Armed Conflicts (Geneva, 8 June 1977),
United Nations, Treaty Series, vol. 1125, No. 17513, p. 609 (hereinafter “Additional Protocol II”), art.
6; ICRC, Commentary on the First Geneva Convention, 2016, paras. 685–686 (on common article 3)
and paras. 2901–2902 (on article 49). These include inter alia: the obligation to inform the accused of
the nature and cause of the offence alleged; the requirement that an accused must have the necessary
rights and means of defence; the right to be presumed innocent; the right to be tried in one’s own
presence; the right not to be compelled to testify against oneself or to confess guilt; the right to be
present and examine witnesses; the right not to be prosecuted or punished more than once by the same
Party to the same act or on the same charge (non bis in idem).
493 See Henckaerts and Doswald-Beck, Customary International Humanitarian Law, vol. 1: Rules
(footnote 333 above), pp. 352–371 (Rule 100).
494 Vienna Convention on Consular Relations (Vienna, 24 April 1963), United Nations, Treaty Series,
vol. 596, No. 8638, p. 261, art. 36, para. 1.
495 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466, at p. 492,
para. 74 (“Article 36, paragraph 1, establishes an interrelated régime designed to facilitate the
implementation of the system of consular protection”), and, at p. 494, para. 77 (“Based on the text of
these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights”).
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paragraph 2, instead simply reiterate that the alleged offender is entitled to communicate
with, and be visited by, his or her State of nationality (or, if a stateless person, with the
State where he or she usually resides or that is otherwise willing to protect that person’s
rights).496 As is the case for paragraph 1, such rights may operate differently in a context
where international humanitarian law applies, such as through communications and visits
undertaken by a Protecting Power or by the International Committee of the Red Cross.
(10) Paragraph 3 of draft article 11 provides that the rights referred to in paragraph 2
shall be exercised in conformity with the laws and regulations of the State in the territory
under whose jurisdiction the person is present, provided that such laws and regulations do
not prevent such rights being given the full effect for which they are intended. Those
national laws and regulations may relate, for example, to the ability of an investigating
magistrate to impose restrictions on communication for the protection of victims or
witnesses, as well as standard conditions with respect to visitation of a person being held at
a detention facility. A comparable provision exists in article 36, paragraph 2, of the 1963
Vienna Convention on Consular Relations497 and has been included as well in many treaties
addressing crimes.498 The Commission explained this provision in its commentary to what
became the 1963 Vienna Convention as follows:
“(5) All the above-mentioned rights are exercised in conformity with the laws and
regulations of the receiving State. Thus, visits to persons in custody or imprisoned
are permissible in conformity with the provisions of the code of criminal procedure
and prison regulations. As a general rule, for the purpose of visits to a person in
custody against whom a criminal investigation or a criminal trial is in process, codes
of criminal procedure require the permission of the examining magistrate, who will
decide in the light of the requirements of the investigation. In such a case, the
consular official must apply to the examining magistrate for permission. In the case
of a person imprisoned in pursuance of a judgement, the prison regulations
governing visits to inmates apply also to any visits which the consular official may
wish to make to a prisoner who is a national of the sending State.
…
(7) Although the rights provided for in this article must be exercised in
conformity with the laws and regulations of the receiving State, this does not mean
that these laws and regulations can nullify the rights in question.”499
(11) In the LaGrand case, the International Court of Justice found that the reference to
“rights” in article 36, paragraph 2, of the 1963 Vienna Convention on Consular Relations
“must be read as applying not only to the rights of the sending State, but also to the rights
of the detained individual”.500
496 See, for example, Convention for the Suppression of Unlawful Seizure of Aircraft, art. 6; Convention
for the Suppression of Unlawful Acts against the Safety of Civil Aviation, art. 6, para. 3; Convention
on the Prevention and Punishment of Crimes against Internationally Protected Persons, including
Diplomatic Agents, art. 6, para. 2; International Convention against the Taking of Hostages, art. 6,
para. 3; Convention against Torture, art. 6, para. 3; Convention on the Safety of United Nations and
Associated Personnel, art. 17, para. 2; International Convention for the Suppression of Terrorist
Bombings, art. 7, para. 3; International Convention for the Suppression of the Financing of Terrorism,
art. 9, para. 3; OAU Convention on the Prevention and Combating of Terrorism, art. 7, para. 3;
International Convention for the Protection of All Persons from Enforced Disappearance, art. 10,
para. 3; Association of Southeast Asian Nations Convention on Counter Terrorism, art. VIII, para. 4.
497 Vienna Convention on Consular Relations, art. 36, para. 2.
498 See, for example, International Convention against the Taking of Hostages, art. 6, para. 4;
International Convention for the Suppression of Terrorist Bombings, art. 7, para. 4; International
Convention for the Suppression of the Financing of Terrorism, art. 9, para. 4; OAU Convention on the
Prevention and Combating of Terrorism, art. 7, para. 4; Association of Southeast Asian Nations
Convention on Counter Terrorism, art. VIII, para. 5.
499 Yearbook … 1961, vol. II, document A/4843, draft articles on consular relations and commentary,
commentary to art. 36, paras. (5) and (7).
500 LaGrand (see footnote 495 above), p. 497, para. 89.
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Article 12
Victims, witnesses and others
1. Each State shall take the necessary measures to ensure that:
(a) any person who alleges that acts constituting crimes against humanity
have been or are being committed has the right to complain to the competent
authorities; and
(b) complainants, victims, witnesses, and their relatives and
representatives, as well as other persons participating in any investigation,
prosecution, extradition or other proceeding within the scope of the present draft
articles, shall be protected against ill-treatment or intimidation as a consequence of
any complaint, information, testimony or other evidence given. Protective measures
shall be without prejudice to the rights of the alleged offender referred to in draft
article 11.
2. Each State shall, in accordance with its national law, enable the views and
concerns of victims of a crime against humanity to be presented and considered at
appropriate stages of criminal proceedings against alleged offenders in a manner not
prejudicial to the rights referred to in draft article 11.
3. Each State shall take the necessary measures to ensure in its legal system that
the victims of a crime against humanity, committed through acts attributable to the
State under international law or committed in any territory under its jurisdiction,
have the right to obtain reparation for material and moral damages, on an individual
or collective basis, consisting, as appropriate, of one or more of the following or
other forms: restitution; compensation; satisfaction; rehabilitation; cessation and
guarantees of non-repetition.
Commentary
(1) Draft article 12 addresses the rights of victims, witnesses and other persons affected
by the commission of a crime against humanity.
(2) Many treaties addressing crimes under national law prior to the 1980s did not
contain provisions with respect to victims or witnesses 501 and, even after the 1980s, most
global treaties concerned with terrorism have not addressed the rights of victims and
witnesses. 502 Since the 1980s, however, many treaties concerning other crimes have
included provisions similar to those appearing in draft article 12, 503 including treaties
addressing acts that may constitute crimes against humanity in certain circumstances, such
as torture and enforced disappearance.504 Some of the statutes of international courts and
tribunals that have jurisdiction over crimes against humanity, notably the 1998 Rome
Statute,505 have addressed the rights of victims and witnesses, and the General Assembly of
501 See, for example, Convention on the Prevention and Punishment of the Crime of Genocide;
Convention for the Suppression of Unlawful Seizure of Aircraft; International Convention on the
Suppression and Punishment of the Crime of Apartheid; Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents;
International Convention against the Taking of Hostages.
502 See, for example, International Convention for the Suppression of Terrorist Bombings; Organization
of African Unity (OAU) Convention on the Prevention and Combating of Terrorism; International
Convention for the Suppression of Acts of Nuclear Terrorism; Association of Southeast Asian
Nations Convention on Counter Terrorism.
503 See, for example, United Nations Convention against Transnational Organized Crime, arts. 24–25;
United Nations Convention against Corruption, arts. 32–33.
504 See, for example, Convention against Torture, arts. 13–14; International Convention for the
Protection of All Persons from Enforced Disappearance, arts. 12 and 24.
505 See, for example, Rome Statute, art. 68; Rules of Procedure and Evidence of the International
Criminal Court, in Official Records of the Assembly of States Parties to the Rome Statute of the
International Criminal Court, First Session, New York, 3–10 September 2002 (ICC-ASP/1/3 and
Corr.1), chap. 4, section III.1, rules 86–88 (hereinafter “Rules of Procedure and Evidence of the
International Criminal Court”). For other tribunals, see Statute of the International Criminal Tribunal
for the Former Yugoslavia, art. 22; Statute of the International Criminal Tribunal for Rwanda, art. 21;
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the United Nations has provided guidance for States with respect to the rights of victims of
crimes, including victims of crimes against humanity. 506
(3) Most treaties that address the rights of victims within national law do not define the
term “victim”, allowing States instead to apply their existing law and practice,507 provided
that it is consistent with their obligations under international law. At the same time, practice
associated with those treaties and under customary international law provides guidance as
to how the term should be viewed. For example, the 2006 International Convention for the
Protection of All Persons from Enforced Disappearance defines “victim” for purposes of
that Convention as “the disappeared person and any individual who has suffered harm as
the direct result of an enforced disappearance”.508 The Convention on Cluster Munitions
defines “cluster munition victims” for purposes of that Convention as “all persons who
have been killed or suffered physical or psychological injury, economic loss, social
marginalisation or substantial impairment of the realisation of their rights caused by the use
of cluster munitions. They include those persons directly impacted by cluster munitions as
well as their affected families and communities”.509
(4) While the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment does not define what is meant in article 14 by “victim”, the
Committee against Torture has provided detailed guidance as to its meaning. In general
comment No. 3, the Committee stated:
Victims are persons who have individually or collectively suffered harm, including
physical or mental injury, emotional suffering, economic loss or substantial
impairment of their fundamental rights, through acts or omissions that constitute
violations of the Convention. A person should be considered a victim regardless of
whether the perpetrator of the violation is identified, apprehended, prosecuted or
convicted, and regardless of any familial or other relationship between the
perpetrator and the victim. The term ‘victim’ also includes affected immediate
family or dependants of the victim as well as persons who have suffered harm in
intervening to assist victims or to prevent victimization. 510
(5) At the regional level, the 1950 Convention for the Protection of Human Rights and
Fundamental Freedoms allows applications to be filed by “any person, non-governmental
organisation or group of individuals” claiming to be a “victim” of a violation of the
Convention.511 The European Court of Human Rights has found that such “victims” may be
harmed either directly or indirectly, 512 and that family members of a victim of a serious
human rights violation may themselves be “victims”.513 While the guarantees contained in
Extraordinary Chambers of Cambodia Law, art. 33; Statute of the Special Court of Sierra Leone, art.
16, para. 4; Statute of the Special Tribunal for Lebanon, art. 12, para. 4.
506 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, General
Assembly resolution 40/34 of 29 November 1985, annex; Basic Principles and Guidelines on the
Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law, General Assembly resolution 60/147
of 16 December 2005, annex.
507 See, for example, the General Victims’ Law of Mexico (Ley General de Víctimas, Diario Oficial de
la Federación el 9 de enero de 2013), which has detailed provisions on the rights of victims, but does
not contain restrictions on who may claim to be a victim.
508 International Convention for the Protection of All Persons from Enforced Disappearance, art. 24,
para. 1.
509 Convention on Cluster Munitions (Dublin, 1 August 2010), United Nations, Treaty Series, vol. 2688,
No. 47713, p. 39, art. 2, para. 1.
511 Convention for the Protection of Human Rights and Fundamental Freedoms, art. 34.
512 See, for example, Vallianatos and Others v. Greece, Application Nos. 29381/09 and 32684/09,
Judgment of 7 November 2013, Grand Chamber, European Court of Human Rights, ECHR 2013
(extracts), para. 47.
513 The European Court of Human Rights has stressed that whether a family member is a victim depends
on the existence of special factors that give the suffering of the applicant a dimension and character
distinct from the emotional distress which may be regarded as inevitably caused to relatives of a
victim of a serious human rights violation. Relevant elements include the closeness of the familial
bond and the way the authorities responded to the relative’s enquiries. See, for example, Çakici v.
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the 1969 American Convention on Human Rights are restricted to natural persons,514 the
Inter-American Court of Human Rights has also recognized both direct and indirect
individual victims, including family members, 515 as well as victim groups.516 The African
Charter on Human and Peoples’ Rights (Banjul Charter) does not use the term “victim”, but
the African Commission on Human and Peoples’ Rights, in its general comment No. 4,
stated that “[v]ictims are persons who individually or collectively suffer harm, including
physical or psychological harm, through acts or omissions that constitute violations of the
African Charter”. 517 Further, the Commission concluded that an “individual is a victim
regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted
or convicted, and regardless of any familial or other relationship between the perpetrator
and the victim”.518 Under all such treaties, the term “victim” is not construed narrowly or in
a discriminatory manner.
(6) Likewise, while the statutes of international criminal courts and tribunals do not
define the term “victim”, guidance may exist in the rules or jurisprudence of the tribunals.
Thus, rule 85 (a) of the Rules of Procedure and Evidence of the International Criminal
Court defines “victims” as “natural persons who have suffered harm as a result of the
commission of any crime within the jurisdiction of the Court”,519 which is understood as
including both direct and indirect victims, 520 while rule 85 (b) extends the definition to legal
persons provided such persons have suffered direct harm.521
Turkey, Application No. 23657/94, Judgment of 8 July 1999, Grand Chamber, European Court of
Human Rights, ECHR 1999-IV, para. 98; Elberte v. Latvia, Application No. 61243/08, Judgment of
13 January 2015, Fourth Section, European Court of Human Rights, ECHR 2015, para. 137.
514 American Convention on Human Rights, art. 1.
515 See, for example, Street Children (Villagrán-Morales et al.) v. Guatemala, Judgment of 19 November
1999 (Merits), Inter-American Court of Human Rights, Series C, No. 63, paras. 174–177 and 238;
Bámaca-Velásquez v. Guatemala, Judgment of 25 November 2000 (Merits), Inter-American Court of
Human Rights, Series C, No. 70, paras. 159–166.
516 See, for example, Yakye Axa Indigenous Community v. Paraguay, Judgment of 17 June 2005 (Merits,
Reparations and Costs), Inter-American Court of Human Rights, Series C, No. 125, para. 176.
517 African Commission on Human Rights, general comment No. 4 (2017) on the right to redress for
victims of torture and other cruel, inhuman or degrading punishment or treatment (art. 5), para. 16.
519 Rules of Procedure and Evidence of the International Criminal Court, rule 85 (a). The Court has
found that rule 85 (a) “establishes four criteria that have to be met in order to obtain the status of
victim: the victim must be a natural person; he or she must have suffered harm; the crime from which
the harm ensued must fall within the jurisdiction of the Court; and there must be a causal link between
the crime and the harm suffered”. Situation in the Democratic Republic of Congo, Case No. ICC-
01/04, public redacted version of decision on the applications for participation in the proceedings of
VPRS1, VPRS2, VPRS3, VPRS4, VPRS5 and VPRS6, 17 January 2006, Pre-Trial Chamber I,
International Criminal Court, para. 79. Further, the harm suffered by a victim for the purposes of rule
85 (a) must be “personal” harm, though it does not necessarily have to be “direct” harm. See Situation
in the Democratic Republic of Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Case
No. ICC-01/04-01/06 OA 9 OA 10, Judgment on the appeals of the Prosecutor and the Defence
against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, 11 July 2008,
Appeals Chamber, International Criminal Court, paras. 32–39.
520 See Situation in the Democratic Republic of Congo in the case of the Prosecutor v. Thomas Lubanga
Dyilo, Case No. ICC-01/04-01/06, redacted version of decision on indirect victims, 8 April 2009,
Trial Chamber I, International Criminal Court, paras. 44–52. In the context of crimes against
humanity involving cultural heritage, an International Criminal Court Trial Chamber identified
persons “affected” by the crime as “not only the direct victims of the crimes, namely the faithful and
inhabitants of Timbuktu, but also people throughout Mali and the international community”.
Prosecutor v. Ahmad Al Faqi Al Madhi, Case No. ICC-01/12-01/15, Reparations Order, 17 August
2017, Trial Chamber VIII, International Criminal Court, para. 51. The Chamber, however, limited its
assessment for the purpose of reparations “only to the harm suffered by or within the community of
Timbuktu, i.e. organisations or persons ordinarily residing in Timbuktu at the time of the commission
of the crimes or otherwise so closely related to the city that they can be considered to be part of this
community at the time of the attack”. Ibid., para. 56.
521 Rules of Procedure and Evidence of the International Criminal Court, rule 85 (b) (“Victims may
include organizations or institutions that have sustained direct harm to any of their property which is
dedicated to religion, education, art or science or charitable purposes, and to their historic
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measures to ensure that any person who alleges that acts constituting crimes against
humanity have been or are being committed has the right to complain to the competent
authorities, and further obliges States to protect from ill-treatment or intimidation those
who complain or otherwise participate in proceedings within the scope of the draft articles.
A similar provision is included in international treaties, including the 1984 Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 522 and
the 2006 International Convention for the Protection of All Persons from Enforced
Disappearance.523
(8) Subparagraph (a) of paragraph 1 extends the right to complain to “any person” who
alleges that acts constituting crimes against humanity have been or are being committed.
The term “any person” includes but is not limited to a victim or witness of a crime against
humanity, and may include legal persons such as religious bodies or non-governmental
organizations.
(9) Such persons have a right to complain to “competent authorities”, which, to be
effective, in some circumstances may need to be judicial authorities. Following a complaint,
State authorities have a duty to proceed to a prompt and impartial investigation whenever
there are reasonable grounds to believe that acts constituting crimes against humanity have
been or are being committed in any territory under the State’s jurisdiction, in accordance
with draft article 8.
(10) Subparagraph (b) of paragraph 1 obliges States to protect “complainants” as well as
the other categories of persons listed even if they did not file a complaint; those other
categories are “victims, witnesses, and their relatives and representatives, as well as other
persons participating in any investigation, prosecution, extradition or other proceeding
within the scope of the present draft articles”. Recent international treaties have similarly
expanded the category of persons to whom protection shall be granted, including the 2000
United Nations Convention against Transnational Organized Crime, 524 the 2003 United
Nations Convention against Corruption, 525 and the 2006 International Convention for the
Protection of All Persons from Enforced Disappearance.526 Protective measures for these
persons are required not just under treaties addressing crimes in national law, but also in the
statutes of international criminal courts and tribunals. 527
(11) Subparagraph (b) of paragraph 1 requires that the listed persons be protected from
“ill-treatment and intimidation” as a consequence of any complaint, information, testimony
monuments, hospitals and other places and objects for humanitarian purposes”). Paragraph 8 of the
2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law of the General Assembly provides: “For purposes of the present document, victims are persons
who individually or collectively suffered harm, including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their fundamental rights, through acts or
omissions that constitute gross violations of international human rights law, or serious violations of
international humanitarian law. Where appropriate, and in accordance with domestic law, the term
‘victim’ also includes the immediate family or dependants of the direct victim and persons who have
suffered harm in intervening to assist victims in distress or to prevent victimization.” For a similar
definition, see Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,
paras. 1–2.
522 Convention against Torture, art. 13.
523 International Convention for the Protection of All Persons from Enforced Disappearance, art. 12.
524 United Nations Convention against Transnational Organized Crime, art. 24, para. 1.
525 United Nations Convention against Corruption, art. 32, para. 1.
para. 1.
527 See, for example, Rome Statute, art. 68, para. 1; Statute of the International Criminal Tribunal for the
Former Yugoslavia, art. 22; Statute of the International Criminal Tribunal for Rwanda, art. 21;
Extraordinary Chambers of Cambodia Law, art. 33; Statute of the Special Court of Sierra Leone, art.
16; Statute of the Special Tribunal for Lebanon, art. 12.
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or other evidence given. The term “ill-treatment” relates not just to the person’s physical
well-being, but also includes the person’s psychological well-being, dignity or privacy. 528
(12) Subparagraph (b) does not provide a list of protective measures to be taken by States,
as the measures will inevitably vary according to the circumstances at issue, the capabilities
of the relevant State, and the preferences of the persons concerned. Such measures,
however, might include: the presentation of evidence by electronic or other special means
rather than in person;529 measures designed to protect the privacy and identity of witnesses
and victims;530 in camera proceedings;531 withholding evidence or information if disclosure
may lead to the grave endangerment of the security of a witness or his or her family; 532 the
relocation of victims and witnesses;533 and protective measures with respect to children. 534
(13) At the same time, States must be mindful that some protective measures may have
implications with respect to the rights of an alleged offender, such as the right to confront
witnesses against him or her. As a result, subparagraph (b) of paragraph 1 stipulates that
protective measures shall be without prejudice to the rights of the alleged offender referred
to in draft article 11.535
(14) Draft article 12, paragraph 2, provides that each State shall, in accordance with its
national law, enable the views and concerns of victims of a crime against humanity to be
presented and considered at appropriate stages of criminal proceedings. While expressing a
firm obligation, the clauses “in accordance with its national law” and “appropriate stages”
provide flexibility to the State as to implementation of the obligation, allowing States to
tailor the requirement to the unique characteristics of their criminal law system. For
example, in some jurisdictions this obligation might be fulfilled by allowing the victim to
deliver an impact statement at the time of sentencing. Although addressed only to “victims”,
it may also be appropriate for States to permit others (such as family members or
representatives) to present their views and concerns, especially in circumstances where a
victim of a crime against humanity has died or disappeared. Paragraph 2 is without
prejudice to other obligations of States that exist under international law.
(15) Examples of a provision such as paragraph 2 may be found in various treaties, such
as: the 1998 Rome Statute;536 the 2000 Optional Protocol to the Convention on the Rights
of the Child on the sale of children, child prostitution and child pornography; 537 the 2000
United Nations Convention against Transnational Organized Crime; 538 the 2000 Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
528 See, for example, Rome Statute, art. 68, para. 1.

529 See, for example, Rome Statute, art. 68, para. 2; United Nations Convention against Transnational
Organized Crime, art. 24, para. 2 (b); United Nations Convention against Corruption, art. 32, para. 2
(b).
530 See, for example, Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography, art. 8, para. 1 (e); Extraordinary Chambers of
Cambodia Law, art. 33.
531 See, for example, Rome Statute, art. 68, para. 2; Extraordinary Chambers of Cambodia Law, art. 33.
532 See, for example, Rome Statute, art. 68, para. 5.
533 See, for example, United Nations Convention against Transnational Organized Crime, art. 24, para. 2
(a); United Nations Convention against Corruption, art. 32, para. 2 (a).
534 See, for example, United Nations Model Strategies and Practical Measures on the Elimination of
Violence against Children in the Field of Crime Prevention and Criminal Justice, General Assembly
resolution 69/194 of 18 December 2014, annex, measures VI, VIII, XII; United Nations Principles
and Guidelines on Access to Legal Aid in Criminal Justice Systems (footnote 491 above), principles
4–5 and guidelines 7 and 10; Guidelines on Justice in Matters involving Child Victims and Witnesses
of Crime, Economic and Social Council resolution 2005/20 of 22 July 2005, annex.
535 Other relevant international treaties provide a similar protection, including the Rome Statute, art. 68,
para. 1; Optional Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography, art. 8, para. 6; United Nations Convention against Transnational
Organized Crime, art. 24, para. 2; United Nations Convention against Corruption, art. 32, para. 2.
536 Rome Statute, art. 68, para. 3.
537 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography, art. 8, para. 1.
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supplementing the United Nations Convention against Transnational Organized Crime; 539
and the 2003 United Nations Convention against Corruption.540
(16) Draft article 12, paragraph 3, addresses the right of a victim of a crime against
humanity to obtain reparation. The opening clause – “Each State shall take the necessary
measures to ensure in its legal system” – obliges States to have or enact necessary laws,
regulations, procedures or mechanisms to enable victims to pursue claims against and
secure redress for the harm they have suffered from those who are responsible for the harm,
be it the State itself or some other actor.541 At the same time, for any given situation of
crimes against humanity, the State or States that must implement such measures will
depend upon the context. The States concerned are those: (a) to which the acts constituting
crimes against humanity are attributable under international law; and (b) that exercise
jurisdiction over the territory where the crimes were committed.
(17) Paragraph 3 refers to the victim’s “right to obtain reparation”. Treaties and
instruments addressing this issue have used different terminology, sometimes referring to
the right to a “remedy” or “redress”, sometimes using the term “reparation”, and sometimes
referring only to a specific form of reparation, such as “compensation”.542 Thus, the right to
an “effective remedy” may be found in the 1948 Universal Declaration of Human Rights, 543
the 1966 International Covenant on Civil and Political Rights, 544 and in some regional
human rights treaties.545 The 1984 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, in article 14, refers to the victim’s ability to obtain
“redress” and to a right to “compensation” including “rehabilitation”. 546 The 2006
International Convention for the Protection of All Persons from Enforced Disappearance, in
article 24, refers to a “right to obtain reparation and prompt, fair and adequate
compensation”.547
(18) The Commission decided to refer to a “right to obtain reparation” as a means of
capturing redress in a comprehensive sense, an approach that appears to have taken root in
various treaty regimes. Thus, while the 1984 Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment quoted above refers to the terms “redress”,
“compensation” and “rehabilitation”, the Committee against Torture considers that the
539 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime, art. 6, para. 2.
541 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law, principles 12 to 23.
542 See, for example, International Convention for the Suppression of the Financing of Terrorism, art. 8,
para. 4; Optional Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography, art. 9, para. 4; United Nations Convention against Transnational
Organized Crime, art. 14, para. 2, and art. 25, para. 2; Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime, art. 6, para. 6; United Nations Convention
against Corruption, art. 35.
543 Universal Declaration of Human Rights, art. 8.
544 International Covenant on Civil and Political Rights, art. 2, para. 3. See also Human Rights
Committee, general comment No. 31, paras. 16–17.
545 See, for example, Convention for the Protection of Human Rights and Fundamental Freedoms, art.
13; American Convention on Human Rights, arts. 25 and 63. See also Organization of African Unity,
Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African
Court on Human and Peoples’ Rights (Ouagadougou, 10 June 1998), Office of the United Nations
High Commissioner for Refugees (UNHCR), Collection of International Instruments and Legal Texts
Concerning Refugees and Others of Concern to UNHCR, vol. 3, Regional Instruments, Africa, Middle
East, Asia, Americas, Geneva, UNHCR, 2007, p. 1040, at p. 1045, art. 27.
para. 4.
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provision as a whole embodies a “comprehensive reparative concept”, 548 according to

which:
The obligations of States parties to provide redress under article 14 are two-fold:
procedural and substantive. To satisfy their procedural obligations, States parties
shall enact legislation and establish complaints mechanisms, investigation bodies
and institutions, including independent judicial bodies, capable of determining the
right to and awarding redress for a victim of torture and ill-treatment, and ensure
that such mechanisms and bodies are effective and accessible to all victims. At the
substantive level, States parties shall ensure that victims of torture or ill-treatment
obtain full and effective redress and reparation, including compensation and the
means for as full rehabilitation as possible.549
(19) This movement towards a more comprehensive concept of reparation has led to
some treaty provisions that list various forms of reparation. For example, the 2006
International Convention for the Protection of All Persons from Enforced Disappearance
indicates that the “right to obtain reparation”, which covers “material and moral damages”,
may consist of not only compensation, but also, “where appropriate, other forms of
reparation such as: (a) Restitution; (b) Rehabilitation; (c) Satisfaction, including restoration
of dignity and reputation; (d) Guarantees of non-repetition”.550
(20) Draft article 12, paragraph 3, follows this approach by setting forth a list of forms of
reparation, which include, but are not limited to, restitution, compensation, satisfaction,
rehabilitation, cessation and guarantees of non-repetition. In the context of crimes against
humanity, all traditional forms of reparation are potentially relevant. Restitution, or the
return to the status quo ex ante, may be an appropriate form of reparation and includes the
ability for a victim to return to his or her home, the return of moveable property, or the
reconstruction of public or private buildings, including schools, hospitals and places of
religious worship. Compensation may be appropriate with respect to both material and
moral damages. Rehabilitation programmes for large numbers of persons in certain
circumstances may be required, such as programmes for medical treatment, provision of
prosthetic limbs, or trauma-focused therapy. Satisfaction, such as issuance of a statement of
apology or regret, may also be a desirable form of reparation. Likewise, reparation for a
crime against humanity might consist of assurances or guarantees of non-repetition.
(21) The illustrative list of forms of reparation, however, is preceded by the words “as
appropriate”. Such wording acknowledges that States must have some flexibility and
discretion to determine the appropriate form of reparation, recognizing that, in the
aftermath of crimes against humanity, various scenarios may arise, including those of
transitional justice, and reparations must be tailored to the specific context. For example, in
some situations, a State may be responsible for crimes against humanity while, in other
situations, non-State actors may be responsible. The crimes may have involved mass
atrocities in circumstances where, in their wake, a State may be struggling to rebuild itself,
leaving it with limited resources or any capacity to provide material redress to victims. The
ability of any given perpetrator to make reparation will also vary. Even so, the State
concerned must implement this obligation in good faith and not abuse its flexibility so as to
avoid appropriate reparation. Paragraph 3 is without prejudice to other obligations of States
that exist under international law.
(22) Paragraph 3 provides that such reparation may be “on an individual or collective
basis”. Reparation specific to each of the victims may be warranted, such as through the use
of regular civil claims processes in national courts or through a specially designed process
of mass claims compensation. Measures to preclude any statute of limitations on civil
claims should be considered in appropriate circumstances. In some situations, however,
only collective forms of reparation may be feasible or preferable, such as the building of
548 Committee against Torture, general comment No. 3, para. 2; Urra Guridi v. Spain, communication
No. 212/2002, decision adopted on 24 May 2005, Official Records of the General Assembly, Sixtieth
Session, Supplement No. 44 (A/60/44), annex VIII, sect. A, p. 147, para. 6.8.
550 International Convention for the Protection of All Persons from Enforced Disappearance, arts. 24,
paras. 4–5.
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monuments of remembrance or the reconstruction of schools, hospitals, clinics and places

of worship. This may be especially the case where a State is grappling with the aftermath of
a period of large-scale human rights abuses, necessitating creative transitional justice
mechanisms. In still other situations, a combination of individual and collective reparations
may be appropriate.
(23) Support for this approach may be seen in the approach to reparations taken by
international criminal courts and tribunals. The statutes of the international criminal
tribunals for the former Yugoslavia and for Rwanda contained provisions exclusively
addressing the possibility of restitution of property, not compensation or other forms of
reparation.551 Yet, when establishing other international criminal courts and tribunals, States
appear to have recognized that focusing solely on restitution is inadequate (instead the more
general term “reparation” is used) and that establishing only an individual right to
reparation for each victim may be problematic in the context of a mass atrocity. Instead,
allowance is made for the possibility of reparation for individual victims or for reparation
on a collective basis. 552 For example, the Rules of Procedure and Evidence of the
International Criminal Court provide that, in awarding reparation to victims pursuant to
article 75, “the Court may award reparations on an individualized basis or, where it deems
it appropriate, on a collective basis or both”, taking into account the scope and extent of any
damage, loss or injury. 553 In the context of the atrocities in Cambodia under the Khmer
Rouge, only “collective and moral reparations” are envisaged under the Internal Rules of
the Extraordinary Chambers in the Courts of Cambodia. 554
(24) Specification of the rights set forth in draft article 12 should not be read as excluding
the existence of other rights for victims, witnesses or others under international or national
law. For example, while treaties addressing human rights do not explicitly contain an
obligation of the State to provide information to victims of serious human rights abuses,
nevertheless a “right to information” or “right to truth” for victims has been inferred from
such treaties by some bodies. For example, the Human Rights Committee has inferred such
a right from the 1966 International Covenant on Civil and Political Rights as a way to end
or prevent the occurrence of psychological torture of families of victims of enforced
disappearances or secret executions. 555 The Committee also has found that, to fulfil its
obligation to provide an effective remedy, a State party should provide information about
the violation or, in cases of death of a missing person, the location of the burial site. 556
Likewise, the European Court of Human Rights has inferred from the 1950 Convention for
the Protection of Human Rights and Fundamental Freedoms, as part of the right to be free
from torture or ill-treatment, the right to an effective remedy and the right to an effective
investigation and to be informed of the results. 557 The African Commission on Human and
Peoples’ Rights has followed a similar approach with respect to the African Charter on
Human and Peoples’ Rights. 558 The Inter-American Commission on Human Rights has
551 Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 24, para. 3; Statute of
the International Criminal Tribunal for Rwanda, art. 23, para. 3.
552 See, for example, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, principle 13.
553 Rules of Procedure and Evidence of the International Criminal Court, rule 97, para. 1.
554 Internal Rules of the Extraordinary Chambers in the Court of Cambodia (Rev. 9) as revised on 16
January 2015, rules 23 and 23 quinquies.
555 See, for example, Lyashkevich v. Belarus, Communication No 887/1999, Views adopted on 3 April
2003, Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 40 (A/58/40),
vol. II, annex V, appendix P, para. 9.2.
557 See, for example, Kurt v. Turkey (footnote 435 above), paras. 130–134 and 140; Taş v. Turkey,
Application No. 24396/94, Judgment, 14 November 2000, European Court of Human Rights, paras.
79–80 and 91; Cyprus v. Turkey, Application No. 25781/94, Judgment, Grand Chamber, European
Court of Human Rights, ECHR 2001-IV, paras. 156–158.
558 Amnesty International v. Sudan, communications No. 48/90, 50/91, 52/91, 89/93, decision of 15
November 1999, African Commission on Human and Peoples’ Rights, para. 54. See also African
Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial
and Legal Assistance in Africa, African Union document DOC/OS(XXX)247, principle C, para. (b)
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characterized such a right in the American Convention on Human Rights as not just for the
benefit of the victims, but for society as a whole, since ensuring rights for the future
requires a society to learn from the abuses of the past. 559
Article 13
Extradition
1. This draft article shall apply to the offences covered by the present draft
articles when a requesting State seeks the extradition of a person who is present in
territory under the jurisdiction of a requested State.
2. Each of the offences covered by the present draft articles shall be deemed to
be included as an extraditable offence in any extradition treaty existing between
States. States undertake to include such offences as extraditable offences in every
extradition treaty to be concluded between them.
3. For the purposes of extradition between States, an offence covered by the
present draft articles shall not be regarded as a political offence or as an offence
connected with a political offence or as an offence inspired by political motives.
Accordingly, a request for extradition based on such an offence may not be refused
on these grounds alone.
4. If a State that makes extradition conditional on the existence of a treaty
receives a request for extradition from another State with which it has no extradition
treaty, it may consider the present draft articles as the legal basis for extradition in
respect of any offence covered by the present draft articles.
5. A State that makes extradition conditional on the existence of a treaty shall,
for any offence covered by the present draft articles:
(a) inform the Secretary-General of the United Nations whether it will use
the present draft articles as the legal basis for cooperation on extradition with other
States; and
(b) if it does not use the present draft articles as the legal basis for
cooperation on extradition, seek, where appropriate, to conclude treaties on
extradition with other States in order to implement this draft article.
6. States that do not make extradition conditional on the existence of a treaty
shall recognize the offences covered by the present draft articles as extraditable
offences between themselves.
7. Extradition shall be subject to the conditions provided for by the national law
of the requested State or by applicable extradition treaties, including the grounds
upon which the requested State may refuse extradition.
8. The requesting and requested States shall, subject to their national law,
endeavour to expedite extradition procedures and to simplify evidentiary
requirements relating thereto.
9. If necessary, the offences covered by the present draft articles shall be treated,
for the purposes of extradition between States, as if they had been committed not
only in the place in which they occurred but also in the territory of the States that
have established jurisdiction in accordance with draft article 7, paragraph 1.
10. If extradition, sought for purposes of enforcing a sentence, is refused because
the person sought is a national of the requested State, the requested State shall, if its
national law so permits and in conformity with the requirements of such law, upon
application of the requesting State, consider the enforcement of the sentence
imposed under the national law of the requesting State or the remainder thereof.
(providing that “the right to an effective remedy includes: … 3. access to the factual information
concerning the violations.”).
559 Inter-American Commission, Case of Ignacio Ellacría et al. v. El Salvador, Case No. 10.488, Report
No. 136/99 of 22 December 1999, paras. 221–228.
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11. Nothing in the present draft articles shall be interpreted as imposing an

obligation to extradite if the requested State has substantial grounds for believing
that the request has been made for the purpose of prosecuting or punishing a person
on account of that person’s gender, race, religion, nationality, ethnic origin, culture,
membership of a particular social group, political opinions, or other grounds that are
universally recognized as impermissible under international law, or that compliance
with the request would cause prejudice to that person’s position for any of these
reasons.
12. A requested State shall give due consideration to the request of the State in
the territory under whose jurisdiction the alleged offence has occurred.
13. Before refusing extradition, the requested State shall consult, as appropriate,
with the requesting State to provide it with ample opportunity to present its opinions
and to provide information relevant to its allegation.
Commentary
(1) Draft article 13 addresses the rights, obligations and procedures applicable to the
extradition of an alleged offender under the present draft articles. Extradition normally
refers to the process whereby one State (the requesting State) asks another State (the
requested State) to send to the requesting State someone present in the requested State in
order that he or she may be brought to trial on criminal charges in the requesting State. The
process also may arise where an offender has escaped from lawful custody following
conviction in the requesting State and is found in the requested State. Often extradition
between two States is regulated by a multilateral 560 or bilateral treaty,561 although not all
States require the existence of a treaty for an extradition to occur.
(2) In 1973, the General Assembly of the United Nations in resolution 3074 (XXVIII)
highlighted the importance of international cooperation in the extradition of persons who
have allegedly committed crimes against humanity, where necessary to ensure their
prosecution and punishment. 562 In 2001, the Sub-Commission on the Promotion and
Protection of Human Rights of the Commission on Human Rights reaffirmed the principles
set forth in General Assembly resolution 3074 (XXVIII) 563 and urged “all States to
cooperate in order to search for, arrest, extradite, bring to trial and punish persons found
guilty of war crimes and crimes against humanity”.564
(3) Draft article 13 should be considered in the overall context of the present draft
articles. Draft article 7, paragraph 2, provides that each State shall take the necessary
measures to establish its jurisdiction over the offences covered by the present draft articles
in cases where the alleged offender is present in any territory under its jurisdiction, and the
State does not extradite or surrender the person. When an alleged offender is present and
has been taken into custody, the State is obliged under draft article 9, paragraph 3, to notify
other States that have jurisdiction to prosecute the alleged offender, which may result in
those States seeking the alleged offender’s extradition. Further, draft article 10 obligates the
560 See, for example, European Convention on Extradition (Paris, 13 December 1957), United Nations,
Treaty Series, vol. 359, No. 5146, p. 273; Inter-American Convention on Extradition (Caracas, 25
February 1981), United Nations, Treaty Series, vol. 1752, No. 30597, p. 177. See also Council
framework decision of 13 June 2002 on the European arrest warrant and the surrender procedures
between Member States (Luxembourg, 2002), Official Journal of the European Communities, No. L
190, vol. 45 (18 July 2002), p. 1.
561 The 1990 United Nations Model Treaty on Extradition is one effort to help States in developing
bilateral extradition agreements capable of addressing a wide range of crimes. See General Assembly
resolution 45/116 of 14 December 1990, annex (subsequently amended by General Assembly
resolution 52/88 of 12 December 1997).
562 General Assembly resolution 3074 (XXVIII) of 3 December 1973.
563 International cooperation in the detection, arrest, extradition and punishment of persons guilty of war
crimes and crimes against humanity, resolution 2001/22 of 16 August 2001, para. 3, in report of the
Sub-Commission on the Promotion and Protection of Human Rights on its fifty-third session
(E/CN.4/2002/2-E/CN.4/Sub.2/2001/40). The Sub-Commission largely replicated in its resolution the
principles of the General Assembly, but with some modifications.
564 Ibid., para. 2.
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State to submit the case to its competent authorities for prosecution, unless the State
extradites or surrenders the person to another State or competent international criminal
court or tribunal.
(4) Thus, under the present draft articles, a State may satisfy the aut dedere aut judicare
obligation set forth in draft article 10 by extraditing (or surrendering) the alleged offender
to another State for prosecution. There is no obligation to extradite the alleged offender; the
obligation is for the State in the territory under whose jurisdiction the alleged offender is
present to submit the case to its competent authorities for the purpose of prosecution, unless
the person is extradited or surrendered to another State (or competent international criminal
court or tribunal). Yet that obligation may be satisfied, in the alternative, by extraditing the
alleged offender to another State. To facilitate such extradition, it is useful to have in place
clearly stated rights, obligations and procedures with respect to the extradition process,
which is the purpose of draft article 13.
(5) The Commission decided to model draft article 13 on article 44 of the 2003 United
Nations Convention against Corruption, which in turn was modelled on article 16 of the
2000 United Nations Convention against Transnational Organized Crime. Although a crime
against humanity by its nature is quite different from a crime of corruption, the issues
arising in the context of extradition are largely the same regardless of the nature of the
underlying crime, and the Commission was of the view that article 44 provides ample
guidance as to all relevant rights, obligations and procedures for extradition in the context
of crimes against humanity. Moreover, the provisions of article 44 are well understood by
the 186 States parties (as of mid-2019) to the 2003 United Nations Convention against
Corruption, especially through the detailed guides and other resources developed by the
United Nations Office on Drugs and Crime. 565
Application of the draft article when an extradition request is made

(6) Draft article 13, paragraph 1, provides that the draft article applies to the offences
covered by the present draft articles whenever a requesting State seeks the extradition of a
person who is present in territory under the jurisdiction of the requested State. The
language is modelled on article 44, paragraph 1, of the 2003 United Nations Convention
against Corruption.
(7) As noted above, the draft articles do not contain any obligation for a State to
extradite a person to another State. Rather, pursuant to draft article 10, whenever an alleged
offender is present in a State, that State is obliged to submit the matter to prosecution,
unless the person is extradited or surrendered to another State (or competent international
criminal court or tribunal). Thus, extradition is an option that a State may choose to
exercise if so requested by another State. When such a request occurs, then the provisions
of this draft article become relevant.
Inclusion as an extraditable offence in existing and future extradition treaties

(8) Draft article 13, paragraph 2, is modelled on article 44, paragraph 4, of the 2003
United Nations Convention against Corruption. It obligates a requested State to regard the
offences covered by the present draft articles (see draft article 6, paragraphs 1 to 3, above)
as extraditable offences in any existing extradition treaty between it and the requesting
565 See, for example, United Nations Office on Drugs and Crime, Legislative Guide for the
Implementation of the United Nations Convention against Corruption; Technical Guide to the United
Nations Convention against Corruption (New York, United Nations, 2009); and Travaux
préparatoires of the Negotiations for the Elaboration of the United Nations Convention against
Corruption. The United Nations Office on Drugs and Crime has developed similar resources for the
United Nations Convention against Transnational Organized Crime, which contains many of the same
provisions as the United Nations Convention against Corruption in its article on extradition. See, for
example, Legislative Guides for the Implementation of the United Nations Convention against
Transnational Organized Crime and the Protocols Thereto (United Nations publication, Sales No.
E.05.V.2). See also Interpretative notes for the official records (travaux préparatoires) of the
negotiation of the United Nations Convention against Transnational Organized Crime and the
Protocols thereto (A/55/383/Add.1).
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State, as well as any such treaties concluded by those States in the future. 566 This provision
is commonly included in other conventions.567
Exclusion of the “political offence” exception to extradition

(9) Paragraph 3 of draft article 13 excludes the “political offence” exception as a ground
for refusing an extradition request.
(10) Under some extradition treaties, the requested State may decline to extradite if it
regards the offence for which extradition is requested as political in nature. Yet there is
support for the proposition that crimes such as genocide and war crimes should not be
regarded as “political offences”. For example, article VII of the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide provides that genocide and other
enumerated acts “shall not be considered as political crimes for the purpose of
extradition”. 568 Similarly, article 1 of the Additional Protocol to the 1957 European
Convention on Extradition provides that the list of war crimes contained in the 1949
Geneva Conventions cannot be considered to amount to political offences and be exempted
from extradition on that basis. 569 There are similar reasons not to regard crimes against
humanity as a “political offence” so as to preclude extradition. 570 The United Nations
Revised Manual on the Model Treaty on Extradition provides that “certain crimes, such as
genocide, crimes against humanity and war crimes, are regarded by the international
community as so heinous that the perpetrators cannot rely on this restriction on
extradition”.571 The Sub-Commission on the Promotion and Protection of Human Rights of
the Commission on Human Rights declared that persons “charged with war crimes and
crimes against humanity shall not be allowed to claim that the actions fall within the
‘political offence’ exception to extradition”.572
(11) Contemporary bilateral extradition treaties often specify particular offences that
should not be regarded as “political offences” so as to preclude extradition. 573 Although
566 See article 7 of the draft articles on the prevention and punishment of crimes against diplomatic
agents and other internationally protected persons, Yearbook … 1972, vol. II, pp. 319–320; and article
10 of the draft Code of Crimes against the Peace and Security of Mankind, Yearbook…1996, vol. II
(Part Two), p. 32.
567 Similar provisions appear in: Convention for the Suppression of Unlawful Seizure of Aircraft, art. 8,
para. 1; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, art. 8,
para. 1; Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons, including Diplomatic Agents, art. 8, para. 1; Convention against Torture, art. 8, para. 1;
Convention on the Safety of United Nations and Associated Personnel, art. 15, para. 1; International
Convention for the Suppression of Terrorist Bombings, art. 9, para. 1; United Nations Convention
against Transnational Organized Crime, art. 16, para. 3; International Convention for the Protection of
All Persons from Enforced Disappearance, art. 13, paras. 2–3. The Commission’s 1996 draft Code of
Crimes against the Peace and Security of Mankind provides, in art. 10, para. 1, that, “[t]o the extent
that [genocide, crimes against humanity, crimes against the United Nations and associated personnel
and war crimes] are not extraditable offences in any extradition treaty existing between States Parties,
they shall be deemed to be included as such therein. States Parties undertake to include those crimes
as extraditable offences in every extradition treaty to be concluded between them”. Yearbook…1996,
vol. II (Part Two), p. 32.
568 Convention on the Prevention and Punishment of the Crime of Genocide, art. VII.
569 Additional Protocol to the European Convention on Extradition (Strasbourg, 15 October 1975),
United Nations, Treaty Series, vol. 1161, No. 5146, p. 450, art. 1.
570 See, for example, In the Matter of the Extradition of Mousa Mohammed Abu Marzook, United States
District Court, S. D. New York, 924 F. Supp. 565 (1996), p. 577 (“[I]f the act complained of is of
such heinous nature that it is a crime against humanity, it is necessarily outside the political offense
exception”).
571 United Nations Office on Drugs and Crime, Revised Manuals on the Model Treaty on Extradition and
on the Model Treaty on Mutual Assistance in Criminal Matters, Part One: Revised Manual on the
Model Treaty on Extradition, para. 45.
572 Sub-Commission on the Promotion and Protection of Human Rights, resolution 2001/22 on
international cooperation in the detection, arrest, extradition and punishment of persons guilty of war
crimes and crimes against humanity, para. 3.
573 See, for example, the Extradition Treaty between the Government of the United States of America
and the Government of South Africa (Washington, 16 September 1999), United Nations, Treaty
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some treaties addressing specific crimes do not address the issue, 574 many contemporary
multilateral treaties addressing specific crimes contain a provision barring the political
offence exception to extradition for that particular crime. 575 For example, article 13,
paragraph 1, of the 2006 International Convention for the Protection of All Persons from
Enforced Disappearance provides:
For the purposes of extradition between States Parties, the offence of enforced
disappearance shall not be regarded as a political offence or as an offence connected
with a political offence or as an offence inspired by political motives. Accordingly, a
request for extradition based on such an offence may not be refused on these
grounds alone.
(12) The Commission viewed the text of article 13, paragraph 1, of the 2006 International
Convention for the Protection of All Persons from Enforced Disappearance as an
appropriate model for draft article 13, paragraph 3. Paragraph 3 clarifies that the act of
committing a crime against humanity cannot be regarded as a “political offence”. This issue
differs, however, from whether a requesting State is pursuing the extradition because of the
individual’s political opinions; in other words, it differs from whether the State is alleging a
crime against humanity and making its request for extradition as a means of persecuting an
individual for his or her political views. The latter issue of persecution is addressed
separately in draft article 13, paragraph 11. The final clause of paragraph 3 “on these
grounds alone” signals that there may be other grounds that the State may invoke to refuse
extradition (see paragraphs (18) to (20) and (27) to (30) below), provided such other
grounds in fact exist.
States requiring a treaty to extradite

(13) Draft article 13, paragraphs 4 and 5, address the situation where a requested State
requires the existence of a treaty before it can extradite an individual to the requesting State.
(14) Paragraph 4 provides that, in such a situation, the requested State “may” use the
present draft articles as the legal basis for the extradition in respect of crimes against
humanity. As such, a State is not obliged to use the present draft articles for such purpose,
but may elect to do so. This paragraph is modelled on article 44, paragraph 5, of the 2003
United Nations Convention against Corruption, which reads: “If a State Party that makes
extradition conditional on the existence of a treaty receives a request for extradition from
another State Party with which it has no extradition treaty, it may consider this Convention
the legal basis for extradition in respect of any offence to which this article applies”.576 The
same or a similar provision may be found in numerous other treaties, 577 and the
Series, [vol. not published yet], No. 50792, art. 4, para. 2 (“For the purposes of this Treaty, the
following offences shall not be considered political offences: … (b) an offence for which both the
Requesting and Requested States have the obligation pursuant to a multilateral international
agreement to extradite the person sought or to submit the case to their respective competent
authorities for decision as to prosecution; …”); the Treaty on Extradition between Australia and the
Republic of Korea (Seoul, 5 September 1990), ibid., vol. 1642, No. 28218, art. 4, para. 1 (a)
(“Reference to a political offence shall not include … (ii) an offence in respect of which the
Contracting Parties have the obligation to establish jurisdiction or extradite by reason of a multilateral
international agreement to which they are both parties; and (iii) an offence against the law relating to
genocide”); Treaty of Extradition between the Government of the United Mexican States and the
Government of Canada (Mexico City, 16 March 1990), ibid., vol. 1589, No. 27824, art. IV, subpara.
(a) (“For the purpose of this paragraph, political offence shall not include an offence for which each
Party has the obligation, pursuant to a multilateral international agreement, to extradite the person
sought or to submit the case to its competent authorities for the purpose of prosecution”).
574 See, for example, International Convention against the Taking of Hostages; Convention against
Torture.
575 See, for example, International Convention for the Suppression of Terrorist Bombings, art. 11;
International Convention for the Suppression of the Financing of Terrorism, art. 14; United Nations
Convention against Corruption, art. 44, para. 4.
577 Convention for the Suppression of Unlawful Seizure of Aircraft, art. 8, para. 2; Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic
Agents, art. 8, para. 2; International Convention against the Taking of Hostages, art. 10, para. 2;
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Commission’s 1996 draft Code of Crimes against the Peace and Security of Mankind also
contains such a provision.578
(15) Paragraph 5 is modelled on article 44, paragraph 6, of the 2003 United Nations
Convention against Corruption. Paragraph 5 (a) obliges each State that makes extradition
conditional on the existence of a treaty to inform the Secretary-General of the United
Nations whether it will use the present draft articles as the legal basis for extradition in
relation to crimes against humanity.
(16) Draft article 13, paragraph 5 (b), obliges a State party that does not use the draft
articles as the legal basis for extradition to “seek, where appropriate, to conclude”
extradition treaties with other States. As such, States are not obliged under the present draft
articles to conclude extradition treaties with every other State with respect to crimes against
humanity but, rather, are encouraged to pursue appropriate efforts in that regard.579
States not requiring a treaty to extradite

(17) Draft article 13, paragraph 6, applies to States that do not make extradition
conditional on the existence of a treaty. With respect to those States, paragraph 6 obliges
them to “recognize the offences covered by the present draft articles as extraditable
offences between themselves”. This paragraph is modelled on article 44, paragraph 7, of the
2003 United Nations Convention against Corruption. 580 Similar provisions may be found in
many other treaties addressing crimes. 581 The Commission’s 1996 draft Code of Crimes
against the Peace and Security of Mankind also contains such a provision. 582
Requirements of the requested State’s national law or applicable treaties

(18) Draft article 13, paragraph 7, provides that extradition “shall be subject to the
conditions provided for by the national law of the requested State or by applicable
extradition treaties, including the grounds upon which the requested State may refuse
extradition”. Similar provisions may be found in various global 583 and regional584 treaties.
Convention against Torture, art. 8, para. 2; International Convention for the Suppression of Terrorist
Bombings, art. 9, para. 2; International Convention for the Suppression of the Financing of Terrorism,
art. 11, para. 2; United Nations Convention against Transnational Organized Crime, art. 16, para. 4;
International Convention for the Protection of All Persons from Enforced Disappearance, art. 13,
para. 4.
578 Yearbook … 1996, vol. II (Part Two), p. 32, art. 10, para. 2 (“If a State Party which makes extradition
conditional on the existence of a treaty receives a request for extradition from another State Party with
which it has no extradition treaty, it may at its option consider the present Code as the legal basis for
extradition in respect of those crimes. Extradition shall be subject to the conditions provided in the
law of the requested State”).
579 See Conference of the Parties to the United Nations Convention against Transnational Organized
Crime, Analytical report of the Secretariat on the Implementation of the United Nations Convention
against Transnational Organized Crime: updated information based on additional responses received
from States for the first reporting cycle (CTOC/COP/2005/2/Rev.1), para. 69.
580 United Nations Convention against Corruption, art. 44, para. 7 (“States Parties that do not make
extradition conditional on the existence of a treaty shall recognize offences to which this article
applies as extraditable offences between themselves”).
581 Convention for the Suppression of Unlawful Seizure of Aircraft, art. 8, para. 3; Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation, art. 8, para. 3; International
Convention against the Taking of Hostages, art. 10, para. 3; Convention against Torture, art. 8, para.
3; United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
art. 6, para. 4; International Convention for the Protection of All Persons from Enforced
Disappearance, art. 13, para. 5.
582 Yearbook … 1996, vol. II (Part Two), p. 32, art. 10, para. 3 (“States Parties which do not make
extradition conditional on the existence of a treaty shall recognize those crimes as extraditable
offences between themselves subject to the conditions provided in the law of the requested State”).
Suppression of Unlawful Acts against the Safety of Civil Aviation, art. 8, para. 2; Convention on the
Agents, art. 8, para. 2; Convention against Torture, art. 8, para. 2; Convention on the Safety of United
Nations and Associated Personnel, art. 15, para. 2; International Convention for the Suppression of
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This paragraph is modelled on article 44, paragraph 8, of the 2003 United Nations
Convention against Corruption, but does not retain language after the word “including” that
reads “inter alia, conditions in relation to the minimum penalty requirement for extradition
and”.585 The Commission was of the view that reference to minimum penalty requirements
was inappropriate in the context of allegations of crimes against humanity.
(19) This paragraph states the general rule that, while the extradition is to proceed in
accordance with the rights, obligations and procedures provided for in the present draft
articles, it remains subject to conditions set forth in the requested State’s national law or in
extradition treaties. Such conditions may relate to procedural steps, such as the need for a
decision by a national court or a certification by a minister prior to the extradition, or may
relate to situations where extradition is prohibited, such as: a prohibition on the extradition
of the State’s nationals or permanent residents; a prohibition on extradition where the
offence at issue is punishable by the death penalty; a prohibition on extradition to serve a
sentence that is based upon a trial in absentia; or a prohibition on extradition based on the
rule of speciality. 586 At the same time, some grounds for refusal found in national law
would be impermissible under the present draft articles, such as the invocation of a statute
of limitations in contravention of draft article 6, paragraph 6, or may be impermissible
under other rules of international law.
(20) Whatever the reason for refusing extradition, in the context of the present draft
articles, the requested State in which the offender is present remains obliged to submit the
case to its competent authorities for the purpose of prosecution, pursuant to draft article 10.
Expedition of extradition procedures and simplication of evidentiary requirements

(21) Draft article 13, paragraph 8, provides that the requesting and requested States shall,
subject to their national law, endeavour to expedite extradition procedures and to simplify
evidentiary requirements relating thereto. This text is modelled on article 44, paragraph 9,
of the 2003 United Nations Convention against Corruption. The Working Group on
International Cooperation of the Conference of the Parties to the United Nations
Convention against Transnational Organized Crime has evaluated and recommended
methods for expediting such procedures and simplifying such requirements. 587
Deeming the offence to have occurred in the requesting State

(22) Draft article 13, paragraph 9, addresses the situation where a requested State, under
its national law, may only extradite a person to a State where the crime occurred. 588 To
facilitate extradition to a broader range of States, paragraph 9 provides that, “[i]f necessary,
the offences covered by the present draft articles shall be treated, for the purposes of
extradition between States, as if they had been committed not only in the place in which
Terrorist Bombings, art. 9, para. 2; International Convention for Suppression of the Financing of
Terrorism, art. 11, para. 2; United Nations Convention against Transnational Organized Crime, art.
16, para. 7; International Convention for the Protection of All Persons from Enforced Disappearance,
art. 13, para. 6.
584 See, for example, Inter-American Convention to Prevent and Punish Torture, art. 13; Inter-American
Convention on Forced Disappearance of Persons, art. V; Council of Europe Criminal Law
Convention on Corruption, art. 27, para. 4.
585 United Nations Convention against Corruption, art. 44, para. 8 (“Extradition shall be subject to the
conditions provided for by the domestic law of the requested State Party or by applicable extradition
treaties, including, inter alia, conditions in relation to the minimum penalty requirement for
extradition and the grounds upon which the requested State Party may refuse extradition”).
586 See, for example, the United Kingdom Extradition Act, sect. 17.
587 See, for example, Report on the meeting of the Working Group on International Cooperation held in
Vienna on 16 October 2018 (CTOC/COP/WG.3/2018/6); Challenges faced in expediting the
extradition process, including addressing health and safety and other human rights issues, as well as
litigation strategies utilized by defendants to delay the resolution of an extradition request
(CTOC/COP/WG.3/2018/5).
588 See Yearbook … 1996, vol. II (Part Two), p. 33, para. (3) of the commentary to draft article 10
(“Under some treaties and national laws, the custodial State may only grant requests for extradition
coming from the State in which the crime occurred”).
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they occurred but also in the territory of the States that have established jurisdiction in
accordance with draft article 7, paragraph 1”. This text is modelled on article 11, paragraph
4, of the 1999 International Convention for the Suppression of the Financing of
Terrorism589 and has been used in many treaties addressing crimes. 590
(23) Treaty provisions of this kind refer to “States that have established jurisdiction”
under the treaty on the basis of connections such as the nationality of the alleged offender
or of the victims of the crime (hence, the cross-reference in draft article 13, paragraph 9, to
draft article 7, paragraph 1). Such provisions do not refer to States that have established
jurisdiction based on the presence of the offender (draft article 7, paragraph 2), because the
State requesting extradition is never the State in which the alleged offender is already
present. In this instance, there is also no cross-reference to draft article 7, paragraph 3,
which does not require States to establish jurisdiction but, rather, preserves the right of
States to establish national jurisdiction beyond the scope of the present draft articles.
(24) In its commentary to the 1996 draft Code of Crimes against the Peace and Security
of Mankind, which contains a similar provision in article 10, paragraph 4, 591 the
Commission stated that “[p]aragraph 4 secures the possibility for the custodial State to
grant a request for extradition received from any State party … with respect to the crimes”
established in the draft Code, and that “[t]his broader approach is consistent with the
general obligation of every State party to establish its jurisdiction over [those] crimes”.592
Enforcement of a sentence imposed upon a State’s own nationals

(25) Draft article 13, paragraph 10, concerns situations where the national of a requested
State is convicted and sentenced in a foreign State, and then flees to the requested State, but
the requested State is unable under its law to extradite its nationals. In such a situation,
paragraph 10 provides that “the requested State shall, if its national law so permits and in
conformity with the requirements of such law, upon application of the requesting State,
consider the enforcement of the sentence imposed under the national law of the requesting
State or the remainder thereof”. Similar provisions are found in the 2000 United Nations
Convention against Transnational Organized Crime 593 and the 2003 United Nations
Convention against Corruption.594
(26) The Commission also considered inclusion of a paragraph in draft article 13 that
would expressly address the situation where the requested State can extradite one of its
nationals, but only if the alleged offender will be returned to the requested State to serve
any sentence imposed by the requesting State. Such a provision may be found in the 2000
United Nations Convention against Transnational Organized Crime 595 and the 2003 United
Nations Convention against Corruption. 596 The Commission deemed such a situation as
falling within the scope of conditions that may be applied under draft article 13, paragraph
589 International Convention for the Suppression of the Financing of Terrorism, art. 11, para. 4.
Suppression of Unlawful Acts against the Safety of Civil Aviation, art. 8, para. 4; Convention on the
Agents, art. 8, para. 4; International Convention against the Taking of Hostages, art. 10, para. 4;
Convention against Torture, art. 8, para. 4; Convention on the Safety of United Nations and
Associated Personnel, art. 15, para. 4; International Convention for the Suppression of Terrorist
Bombings, art. 9, para. 4. Some recent treaties, however, have not contained such a provision. See, for
example, United Nations Convention against Transnational Organized Crime; United Nations
Convention against Corruption; International Convention for the Protection of All Persons from
Enforced Disappearance.
591 Yearbook … 1996, vol. II (Part Two), p. 32, art. 10, para. 4 (“Each of those crimes shall be treated, for
the purpose of extradition between States Parties, as if it had been committed not only in the place in
which it occurred but also in the territory of any other State Party”).
592 Ibid., p. 33 (para. (3) of the commentary to draft article 10).
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7, of the present draft articles and therefore decided that an express provision on this issue
was not necessary.
Extradition requests based on impermissible grounds

(27) Draft article 13, paragraph 11, makes clear that nothing in draft article 13 requires a
State to extradite an individual to a State where there are substantial grounds for believing
that the extradition request is being made on grounds that are universally recognized as
impermissible under international law. Such a provision appears in various multilateral 597
and bilateral treaties, 598 and in national laws, 599 that address extradition generally, and
appears in treaties addressing extradition with respect to specific crimes. 600
Convention against Transnational Organized Crime, and article 44, paragraph 15, of the
2003 United Nations Convention against Corruption, which both read as follows:
Nothing in this Convention shall be interpreted as imposing an obligation to
extradite if the requested State Party has substantial grounds for believing that the
request has been made for the purpose of prosecuting or punishing a person on
account of that person’s sex, race, religion, nationality, ethnic origin or political
opinions or that compliance with the request would cause prejudice to that person’s
position for any one of these reasons.
While modelled on this provision, the term “sex” in English was replaced by “gender”, and
the term “culture” was added to the list of factors, in line with the language used in draft
article 2, paragraph 1 (h). Further, the term “membership of a particular social group” was
added to the list, as in the 2006 International Convention for the Protection of All Persons
from Enforced Disappearance. 601 Paragraph 11 may be considered as one aspect of
guaranteeing to the alleged offender, at all stages, full protection of his or her rights under
international law, as required by draft article 11, paragraph 1. Indeed, there may be other
597 See, for example, European Convention on Extradition, art. 3, para. 2; Inter-American Convention on
Extradition, art. 4, para. 5.
598 See, for example, Extradition Agreement between the Government of the Republic of India and the
Government of the French Republic (Paris, 24 January 2003), art. 3, para. 3; Extradition Treaty
between the Government of the United States of America and the Government of the Republic of
South Africa, art. 4, para. 3; Treaty on Extradition between Australia and the Republic of Korea
(Seoul, 5 September 1990), art. 4, para. 1 (b); Treaty of Extradition between the Government of the
United Mexican States and the Government of Canada, art. IV (b). The United Nations Model Treaty
on Extradition at article 3 (b) contains such a provision. The Revised Manual on the Model Treaty on
Extradition, states at paragraph 47, that: “Subparagraph (b) … is a non-controversial paragraph, one
that has been used (sometimes in a modified form) in extradition treaties throughout the world”.
599 See, for example, the Extradition Law of the People’s Republic of China: Order of the President of
the People’s Republic of China, No. 42, adopted at the 19th Meeting of the Standing Committee of
the Ninth National People’s Congress on 28 December 2000, art. 8, para. 4 (“The request for
extradition made by a foreign State to the People’s Republic of China shall be rejected if … the
person sought is one against whom penal proceedings instituted or punishment may be executed for
reasons of that person’s race, religion, nationality, sex, political opinion or personal status, or that
person may, for any of those reasons, be subjected to unfair treatment in judicial proceedings”“); and
the United Kingdom Extradition Act, sect. 13 (“A person’s extradition … is barred by reason of
extraneous considerations if (and only if) it appears that (a) the Part 1 warrant issued in respect of him
(though purporting to be issued on account of the extradition offence) is in fact issued for the purpose
of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual
orientation or political opinions, or (b) if extradited he might be prejudiced at his trial or punished,
detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual
orientation or political opinions”).
600 See, for example, International Convention against the Taking of Hostages, art. 9; United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art. 6, para. 6;
International Convention for the Suppression of Terrorist Bombings, art. 12; International Convention
for the Suppression of the Financing of Terrorism, art. 15; International Convention for the Protection
of All Persons from Enforced Disappearance, art. 13, para. 7.
para. 7.
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reasons relating to full protection the alleged offender’s human rights that would preclude
extradition.
(29) Given that the present draft articles contain no obligation to extradite any individual,
paragraph 11, strictly speaking, is not necessary for an extradition occurring solely pursuant
to the present draft articles. Under the present draft articles, a State may decline to extradite
for any reason, so long as it submits the case to its own competent authorities for the
purpose of prosecution. Nevertheless, the paragraph may be of relevance if an extradition is
being requested pursuant to a State’s extradition treaties or national law and if such treaties
or law require extradition in certain circumstances. Paragraph 11 helps ensure that any
provision in such treaties or law that precludes extradition in circumstances such as those
described in paragraph 11 will remain unaffected by the present draft articles. As such, the
Commission considered it appropriate to include such a provision in the present draft
articles.
(30) Paragraph 11 is to be distinguished from draft article 5 on non-refoulement. The
latter provision broadly addresses any transfer of a person from one State to another. Such
transfers may well occur in a context where the person is not alleged to have committed
crimes against humanity or to have committed any crime at all. The focus of draft article 5
is on ensuring that the person is not transferred to a State if by doing so he or she would be
in danger of being subjected to a crime against humanity. To the extent that there is overlap
between draft article 5 and draft article 13, paragraph 11, with respect to the extradition of a
person, the difference between the two provisions may be explained as follows. Draft
article 5 is focused on preventing the extradition of any person for any alleged crime to a
place where he or she would be in danger of being subjected to a crime against humanity.
Draft article 13, paragraph 11, is focused on the extradition of a person alleged to have
committed a crime against humanity, and makes clear that the draft articles impose no
obligation on the requested State to extradite if it is believed that the request is being
pursued on grounds that are impermissible under international law.
Due consideration to the request of the State where the offence occurred
(31) Draft article 13, paragraph 12 requires that “due consideration” be given by the
requested State to a request for extradition from the State in the territory under whose
jurisdiction the alleged offence has occurred.
(32) The State where the alleged offence has occurred may be best placed to proceed
with a prosecution if it is the principal location of the victims, witnesses or other evidence
relating to the offence. In that regard, it has been observed that the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide is focused on prosecution of alleged
offenders “by a competent tribunal of the State in the territory of which the act was
committed, or by such international penal tribunal as may have jurisdiction with respect to
those Contracting Parties which shall have accepted its jurisdiction”.602 Additional Protocol
I to the 1949 Geneva Conventions contains a provision reading:
Subject to the rights and obligations established in the Conventions and in Article 85,
paragraph 1, of this Protocol, and when circumstances permit, the High Contracting
Parties shall co-operate in the matter of extradition. They shall give due
consideration to the request of the State in whose territory the alleged offence has
occurred.603
Moreover, the complementarity system of the Rome Statute, 604 in practice, often accords
deference to the State where the crime occurred (or the State of nationality of the alleged
offender, which is often the same) if that State is able and willing to exercise jurisdiction.
602 Convention on the Prevention and Punishment of the Crime of Genocide, art. VI (emphasis added).
604 Rome Statute, art. 17, para. 1 (“[T]he 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 …”).
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Consultations prior to refusal to extradite

(33) Draft article 13, paragraph 13, provides that, before the requested State refuses
extradition, it “shall, where appropriate, consult with the requesting State to provide it with
ample opportunity to present its opinions and to provide information relevant to its
allegation”. Such consultation may allow the requesting State to modify its request in a
manner that addresses the concerns of the requested State. The phrase “where appropriate”,
however, acknowledges that there may be times when the requested State is refusing
extradition but consultation is not appropriate, for example when the requested State has
decided to submit the case to its own competent authorities for the purpose of prosecution,
or when consultations are not possible due to reasons of confidentiality. Even so, it is
stressed that, in the context of the present draft articles, draft article 10 requires the
requested State, if it does not extradite, to submit the matter to its own prosecutorial
authorities.
(34) Paragraph 13 is modelled on the 2000 United Nations Convention against
Transnational Organized Crime 605 and the 2003 United Nations Convention against
Corruption,606 which both provide that, “[b]efore refusing extradition, the requested State
Party shall, where appropriate, consult with the requesting State Party to provide it with
ample opportunity to present its opinions and to provide information relevant to its
allegation”.
Multiple requests for extradition

(35) Treaties addressing extradition generally or in the context of specific crimes
typically do not seek to regulate which requesting State should have priority if there are
multiple requests for extradition. At the most, such instruments might acknowledge the
discretion of the requested State to determine whether to extradite and, if so, to which
requesting State. For example, the 1990 United Nations Model Treaty on Extradition, in
article 16, simply provides: “If a Party receives requests for extradition for the same person
from both the other Party and a third State it shall, at its discretion, determine to which of
those States the person is to be extradited”.607
(36) Consequently, in line with existing treaties, the Commission decided not to include a
provision in the present draft articles specifying a preferred outcome if there are multiple
requests, other than the obligation of “due consideration” set forth in paragraph 12. Even so,
when such a situation occurs, a State may benefit from considering various factors in
exercising its discretion. For example, the Código Orgánico Integral Penal (2014) of
Ecuador provides in section 405 that “la o el juzgador ecuatoriano podrá determinar la
jurisdicción que garantice mejores condiciones para juzgar la infracción penal, la
protección y reparación integral de la víctima” (“the judge may determine the jurisdiction
which guarantees better conditions to prosecute the criminal offence, the protection and the
integral reparation of the victim”).608 In the context of the European Union, relevant factors
include “the relative seriousness and place of the offences, the respective dates of the
European arrest warrants and whether the warrant has been issued for the purposes of
prosecution or for execution of a custodial sentence or detention order”.609
Dual criminality
(37) Extradition treaties typically contain a “dual criminality” requirement, whereby
obligations with respect to extradition only arise in circumstances where, for a specific
request, the conduct at issue is criminal in both the requesting State and the requested
State.610 Such a requirement is also sometimes included in treaties on a particular type of
607 United Nations Model Treaty on Extradition, art. 16.
608 Código Orgánico Integral Penal, section 405.
609 See, for example, Council framework decision of 13 June 2002, art. 16, para. 1.
610 See, for example, United Nations Office on Drugs and Crime, Revised Manuals on the Model Treaty
on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters, Part One: Revised
Manual on the Model Treaty on Extradition, p. 10, para. 20 (“The requirement of double criminality
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crime, if that treaty contains a combination of mandatory and non-mandatory offences, with
the result that the offences existing in any two States parties may differ. For example, the
2003 United Nations Convention against Corruption establishes both mandatory 611 and non-
mandatory612 offences relating to corruption.
(38) By contrast, treaties focused on a particular type of crime that only establish
mandatory offences typically do not contain a dual criminality requirement. Thus, treaties
such as the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and the 2006 International Convention for the Protection of All
Persons from Enforced Disappearance, which define specific offences and obligate States
parties to take the necessary measures to ensure that they constitute offences under national
criminal law, contain no dual criminality requirement in their respective extradition
provisions. The rationale for not doing so is that when an extradition request arises under
either convention, the offence should already be criminalized under the laws of both States
parties, such that there is no need to impose a dual criminality requirement. While there
may be some marginal differences as between two States in the manner by which their
national laws have incorporated the crime, imposing a dual criminality requirement is still
unnecessary since that requirement allows for such differences, so long as the crime in
substance exists in both jurisdictions. A further rationale is that treaties focused on a
particular type of crime typically do not contain an absolute obligation to extradite; rather,
they contain an aut dedere aut judicare obligation, whereby the requested State may always
choose not to extradite, so long as it submits the case to its competent authorities for
prosecution.
(39) The present draft articles on crimes against humanity define crimes against
humanity in draft article 2 and, based on that definition, mandate in draft article 6,
paragraphs 1 to 3, that the “offences” of “crimes against humanity” exist under the national
criminal law of each State.613 As such, when an extradition request from one State is sent to
another State for an offence covered by the present draft articles, the offence should be
criminal in both States, and therefore dual criminality is automatically satisfied. Moreover,
the aut dedere aut judicare obligation set forth in draft article 10 does not obligate States to
extradite; rather, the State can satisfy its obligation under draft article 10 by submitting the
case to its competent authorities for the purpose of prosecution. Consequently, the
Commission decided that there was no need to include in draft article 13 a dual criminality
requirement, such as appears in the first three paragraphs of article 44 of the 2003 United
Nations Convention against Corruption.
Article 14
Mutual legal assistance
1. States shall afford one another the widest measure of mutual legal assistance
in investigations, prosecutions and judicial proceedings in relation to the offences
covered by the present draft articles in accordance with this draft article.
2. In relation to the offences for which a legal person may be held liable in
accordance with draft article 6, paragraph 8, in the requesting State, mutual legal
assistance shall be afforded to the fullest extent possible under relevant laws, treaties,
agreements and arrangements of the requested State with respect to investigations,
prosecutions, judicial and other proceedings.
3. Mutual legal assistance to be afforded in accordance with this draft article
may be requested for any of the following purposes:
under the laws of both the requesting and requested States of the offence for which extradition is to be
granted is a deeply ingrained principle of extradition law”).
611 United Nations Convention against Corruption, arts. 15, 16, para. 1, and arts. 17, 23 and 25.
612 Ibid., arts. 16, para. 2, and arts. 18–22 and 24.
613 Draft article 2, paragraph 3, provides that the draft article is without prejudice to a broader definition
of crimes against humanity provided for in any national law. An extradition request based on a
broader definition than is contained in draft article 2, paragraphs 1 and 2, however, would not be
based on an offence covered by the present draft articles.
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(a) identifying and locating alleged offenders and, as appropriate, victims,

witnesses or others;
(b) taking evidence or statements from persons, including by video
conference;
(c) effecting service of judicial documents;
(d) executing searches and seizures;
(e) examining objects and sites, including obtaining forensic evidence;
(f) providing information, evidentiary items and expert evaluations;
(g) providing originals or certified copies of relevant documents and
records;
(h) identifying, tracing or freezing proceeds of crime, property,
instrumentalities or other things for evidentiary or other purposes;
(i) facilitating the voluntary appearance of persons in the requesting State;
or
(j) any other type of assistance that is not contrary to the national law of
the requested State.
4. States shall not decline to render mutual legal assistance pursuant to this draft
article on the ground of bank secrecy.
5. States shall consider, as may be necessary, the possibility of concluding
bilateral or multilateral agreements or arrangements that would serve the purposes of,
give practical effect to, or enhance the provisions of this draft article.
6. Without prejudice to its national law, the competent authorities of a State
may, without prior request, transmit information relating to crimes against humanity
to a competent authority in another State where they believe that such information
could assist the authority in undertaking or successfully concluding investigations,
prosecutions and judicial proceedings or could result in a request formulated by the
latter State pursuant to the present draft articles.
7. The provisions of this draft article shall not affect the obligations under any
other treaty, bilateral or multilateral, that governs or will govern, in whole or in part,
mutual legal assistance between the States in question.
8. The draft annex to the present draft articles shall apply to requests made
pursuant to this draft article if the States in question are not bound by a treaty of
mutual legal assistance. If those States are bound by such a treaty, the corresponding
provisions of that treaty shall apply, unless the States agree to apply the provisions
of the draft annex in lieu thereof. States are encouraged to apply the draft annex if it
facilitates cooperation.
9. States shall consider, as appropriate, entering into agreements or
arrangements with international mechanisms that are established by the United
Nations or by other international organizations and that have a mandate to collect
evidence with respect to crimes against humanity.
Commentary
(1) A State investigating or prosecuting an offence covered by the present draft articles
may wish to seek assistance from another State in gathering information and evidence,
including through documents, sworn declarations and oral testimony by victims, witnesses
or others. Cooperation on such matters is referred to as “mutual legal assistance”. Having a
legal framework regulating such assistance is useful for providing a predictable means for
cooperation between the requesting and requested State. For example, certain treaties have
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provisions relevant to mutual legal assistance with respect to the prosecution of war
crimes.614
(2) At present, there is no global or regional treaty addressing mutual legal assistance
specifically in the context of crimes against humanity. Rather, to the extent that cooperation
of this kind occurs, it does so through voluntary cooperation by States as a matter of comity
or, where they exist, bilateral or multilateral treaties addressing mutual legal assistance with
respect to crimes generally (referred to as mutual legal assistance treaties). While mutual
legal assistance relating to crimes against humanity can occur through such treaties, in
many instances there will be no mutual legal assistance treaty between the requesting and
requested States. 615 As is the case for extradition, any given State often has no treaty
relationship with a large number of other States on mutual legal assistance with respect to
crimes generally, so that when cooperation is needed with respect to crimes against
humanity, there is no legal framework in place to facilitate such cooperation.
(3) Draft article 14 seeks to provide that legal framework. Paragraphs 1 to 8 are
designed to address various important elements of mutual legal assistance that will apply
between the requesting and requested States, bearing in mind that in some instances there
may exist a mutual legal assistance treaty between those States, while in other instances
there may not. As discussed further below, draft article 14 and the draft annex both apply to
the requesting and requested States if there exists no mutual legal assistance treaty between
them. If there does exist a mutual legal assistance treaty between them, then that treaty
applies, except that: (a) if particular paragraphs of draft article 14 require the provision of a
higher level of assistance than is provided for under the other mutual legal assistance treaty,
then those paragraphs shall be applied as well; and (b) the draft annex additionally applies
if the requesting and requested States agree to use it to facilitate cooperation.
(4) The detailed provisions on mutual legal assistance appearing in draft article 14 and
in the draft annex also appear in several recent conventions addressing specific crimes.
While there is also precedent for less detailed provisions, 616 States appear attracted to the
more detailed provisions, as may be seen in the drafting history of the 2000 United Nations
Convention against Transnational Organized Crime. During the initial drafting, the article
on mutual legal assistance was a two-paragraph provision.617 The negotiating States decided
early on, 618 however, that this less detailed approach should be replaced with a more
detailed article based on article 7 of the 1988 United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances. 619 The result was the detailed
provisions of article 18 of the 2000 United Nations Convention against Transnational
Organized Crime, which were reproduced almost in their entirety in article 46 the 2003
614 See, for example, Additional Protocol I, art. 88, para. 1 (“The High Contracting Parties shall afford
one another the greatest measure of assistance in connexion with criminal proceedings brought in
respect of grave breaches of the Conventions or of this Protocol”); Second Protocol to the Hague
Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, art. 19,
para. 1 (“Parties shall afford one another the greatest measure of assistance in connection with
investigations or criminal or extradition proceedings brought in respect of the offences set forth in
Article 15, including assistance in obtaining evidence at their disposal necessary for the
proceedings”). See also ICRC, Commentary on the First Geneva Convention, 2016, paras. 2892–2893
(on article 49).
615 See Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances (United Nations publication, Sales No. E.98.XI.5), p. 185, para. 7.22
(finding that “[t]here are still … many States that are not parties to general mutual legal assistance
treaties and many circumstances in which no bilateral treaty governs the relationship between the pair
of States concerned in a particular matter”).
616 See, for example, Convention against Torture, art. 9; International Convention for the Suppression of
Terrorist Bombings, art. 10; International Convention for the Protection of All Persons from Enforced
Disappearance, art. 14.
617 See Commission on Crime Prevention and Criminal Justice, report of the Secretary-General on the
question of the elaboration of an International Convention against Organized Transnational Crime
(E/CN.15/1997/7/Add.1), p. 15.
618 Ibid. (suggestions of Australia and Austria).
619 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art.
7.
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United Nations Convention against Corruption. Comparable provisions may also be seen in
the 1999 International Convention for the Suppression of the Financing of Terrorism. 620
(5) The Commission decided that the more detailed provisions were best suited for draft
articles on crimes against humanity. Such provisions provide extensive guidance to States,
which is especially useful when there exists no mutual legal assistance treaty between the
requesting and requested States.621 Moreover, as was the case for the detailed provisions on
extradition contained in draft article 13, such provisions on mutual legal assistance have
proven acceptable to States. For example, as of mid-2019, the 2000 United Nations
Convention against Transnational Organized Crime has 190 States parties and the 2003
United Nations Convention against Corruption has 186 States parties. No State party has
made a reservation to the language or content of the mutual legal assistance article in either
convention. Additionally, such provisions are applied on a regular basis by national law
enforcement authorities, and have been explained in numerous guides and other resources,
such as those issued by the United Nations Office on Drugs and Crime.622
(6) Draft article 14 and the draft annex are modelled on article 46 of the 2003 United
Nations Convention against Corruption, but with some modifications. As a structural matter,
the Commission viewed it as useful to include in the body of the draft articles provisions
relevant whether or not the two States concerned had in place a mutual legal assistance
treaty, while placing in the draft annex provisions that only apply when there is no such
treaty (although, even if there is, application of the draft annex might be deemed useful to
facilitate cooperation). Doing so helps to preserve a sense of balance in the draft articles,
while grouping together in a single place (the draft annex) provisions automatically
applicable only in certain situations. In addition, as explained below, some of the provisions
of article 46 have been revised, relocated, or deleted.
(7) Draft article 14, paragraph 1, establishes a general obligation for States parties to
“afford one another the widest measure of mutual legal assistance” with respect to offences
arising under the present draft articles. The text is verbatim from article 46, paragraph 1, of
the 2003 United Nations Convention against Corruption, 623 except for the reference to
“offences covered by the present draft articles”. Importantly, States are obliged to afford
each other such assistance not just in “investigations” but also in “prosecutions” and
“judicial proceedings”. As such, the obligation is intended to ensure that the broad goals of
the present draft articles are furthered by comprehensive cooperation among States at all
stages of the law enforcement process.
(8) Draft article 14, paragraph 2, addresses such cooperation in the specific context of
the liability of legal persons, using a different standard than exists in paragraph 1. Such
cooperation is to occur only “to the fullest extent possible under relevant laws, treaties,
agreements and arrangements of the requested State”. This standard is a recognition that
national legal systems differ considerably in their treatment of legal persons in relation to
crimes, differences that also led to the language set forth in draft article 6, paragraph 8.
620 The mutual legal assistance provisions in the International Convention for the Suppression of the
Financing of Terrorism are scattered among several articles, many of which concern both mutual
assistance and extradition. See International Convention for the Suppression of the Financing of
Terrorism, art. 7, para. 5, and arts. 12–16. More commonly, mutual legal assistance provisions are
aggregated in a single article.
621 See United Nations Office on Drugs and Crime, State of Implementation of the United Nations
Convention against Corruption: Criminalization, Law Enforcement and International Cooperation
(New York, United Nations, 2nd ed., 2017), pp. 221–225.
622 See United Nations Office on Drugs and Crime, Revised Manuals on the Model Treaty on Extradition
and on the Model Treaty on Mutual Assistance in Criminal Matters, Part One: Revised Manual on
the Model Treaty on Extradition, para. 45.
623 United Nations Convention against Corruption, art. 46, para. 1 (“States Parties shall afford one
another the widest measure of mutual legal assistance in investigations, prosecutions and judicial
proceedings in relation to the offences covered by this Convention”). See also United Nations
Convention against Transnational Organized Crime, art. 18, para. 1; United Nations Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art. 7, para. 1; International
Convention for the Suppression of the Financing of Terrorism, art. 12, para. 1.
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Given those differences, mutual legal assistance in this context must be contingent on the
extent to which such cooperation is possible.
(9) The text of draft article 14, paragraph 2, is almost verbatim from article 46,
paragraph 2, of the 2003 United Nations Convention against Corruption, 624 but for three
changes. First, the final clause of article 46, paragraph 2, is moved up to the beginning of
draft article 14, paragraph 2, so as to make clear at the outset that this paragraph concerns
mutual legal assistance in relation to legal persons. Second, the cross-reference in that
clause has been adjusted as needed for these draft articles. Third, the words “and other”
have been added in “investigations, prosecutions, judicial and other proceedings”. This
third change was regarded as useful given that, under some national legal systems, other
types of proceedings might be relevant with respect to legal persons, such as administrative
proceedings.
(10) Draft article 14, paragraph 3, lists types of assistance that may be requested. The
phrase “any of the following purposes” means one or more of such purposes. These types
of assistance are drafted in broad terms and, in most respects, replicate the types of
assistance listed in many multilateral 625 and bilateral 626 mutual legal assistance treaties.
Indeed, such terms are broad enough to encompass the range of assistance that might be
relevant for the investigation and prosecution of a crime against humanity, including the
seeking of: police and security agency records; court files; citizenship, immigration, birth,
marriage, and death records; health records; forensic material; and biometric data. The list
is not exhaustive, as it provides in subparagraph (j) a catch-all provision relating to “any
other type of assistance that is not contrary to the national law of the requested State”.
Convention against Corruption. Under that Convention, any existing bilateral mutual legal
assistance treaty between States parties that lack the forms of cooperation listed in
paragraph 3 are generally considered “as being automatically supplemented by those forms
of cooperation”. 627 The Commission made some modifications to the text of article 46,
paragraph 3, for the purposes of draft article 14, paragraph 3, given that the focus of the
present draft articles is on crimes against humanity, rather than on corruption.
624 United Nations Convention against Corruption, art. 46, para. 2 (“Mutual legal assistance shall be
afforded to the fullest extent possible under relevant laws, treaties, agreements and arrangements of
the requested State Party with respect to investigations, prosecutions and judicial proceedings in
relation to the offences for which a legal person may be held liable in accordance with article 26 of
this Convention in the requesting State Party”). During the negotiations for the 2000 United Nations
Convention against Transnational Organized Crime, the issue of the variety of national practice on the
question of liability of legal persons, particularly in criminal cases, led several delegations to propose
a specific mutual legal assistance provision on legal persons, which was ultimately adopted as
paragraph 2 of article 18. During the later negotiation of the 2003 United Nations Convention against
Corruption, three proposals were put forward for the provision on mutual legal assistance, one of
which failed to include an express provision on mutual legal assistance regarding legal persons. See
United Nations Office on Drugs and Crime, Travaux Préparatoires of the Negotiation for the
Elaboration of the United Nations Convention against Corruption (New York, United Nations, 2010),
pp. 374–377, footnote 5. By the second negotiating meeting, that proposal was dropped from
consideration (ibid., p. 378, footnote 7), leading ultimately to the adoption of paragraph 2 of article
46.
625 See, for example, Inter-American Convention on Mutual Assistance in Criminal Matters (Nassau, 23
May 1992), Organization of American States, Treaty Series, No. 75, art. 7; Association of Southeast
Asian Nations (ASEAN) Treaty on Mutual Legal Assistance in Criminal Matters (Kuala Lumpur, 29
November 2004), United Nations, Treaty Series, vol. 2336, No. 41878, p. 271, art. 1, para. 2; United
Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art. 7, para.
2; United Nations Convention against Transnational Organized Crime, art. 18, para. 3.
626 See, for example, United Nations Model Treaty on Mutual Assistance in Criminal Matters, General
Assembly resolution 45/117 of 14 December 1990 (as subsequently amended by General Assembly
resolution 53/112 of 9 December 1998), annex, art. 1, para. 2; Treaty between the United States of
America and the Russian Federation on Mutual Legal Assistance in Criminal Matters (Moscow, 17
June 1999), United Nations, Treaty Series, vol. 2916, No. 50780, art. 2.
627 Legislative Guide for the Implementation of the United Nations Convention against Corruption, p.
170, para. 605 (advising also that under some national legal systems, amending legislation may be
required to incorporate additional bases of cooperation).
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(12) In that regard, a new subparagraph (a) was added to highlight mutual legal
assistance for the purpose of “identifying and locating alleged offenders and, as appropriate,
victims, witnesses or others”. The phrase “as appropriate” recognizes that privacy concerns
should be considered with respect to such persons, while the phrase “others” should be
understood as including experts or other individuals helpful to the investigation or
prosecution of an alleged offender. Subparagraph (b) was also modified to include the
possibility of a State providing mutual legal assistance through video conferencing for
purposes of obtaining testimony or other evidence from persons. This modification was
considered appropriate given the growing use of such testimony and its particular
advantages for transnational law enforcement, as is also recognized in paragraph 16 of the
draft annex.628 Subparagraph (e), which allows a State to request mutual legal assistance in
“examining objects and sites”, was modified to emphasize the ability to collect forensic
evidence relating to crimes against humanity, given the importance of such evidence (such
as exhumation and examination of grave sites) in investigating fully such crimes.
(13) Subparagraph (g), which allows a State to request assistance in obtaining “originals
or certified copies of relevant documents and records”, was modified to delete the
illustrative list contained in the 2003 United Nations Convention against Corruption; 629 that
list was viewed as unduly focused on financial records. While such records may be relevant
with respect to crimes against humanity, other types of records (such as death certificates
and police reports) are likely to be just as, if not more, relevant. Similarly, two types of
assistance listed in the 2003 United Nations Convention against Corruption – at
subparagraphs (j) and (k)630 – were not included, as they refer to that Convention’s detailed
provisions on asset recovery, which are not included in the present draft articles.
(14) Although the 2003 United Nations Convention against Corruption lists together
“[e]xecuting searches and seizures, and freezing”,631 the Commission deemed it appropriate
to move the word “freezing” to subparagraph (h), which deals with proceeds of the crime,
so as to read “identifying, tracing or freezing proceeds of crime, property, instrumentalities
or other things for evidentiary or other purposes”. The words “or other purposes” were
added so as to capture purposes that are not evidentiary in nature, such as restitution of
property to victims.
(15) Draft article 14, paragraph 4, provides that States “shall not decline to render mutual
legal assistance pursuant to this draft article on the ground of bank secrecy”. This same
language is used in article 46, paragraph 8, of the 2003 United Nations Convention against
Corruption 632 and similar language appears in other multilateral and bilateral treaties on
mutual legal assistance.633 While such a provision may not be commonly needed for the
present draft articles, given that the offences at issue are not likely to be financial in nature,
a crime against humanity can entail a situation where assets are stolen, and where mutual
legal assistance regarding those assets might be valuable, not just for proving the crime but
also for the recovery and return of those assets to the victims. While the reference is to
628 Paragraph 16 permits a State to allow a “hearing to take place by video conference if it is not possible
or desirable for the individual in question to appear in person in territory under the jurisdiction of the
requesting State”. This paragraph is based on paragraph 18 of article 46 of the 2003 United Nations
Convention against Corruption.
629 United Nations Convention against Corruption, art. 46, para. 3 (“(f) Providing originals or certified
copies of relevant documents and records, including government, bank, financial, corporate or
business records”).
630 Ibid., art. 46, para. 3 (“(j) Identifying, freezing and tracing proceeds of crime in accordance with the
provisions of chapter V of this Convention; (k) The recovery of assets, in accordance with the
provisions of chapter V of this Convention”).
631 Ibid., art. 46, para. 3 (c).
632 See Legislative Guide for the Implementation of the United Nations Convention against Corruption,
pp. 171, paras. 611–12; State of Implementation of the United Nations Convention against
Corruption, pp. 228–229.
633 See, for example, United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, art. 7, para. 5; United Nations Convention against Transnational Organized
Crime, art. 18, para. 8; International Convention for the Suppression of the Financing of Terrorism,
art. 12, para. 2; Model Treaty on Mutual Assistance in Criminal Matters, art. 4, para. 2; ASEAN
Treaty on Mutual Legal Assistance in Criminal Matters, art. 3, para. 5.
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“bank” secrecy, the provision is intended to cover all financial institutions whether or not
technically regarded as a bank.634
(16) Draft article 14, paragraph 5, provides that “States shall consider, as may be
necessary, the possibility of concluding bilateral or multilateral agreements or arrangements
that would serve the purposes of, give practical effect to, or enhance the provisions of this
draft article”. While this provision, which is based on article 46, paragraph 30, of the 2003
United Nations Convention against Corruption, 635 does not obligate States to take any
particular action in this regard, it encourages States to consider concluding additional
multilateral or bilateral treaties to improve the implementation of article 14.
(17) Draft article 14, paragraph 6, acknowledges that a State may transmit information to
another State, even in the absence of a formal request, if it is believed that doing so could
assist the latter in undertaking or successfully concluding investigations, prosecutions and
judicial proceedings, or might lead to a formal request by the latter State. Though
innovative when first used in the 2000 United Nations Convention against Transnational
Organized Crime,636 this provision was replicated in article 46, paragraph 4, of the 2003
United Nations Convention against Corruption. The provision is stated in discretionary
terms, providing that a State “may” transmit information, and is further conditioned by the
clause “without prejudice to national law”. In practice, States frequently engage in such
informal exchanges of information.637
(18) In both the 2000 United Nations Convention against Transnational Organized Crime
and the 2003 United Nations Convention against Corruption, there is a further provision
providing more detail as to the treatment of transmitted information. 638 While such details
may be useful in some circumstances, for the purposes of the present draft articles the
Commission deemed draft article 14, paragraph 6, to be sufficient in providing a basis for
such cooperation.
(19) Draft article 14, paragraph 7, addresses the relationship of draft article 14 to any
mutual legal assistance treaty existing between the requesting and requested States.
Paragraph 7 makes clear that the “provisions of this draft article shall not affect the
obligations under any other treaty, bilateral or multilateral, that governs or will govern, in
whole or in part, mutual legal assistance between the States in question”. In other words,
the obligations contained in any other mutual legal assistance treaty in place between the
two States continue to apply,639 notwithstanding the existence of draft article 14. At the
634 The Model Treaty on Mutual Assistance in Criminal Matters refers to not refusing assistance on the
ground of secrecy of “banks and similar financial institutions”. Model Treaty on Mutual Assistance in
Criminal Matters, art. 4, para. 2. Most treaties, however, refer solely to “bank secrecy”, which is
interpreted as covering other financial institutions as well. See, for example, State of Implementation
of the United Nations Convention against Corruption, pp. 183–184.
635 United Nations Convention against Corruption, art. 46, para. 30. See United Nations Convention
against Transnational Organized Crime, art. 18, para. 30; United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, art. 7, para. 20.
637 State of Implementation of the United Nations Convention against Corruption, p. 227–228.
638 United Nations Convention against Transnational Organized Crime, art. 18, para. 5; United Nations
Convention against Corruption, art. 46, para. 5. During the adoption of the United Nations
Convention against Transnational Organized Crime, an official interpretative note indicated that: “(a)
when a State Party is considering whether to spontaneously provide information of a particularly
sensitive nature or is considering placing strict restrictions on the use of information thus provided, it
is considered advisable for the State Party concerned to consult with the potential receiving State
beforehand; (b) when a State Party that receives information under this provision already has similar
information in its possession, it is not obliged to comply with any restrictions imposed by the
transmitting State”. See Interpretative notes for the official records (travaux préparatoires) of the
negotiation of the United Nations Convention against Transnational Organized Crime and the
Protocols thereto (A/55/383/Add.1), para. 37.
639 Para. (1) of the commentary to art. 10, Yearbook…1972, vol. II, p. 321 (asserting that, with respect to
a similar provision in the draft articles on the prevention and punishment of crimes against diplomatic
agents and other internationally protected persons: “Mutual assistance in judicial matters has been a
question of constant concern to States and is the subject of numerous bilateral and multilateral
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same time, if particular paragraphs of draft article 14 require the provision of a higher level
of assistance than is provided for under the other mutual legal assistance treaty, then the
obligations set forth in those paragraphs shall be applied as well. 640 This provision draws
upon the language of earlier treaties addressing crimes. 641
(20) Draft article 14, paragraph 8, addresses the application of the draft annex, which is
an integral part of the present draft articles. Paragraph 8, which is based on article 46,
paragraph 7, of the 2003 United Nations Convention against Corruption, 642 provides that the
draft annex applies when there exists no mutual legal assistance treaty between the
requesting and requested State. As such, the draft annex does not apply when there exists a
mutual legal assistance treaty between the requesting and requested State. Even so,
paragraph 8 notes that the two States could agree to apply the provisions of the draft annex
if they wish to do so, and are so encouraged if doing so facilitates cooperation.
(21) Draft article 14, paragraph 9, provides that “States shall consider, as appropriate,
entering into agreements or arrangements with international mechanisms that are
established by the United Nations or by other international organizations and that have a
mandate to collect evidence with respect to crimes against humanity”. A precedent for
addressing cooperation between States and the United Nations in situations where serious
crimes are being committed can be found in Additional Protocol I to the 1949 Geneva
Conventions. 643 While paragraph 9 is not concerned with the “horizontal” mutual legal
assistance between States that is the primary focus of draft article 14, such cooperation
regarding punishment is important and would complement the cooperation between States
and international organizations addressed in draft article 4 in the context of prevention. It
has been noted that some States require statutory authority or a formal framework in order
to cooperate with such international mechanisms. 644 Paragraph 9 encourages States to
consider concluding agreements or arrangements in order to allow for such cooperation.
Like paragraph 5 of this draft article, however, paragraph 9 does not obligate States to take
any particular action in this regard.
(22) Paragraph 9 is not directed at the cooperation of States with international criminal
courts or tribunals, which have a mandate to prosecute alleged offenders. Such cooperation
remains governed by the constituent instruments of, and the legal relationship of any given
State to, those courts or tribunals.
(23) As was the case with respect to draft article 13 on extradition, the Commission
decided that there was no need to include in draft article 14 a dual criminality requirement,
such as appears in article 46, paragraph 9, of the 2003 United Nations Convention against
treaties. The obligations arising out of any such treaties existing between States party to the present
draft are fully preserved under this article”).
640 See, for example, Commentary on the United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, p. 184, para. 7.20 (regarding article 7, paragraph 6: “[W]here the
Convention requires the provision of a higher level of assistance in the context of illicit trafficking
than is provided for under the terms of an applicable bilateral or multilateral mutual legal assistance
treaty, the provisions of the Convention will prevail.”).
641 United Nations Convention against Corruption, art. 46, para. 6. (“The provisions of this article shall
not affect the obligations under any other treaty, bilateral or multilateral, that governs or will govern,
in whole or in part, mutual legal assistance”). See also United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, art. 7, para. 6; United Nations Convention
against Transnational Organized Crime, art. 18, para. 6.
642 See United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
art. 7, para. 7; United Nations Convention against Transnational Organized Crime, art.18, para. 7. See
also Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, p. 185, para. 7.23; Legislative Guide for the Implementation of the United
Nations Convention against Corruption, p. 171, para. 608.
643 Additional Protocol I, art. 89 (“In situations of serious violations of the Conventions or of this
Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with
the United Nations and in conformity with the United Nations Charter”).
644 See Report of the International, Impartial and Independent Mechanism to Assist in the Investigation
and Prosecution of Persons Responsible for the Most Serious Crimes under International Law
Committed in the Syrian Arab Republic since March 2011 (A/73/295), para. 39.
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Corruption.645 As previously noted, the present draft articles on crimes against humanity
define crimes against humanity in draft article 2 and, based on that definition, mandate in
draft article 6, paragraphs 1 to 3, that the “offences” of “crimes against humanity” exist
under national criminal laws of each State. As such, dual criminality should automatically
be satisfied in the case of a request for mutual legal assistance under the present draft
articles.
Article 15
Settlement of disputes
1. States shall endeavour to settle disputes concerning the interpretation or
application of the present draft articles through negotiations.
2. Any dispute between two or more States concerning the interpretation or
application of the present draft articles that is not settled through negotiation shall, at
the request of one of those States, be submitted to the International Court of Justice,
unless those States agree to submit the dispute to arbitration.
3. Each State may declare that it does not consider itself bound by paragraph 2
of this draft article. The other States shall not be bound by paragraph 2 of this draft
article with respect to any State that has made such a declaration.
4. Any State that has made a declaration in accordance with paragraph 3 of this
draft article may at any time withdraw that declaration.
Commentary
(1) Draft article 15 addresses the settlement of disputes concerning the interpretation or
application of the present draft articles. There is currently no obligation upon States to
resolve disputes arising between them specifically in relation to the prevention and
punishment of crimes against humanity. To the extent that such disputes are addressed, it
occurs in the context of an obligation relating to dispute settlement that is not specific to
such crimes.646 Crimes against humanity also have been mentioned in the European Court
of Human Rights and the Inter-American Court of Human Rights when evaluating issues
such as fair trial rights,647 ne bis in idem,648 nullum crimen, nulla poena sine praevia lege
poenali649 and the legality of amnesty provisions. 650
645 United Nations Convention against Corruption, art. 46, para. 9. See Legislative Guide for the
Implementation of the United Nations Convention against Corruption, p. 172, para. 616 (“States
parties still have the option to refuse such requests on the basis of lack of dual criminality. At the
same time, to the extent this is consistent with the basic concepts of their legal system, States parties
are required to render assistance involving non-coercive action”).
646 For example, crimes against humanity arose before the International Court of Justice in the context of
counter-claims filed by Italy in the case brought by Germany under the 1957 European Convention
for the Peaceful Settlement of Disputes. Jurisdictional Immunities of the State (Germany v. Italy),
Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 310, at pp. 311–312, para. 3. In that
instance, however, the Court found that, since the counterclaim by Italy related to facts and situations
existing prior to the entry into force of the European Convention for the Peaceful Settlement of
Disputes of 29 April 1957, they fell outside the scope of the Court’s jurisdiction. Ibid., pp. 320–321,
para. 30.
647 Streletz, Kessler and Krenz v. Germany, Application Nos. 34044/96, 35532/97 and 44801/98,
Judgment of 22 March 2001, Grand Chamber, European Court of Human Rights, ECHR 2001-II
(concurring opinion of Judge Loucaides); and K.-H. W. v. Germany, Application No. 37201/97,
Judgment of 22 March 2001, Grand Chamber, European Court of Human Rights, ECHR 2001-II
(extracts) (concurring opinion of Judge Loucaides).
648 Almonacid-Arellano, Judgment, 26 September 2006 (see footnote 24 above), para. 154.
649 Kolk and Kislyiy v. Estonia, Application Nos. 23052/04 and 24018/04, Decision on admissibility of
17 January 2006, Fourth Section, European Court of Human Rights, ECHR 2006-1.
650 Barrios Altos v. Peru, Judgment of 14 March 2001 (see footnote 479 above) (concurring opinion of
Judge Sergio García-Ramírez), para. 13; Gelman v. Uruguay, Judgment of 24 February 2011 (Merits
and Reparations), Inter-American Court of Human Rights, Series C, No. 221, paras. 198 and 210; and
Marguš v. Croatia (see footnote 479 above), paras. 130–136.
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(2) Draft article 15, paragraph 1, provides that “States shall endeavour to settle disputes
concerning the interpretation or application of the present draft articles through
negotiations”. This text is modelled on article 66, paragraph 1, of the 2003 United Nations
Convention against Corruption. 651 The travaux préparatoires relating to the comparable
provision of the 2000 United Nations Convention against Transnational Organized Crime
indicate that such a provision “is to be understood in a broad sense to indicate an
encouragement to States to exhaust all avenues of peaceful settlement of disputes, including
conciliation, mediation and recourse to regional bodies”.652
(3) Draft article 15, paragraph 2, provides that a dispute concerning the interpretation or
application of the present draft articles that “is not settled through negotiation” shall be
submitted to compulsory dispute settlement. Although there is no prescribed means or
period of time for pursuing such negotiation, a State should make a genuine attempt at
negotiation653 and not simply protest the conduct of the other State.654 If negotiation fails,
most treaties addressing crimes within national law oblige an applicant State to pursue
arbitration prior to submission of the dispute to the International Court of Justice. 655 The
Commission, however, deemed it appropriate in the context of the present draft articles,
which address crimes against humanity, to provide for immediate resort to the International
Court of Justice, unless the two States agree to submit the matter to arbitration. The 1948
Convention on the Prevention and Punishment of the Crime of Genocide likewise provides
for immediate resort to the International Court of Justice for dispute settlement. 656
651 See also United Nations Convention against Transnational Organized Crime, art. 35, para. 1; Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime, art. 15, para.
1.
652 Ad hoc Committee on the Elaboration of a Convention against Transnational Organized Crime,
Official Records (travaux préparatoires) of the negotiation of the United Nations Convention against
Transnational Organized Crime, Tenth session, Vienna, 17–28 July 2000 (A/AC.254/33), para. 34.
653 For analysis of similar provisions, see Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, p. 70, at p. 132, para. 157 (finding that there must be, “at the very
least[,] a genuine attempt by one of the disputing parties to engage in discussions with the other
disputing party, with a view to resolving the dispute”); ibid., p. 133, para. 159 (“the precondition of
negotiation is met only when there has been a failure of negotiations, or when negotiations have
become futile or deadlocked”); Questions relating to the Obligation to Prosecute or Extradite
(footnote 23 above), at pp. 445–446, para. 57 (“The requirement … could not be understood as
referring to a theoretical impossibility of reaching a settlement”.); South West Africa Cases (Ethiopia
v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p.
319, at p. 345 (the requirement implies that “no reasonable probability exists that further negotiations
would lead to a settlement”).
654 See, for example, Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 2006, p. 6, at pp. 40–41, para. 91.
655 See, for example, Convention for the Suppression of Unlawful Seizure of Aircraft, art. 12, para. 1;
including Diplomatic Agents, art. 13, para. 1; International Convention against the Taking of
Hostages, art. 16, para. 1; Convention against Torture, art. 30, para. 1; Convention on the Safety of
United Nations and Associated Personnel, art. 22, para. 1; International Convention for the
Suppression of Terrorist Bombings, art. 20, para. 1; International Convention for the Suppression of
the Financing of Terrorism, art. 24, para. 1; United Nations Convention against Transnational
Organized Crime, art. 35, para. 2; Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime, art. 15, para. 2; United Nations Convention against Corruption, art.
66, para. 2. Article 22 of the International Convention on the Elimination of All Forms of Racial
Discrimination requires the dispute to be submitted first to the Committee on the Elimination of
Racial Discrimination, which in turn may place the matter before an ad hoc conciliation commission.
International Convention on the Elimination of All Forms of Racial Discrimination, arts. 11–13 and
22.
656 Convention on the Prevention and Punishment of the Crime of Genocide, art. IX. See also OAU
Convention on the Prevention and Combating of Terrorism, art. 22, para. 2.
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(4) Draft article 15, paragraph 3, provides that a “State may declare that it does not
consider itself bound by paragraph 2”, in which case “other States shall not be bound by
paragraph 2” with respect to that State. Most treaties that address crimes under national law
and that provide for inter-State dispute settlement allow a State party to opt out of
compulsory dispute settlement.657 For example, article 66, paragraph 3, of the 2003 United
Nations Convention against Corruption provides that “[e]ach State Party may, at the time of
signature, ratification, acceptance or approval of or accession to this Convention, declare
that it does not consider itself bound by paragraph 2 of this article. The other States Parties
shall not be bound by paragraph 2 of this article with respect to any State Party that has
made such a reservation”. As previously noted, as of mid-2019 there are 186 States parties
to the 2003 United Nations Convention against Corruption; of those, more than 40 States
parties have communicated that they do not consider themselves bound by paragraph 2 of
article 66.658
(5) Treaties containing such a provision typically specify that the declaration may be
made no later than at the time of the expression by the State of consent to be bound by the
treaty. In accordance with the Commission’s practice, and in advance of a decision by
States as to whether to use these draft articles as the basis for a convention, the Commission
has not included in the present draft articles language characteristic of treaties (for example,
that such a declaration shall be made by a State party no later than at the time of the State’s
ratification, acceptance, approval, or accession to the convention).
(6) Draft article 15, paragraph 4, provides that “[a]ny State that has made a declaration
in accordance with paragraph 3 of this draft article may at any time withdraw that
declaration”. Recent treaties that address crimes under national law and that provide for
inter-State dispute settlement also contain such a provision. 659 For example, article 66,
paragraph 4, of the 2003 United Nations Convention against Corruption provides: “Any
State Party that has made a reservation in accordance with paragraph 3 of this article may at
any time withdraw that reservation by notification to the Secretary-General of the United
Nations”.
Annex
1. This draft annex applies in accordance with draft article 14, paragraph 8.
2. Each State shall designate a central authority that shall have the responsibility
and power to receive requests for mutual legal assistance and either to execute them
or to transmit them to the competent authorities for execution. Where a State has a
special region or territory with a separate system of mutual legal assistance, it may
657 See, for example, Convention for the Suppression of Unlawful Seizure of Aircraft, art. 12, para. 2;
including Diplomatic Agents, art. 13, para. 2; International Convention against the Taking of
Hostages, art. 16, para. 2; Convention against Torture, art. 30, para. 2; Convention on the Safety of
United Nations and Associated Personnel, art. 22, para. 2; International Convention for the
Suppression of Terrorist Bombings, art. 20, para. 2; International Convention for the Suppression of
the Financing of Terrorism, art. 24, para. 2; United Nations Convention against Transnational
Organized Crime, art. 35, para. 3; Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime, art. 15, para. 3; International Convention for the Protection of All
Persons from Enforced Disappearance, art. 42, para. 2.
658 The European Union also filed a declaration to article 66, paragraph 2, stating: “With respect to
Article 66, paragraph 2, the Community points out that, according to Article 34, paragraph 1, of the
Statute of the International Court of Justice, only States may be parties before that Court. Therefore,
under Article 66, paragraph 2, of the Convention, in disputes involving the Community, only dispute
settlement by way of arbitration will be available”.
659 See, for example, United Nations Convention against Transnational Organized Crime, art. 35, para. 4;
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime, art. 15, para.
4; International Convention for the Protection of All Persons from Enforced Disappearance, art. 42,
para. 3.
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designate a distinct central authority that shall have the same function for that region
or territory. Central authorities shall ensure the speedy and proper execution or
transmission of the requests received. Where the central authority transmits the
request to a competent authority for execution, it shall encourage the speedy and
proper execution of the request by the competent authority. The Secretary-General
of the United Nations shall be notified by each State of the central authority
designated for this purpose. Requests for mutual legal assistance and any
communication related thereto shall be transmitted to the central authorities
designated by the States. This requirement shall be without prejudice to the right of
a State to require that such requests and communications be addressed to it through
diplomatic channels and, in urgent circumstances, where the States agree, through
the International Criminal Police Organization, if possible.
3. Requests shall be made in writing or, where possible, by any means capable
of producing a written record, in a language acceptable to the requested State, under
conditions allowing that State to establish authenticity. The Secretary-General of the
United Nations shall be notified by each State of the language or languages
acceptable to that State. In urgent circumstances and where agreed by the States,
requests may be made orally, but shall be confirmed in writing forthwith.
4. A request for mutual legal assistance shall contain:
(a) the identity of the authority making the request;
(b) the subject matter and nature of the investigation, prosecution or
judicial proceeding to which the request relates and the name and functions of the
authority conducting the investigation, prosecution or judicial proceeding;
(c) a summary of the relevant facts, except in relation to requests for the
purpose of service of judicial documents;
(d) a description of the assistance sought and details of any particular
procedure that the requesting State wishes to be followed;
(e) where possible, the identity, location and nationality of any person
concerned; and
(f) the purpose for which the evidence, information or action is sought.
5. The requested State may request additional information when it appears
necessary for the execution of the request in accordance with its national law or
when it can facilitate such execution.
6. A request shall be executed in accordance with the national law of the
requested State and, to the extent not contrary to the national law of the requested
State and where possible, in accordance with the procedures specified in the request.
7. The requested State shall execute the request for mutual legal assistance as
soon as possible and shall take as full account as possible of any deadlines suggested
by the requesting State and for which reasons are given, preferably in the request.
The requested State shall respond to reasonable requests by the requesting State on
progress of its handling of the request. The requesting State shall promptly inform
the requested State when the assistance sought is no longer required.
8. Mutual legal assistance may be refused:
(a) if the request is not made in conformity with the provisions of this
draft annex;
(b) if the requested State considers that execution of the request is likely
to prejudice its sovereignty, security, ordre public or other essential interests;
(c) if the authorities of the requested State would be prohibited by its
national law from carrying out the action requested with regard to any similar
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offence, had it been subject to investigation, prosecution or judicial proceedings

under their own jurisdiction;
(d) if it would be contrary to the legal system of the requested State
relating to mutual legal assistance for the request to be granted.
9. Reasons shall be given for any refusal of mutual legal assistance.
10. Mutual legal assistance may be postponed by the requested State on the
ground that it interferes with an ongoing investigation, prosecution or judicial
proceeding.
11. Before refusing a request pursuant to paragraph 8 of this draft annex or
postponing its execution pursuant to paragraph 10 of this draft annex, the requested
State shall consult with the requesting State to consider whether assistance may be
granted subject to such terms and conditions as it deems necessary. If the requesting
State accepts assistance subject to those conditions, it shall comply with the
conditions.
12. The requested State:
(a) shall provide to the requesting State copies of government records,
documents or information in its possession that under its national law are available
to the general public; and
(b) may, at its discretion, provide to the requesting State in whole, in part
or subject to such conditions as it deems appropriate, copies of any government
records, documents or information in its possession that under its national law are
not available to the general public.
13. The requesting State shall not transmit or use information or evidence
furnished by the requested State for investigations, prosecutions or judicial
proceedings other than those stated in the request without the prior consent of the
requested State. Nothing in this paragraph shall prevent the requesting State from
disclosing in its proceedings information or evidence that is exculpatory to an
accused person. In the latter case, the requesting State shall notify the requested
State prior to the disclosure and, if so requested, consult with the requested State. If,
in an exceptional case, advance notice is not possible, the requesting State shall
inform the requested State of the disclosure without delay.
14. The requesting State may require that the requested State keep confidential
the fact and substance of the request, except to the extent necessary to execute the
request. If the requested State cannot comply with the requirement of confidentiality,
it shall promptly inform the requesting State.
15. Without prejudice to the application of paragraph 19 of this draft annex, a
witness, expert or other person who, at the request of the requesting State, consents
to give evidence in a proceeding or to assist in an investigation, prosecution or
judicial proceeding in territory under the jurisdiction of the requesting State shall not
be prosecuted, detained, punished or subjected to any other restriction of his or her
personal liberty in that territory in respect of acts, omissions or convictions prior to
his or her departure from territory under the jurisdiction of the requested State. Such
safe conduct shall cease when the witness, expert or other person having had, for a
period of fifteen consecutive days or for any period agreed upon by the States from
the date on which he or she has been officially informed that his or her presence is
no longer required by the judicial authorities, an opportunity of leaving, has
nevertheless remained voluntarily in territory under the jurisdiction of the requesting
State or, having left it, has returned of his or her own free will.
16. Wherever possible and consistent with fundamental principles of national law,
when an individual is in territory under the jurisdiction of a State and has to be heard
as a witness or expert by the judicial authorities of another State, the first State may,
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at the request of the other, permit the hearing to take place by video conference if it
is not possible or desirable for the individual in question to appear in person in
territory under the jurisdiction of the requesting State. States may agree that the
hearing shall be conducted by a judicial authority of the requesting State and
attended by a judicial authority of the requested State.
17. A person who is being detained or is serving a sentence in the territory under
the jurisdiction of one State whose presence in another State is requested for
purposes of identification, testimony or otherwise providing assistance in obtaining
evidence for investigations, prosecutions or judicial proceedings in relation to
offences covered by the present draft articles, may be transferred if the following
conditions are met:
(a) the person freely gives his or her informed consent; and
(b) the competent authorities of both States agree, subject to such
conditions as those States may deem appropriate.
18. For the purposes of paragraph 17 of this draft annex:
(a) the State to which the person is transferred shall have the authority
and obligation to keep the person transferred in custody, unless otherwise requested
or authorized by the State from which the person was transferred;
(b) the State to which the person is transferred shall without delay
implement its obligation to return the person to the custody of the State from which
the person was transferred as agreed beforehand, or as otherwise agreed, by the
competent authorities of both States;
(c) the State to which the person is transferred shall not require the State
from which the person was transferred to initiate extradition proceedings for the
return of the person; and
(d) the person transferred shall receive credit for service of the sentence
being served from the State from which he or she was transferred for time spent in
the custody of the State to which he or she was transferred.
19. Unless the State from which a person is to be transferred in accordance with
paragraphs 17 and 18 of this draft annex so agrees, that person, whatever his or her
nationality, shall not be prosecuted, detained, punished or subjected to any other
restriction of his or her personal liberty in territory under the jurisdiction of the State
to which that person is transferred in respect of acts, omissions or convictions prior
to his or her departure from territory under the jurisdiction of the State from which
he or she was transferred.
Costs
20. The ordinary costs of executing a request shall be borne by the requested
State, unless otherwise agreed by the States concerned. If expenses of a substantial
or extraordinary nature are or will be required to fulfil the request, the States shall
consult to determine the terms and conditions under which the request will be
executed, as well as the manner in which the costs shall be borne.
Commentary
(1) As indicated in draft article 14, paragraph 8, both draft article 14 and the draft annex
apply to the requesting and requested States if there exists no mutual legal assistance treaty
between them. If there does exist a mutual legal assistance treaty between them, then the
draft annex additionally applies only if the requesting and requested States choose to apply
it so as to facilitate cooperation.
(2) The draft annex is an integral part of the draft articles. Consequently, paragraph 1 of
the draft annex provides that the draft annex “applies in accordance with draft article 14,
paragraph 8”.
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(3) Paragraph 2 of the draft annex requires the State to designate a central authority
responsible for handling incoming and outgoing requests for assistance and to notify the
Secretary-General of the United Nations of the chosen central authority. In designating a
“central authority”, the focus is not on the geographical location of the authority, but rather
its centralized institutional role with respect to the State or a region thereof. 660 This
paragraph is based on article 46, paragraph 13, of the 2003 United Nations Convention
against Corruption. 661 As of 2017, all but eight States parties to that convention had
designated a central authority.662

(4) Paragraphs 3 to 5 of the draft annex address the procedures by which a State makes
a request to another State for mutual legal assistance.
(5) Paragraph 3 of the draft annex stipulates that requests must be written and made in a
language acceptable to the requested State. Further, it obligates each State to notify the
Secretary-General of the United Nations about the language or languages acceptable to that
State. This paragraph is based on article 46, paragraph 14, of the 2003 United Nations
Convention against Corruption.663
(6) Paragraph 4 of the draft annex indicates what must be included in any request for
mutual legal assistance, such as the identity of the authority making the request, the purpose
for which the evidence, information or action is sought, and a statement of the relevant facts.
While this provision lays out the minimum requirements for a request for mutual legal
assistance, it should not be read to preclude the inclusion of further information if it will
expedite or clarify the request. This paragraph is based on article 46, paragraph 15, of the
2003 United Nations Convention against Corruption. 664
(7) Paragraph 5 of the draft annex allows the requested State to request supplemental
information when it is either necessary to carry out the request under its national law, or
when additional information would prove helpful in doing so. This paragraph is intended to
encompass a broad array of situations, such as where the national law of the requested State
requires more information for the request to be approved and executed or where the
requested State requires new information or guidance from the requesting State on how to
proceed with a specific investigation. 665 This paragraph is based on article 46, paragraph 16,
of the 2003 United Nations Convention against Corruption. 666
660 See Interpretative notes for the official records (travaux préparatoires) of the negotiation of the
United Nations Convention against Transnational Organized Crime and the Protocols thereto
(A/55/383/Add.1), para. 40.
661 See also United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, art. 7, para. 8; United Nations Convention against Transnational Organized Crime, art.
18, para. 13.
662 State of Implementation of the United Nations Convention against Corruption, p. 231.
18, para. 14. See also State of Implementation of the United Nations Convention against Corruption,
p. 234–235.
18, para. 15; Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances, pp. 189–190, para. 7.30–7.33.
665 See Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, pp. 189–190, para. 7.34.
18, para. 16.
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(8) Paragraphs 6 to 12 of the draft annex address the response by the requested State to
the request for mutual legal assistance.
(9) Paragraph 6 of the draft annex provides that the request “shall be executed in
accordance with the national law of the requested State” and, to the extent not contrary to
such law and where possible, “in accordance with the procedures specified in the request”.
This provision is narrowly tailored to address only the process by which the State executes
the request; it does not provide grounds for refusing to respond to a request, which are
addressed in paragraph 8 of the draft annex. This paragraph is based on article 46,
paragraph 17, of the 2003 United Nations Convention against Corruption. 667
(10) Paragraph 7 of the draft annex provides that the request shall be addressed as soon
as possible, taking into account any deadlines suggested by the requesting State, and that
the requested State shall keep the requesting State reasonably informed of its progress in
handling the request. Read in conjunction with paragraph 6, paragraph 7 obligates the
requested State to execute a request for mutual legal assistance in an efficient and timely
manner. At the same time, paragraph 7 is to be read in light of the permissibility of a
postponement for the reason set forth in paragraph 10. Paragraph 7 is based on article 46,
paragraph 24, of the 2003 United Nations Convention against Corruption.668
(11) Paragraph 8 of the draft annex indicates four circumstances under which a request
for mutual legal assistance may be refused, and is based on article 46, paragraph 21, of the
2003 United Nations Convention against Corruption. 669 Subparagraph (a) allows a
requested State to refuse mutual legal assistance when the request does not conform to the
requirements of the draft annex. Subparagraph (b) allows a requested State to refuse to
provide mutual legal assistance “if the requested State considers that execution of the
request is likely to prejudice its sovereignty, security, ordre public or other essential
interests”. Subparagraph (c) allows mutual legal assistance to be refused “if the authorities
of the requested State would be prohibited by its national law from carrying out the action
requested with regard to any similar offence” if it were being prosecuted in the requested
State. Subparagraph (d) allows a requested State to refuse mutual legal assistance when
granting the request would be contrary to the requested State’s legal system. The
Commission considered whether to add an additional ground for refusal based on a
principle of non-discrimination, but decided that the existing grounds (especially (b) and
(d)) were sufficiently broad to embrace such a ground. Among other things, it was noted
that a proposal to add such an additional ground was contemplated during the drafting of
the 2000 United Nations Convention against Transnational Organized Crime, but was not
included because it was viewed as already encompassed in subparagraph (b).670
(12) Paragraph 9 of the draft annex provides that “[r]easons shall be given for any refusal
of mutual legal assistance”. Such a requirement ensures the requesting State understands
why the request was rejected, thereby allowing better understanding as to constraints that
18, para. 17.
668 See also United Nations Convention against Transnational Organized Crime, art. 18, para. 24.
18, para. 21; European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 20 April
1959), United Nations, Treaty Series, vol. 472, No. 6841, p. 185, art. 2; Model Treaty on Mutual
Assistance in Criminal Matters, art. 4, para. 1. For commentary, see Council of Europe, Explanatory
report to the European Convention on Mutual Assistance in Criminal Matters, document 20.IV.1959,
pp. 4–5; Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, pp. 194–196, paras. 7.46–7.51. See also Interpretative notes for the official
records (travaux préparatoires) of the negotiation of the United Nations Convention against
Transnational Organized Crime and the Protocols thereto (A/55/383/Add.1), para. 42.
670 See Interpretative notes for the official records (travaux préparatoires) of the negotiation of the
United Nations Convention against Transnational Organized Crime and the Protocols thereto
(A/55/383/Add.1), para. 42.
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exist not just for that particular request but also for future requests. This paragraph is based
on article 46, paragraph 23, of the 2003 United Nations Convention against Corruption.671
(13) Paragraph 10 of the draft annex provides that mutual legal assistance “may be
postponed by the requested State on the ground that it interferes with an ongoing
investigation, prosecution or judicial proceeding”. This provision allows the requested State
some flexibility to delay the provision of information if necessary to avoid prejudicing an
ongoing investigation or proceeding of its own. This paragraph is based on article 46,
paragraph 25, of the 2003 United Nations Convention against Corruption.672
(14) Paragraph 11 of the draft annex obliges the requested State, before refusing a request,
to “consult with the requesting State to consider whether assistance may be granted subject
to such terms and conditions as it deems necessary. If the requesting State accepts
assistance subject to those conditions, it shall comply with the conditions”. In some cases,
the reason for refusal may be a purely technical matter which can be easily remedied by the
requesting State, in which case consultations will help clarify the matter and allow the
request to proceed. A formulation of this paragraph in the 1988 United Nations Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances indicated only that
consultations should take place regarding possible postponement of requests for mutual
legal assistance.673 The 2000 United Nations Convention against Transnational Organized
Crime, however, expanded the application of this provision to cover refusals of assistance
as well.674 This approach was replicated in article 46, paragraph 26, of the 2003 United
Nations Convention against Corruption,675 upon which paragraph 11 is based.
(15) Paragraph 12 of the draft annex addresses the provision of government records,
documents and information from the requested State to the requesting State, indicating that
such information that is publicly available “shall” be provided, while information that is not
publicly available “may” be provided. Such an approach encourages but does not require a
requested State to release confidential information. This paragraph is based on article 46,
paragraph 29, of the 2003 United Nations Convention against Corruption. 676

(16) Paragraphs 13 and 14 of the draft annex address the use of information received by
the requesting State from the requested State.
(17) Paragraph 13 of the draft annex precludes the requesting State from transmitting the
information to a third party, such as another State, and precludes it from using the
information “for investigations, prosecutions or judicial proceedings other than those stated
in the request without the prior consent of the requested State”. As noted with respect to
paragraph 4 of the draft annex, the requesting State must indicate in its request “the purpose
for which the evidence, information or action is sought”. At the same time, when the
information received by the requesting State is exculpatory to an accused person, the
requesting State may disclose the information to that person (as it may be obliged to do
under its national law), after providing advance notice to the requested State when possible.
18, para. 23; Model Treaty on Mutual Assistance in Criminal Matters, art. 4, para. 5.
18, para. 25; United Nations Model Treaty on Mutual Assistance in Criminal Matters, art. 4, para. 3.
673 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art.
7, para. 17.
675 United Nations Convention against Corruption, art. 46, para. 26 (“Before refusing a request pursuant
to paragraph 21 of this article or postponing its execution pursuant to paragraph 25 of this article, the
requested State Party shall consult with the requesting State Party to consider whether assistance may
be granted subject to such terms and conditions as it deems necessary. If the requesting State Party
accepts assistance subject to those conditions, it shall comply with the conditions”).
676 See also United Nations Convention against Transnational Organized Crime, art. 18, para. 29.
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This paragraph is based on article 46, paragraph 19, of the 2003 United Nations Convention
against Corruption.677
(18) Paragraph 14 of the draft annex allows the requesting State to require the requested
State to keep the fact and substance of the request confidential, except to the extent
necessary to execute the request. This paragraph is based on article 46, paragraph 20, of the
2003 United Nations Convention against Corruption. 678

(19) Paragraphs 15 and 16 of the draft annex address the procedures for a requesting
State to secure testimony from a person present in the requested State.
(20) Paragraph 15 of the draft annex is essentially a “safe conduct” provision, which
gives a person traveling from the requested State to the requesting State protection from
prosecution, detention, punishment or other restriction of liberty by the requesting State
during the person’s testimony, with respect to acts that occurred prior to the person’s
departure from the requested State. As set forth in paragraph 15, such protection does not
extend to acts committed after the person’s departure nor does it continue indefinitely after
the testimony is given. This paragraph is based on article 46, paragraph 27, of the 2003
United Nations Convention against Corruption. 679
(21) Paragraph 16 of the draft annex addresses testimony by witnesses through video
conferencing, a cost-effective technology that is becoming increasingly common. While
testimony by video conference is not mandatory, if it is “not possible or desirable for the
individual in question to appear in person in territory under the jurisdiction of the
requesting State”, then the requested State may permit the hearing to take place by video
conference. This will only occur, however, when “possible and consistent with fundamental
principles of national law”, a clause which refers to the laws of both the requesting and the
requested States. This paragraph is based on article 46, paragraph 18, of the 2003 United
Nations Convention against Corruption. 680 The 2017 implementation report for the 2003
United Nations Convention against Corruption indicates that the use of this provision is
widespread:
[T]he hearing of witnesses and experts by videoconference is generally recognized
as a useful tool in saving time and costs in the context of mutual legal assistance in
criminal matters, as well as in overcoming practical difficulties, such as when the
person whose evidence is sought is unable or unwilling to travel to the foreign
country to give evidence. Videoconferencing is permissible under the domestic law
of the majority of States parties … .681
Substances, art. 7, para. 13; International Convention for the Suppression of the Financing of
Terrorism, art. 12, para. 3; United Nations Convention against Transnational Organized Crime, art.
18, para. 19. For commentary, see Commentary on the United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, p. 193, para. 7.43.
678 See also United Nations Convention against Transnational Organized Crime, art. 18, para. 20; Model
Treaty on Mutual Assistance in Criminal Matters, art. 9.
679 See also United Nations Convention against Transnational Organized Crime, art. 18, para. 27; United
Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art. 7, para.
18; United Nations Model Treaty on Mutual Assistance in Criminal Matters, art. 15; European
Convention on Mutual Assistance in Criminal Matters, art. 12; Commentary on the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, pp. 197–198, para.
7.55.
680 See also United Nations Convention against Transnational Organized Crime, art. 18, para. 18;
Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United
Nations Convention against Transnational Organized Crime and the Protocols thereto
(A/55/383/Add.1), para. 41; Legislative Guide for the Implementation of the United Nations
Convention against Corruption, pp. 174–175, para. 629.
681 State of Implementation of the United Nations Convention against Corruption, p. 236.
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(22) Paragraphs 17 to 19 of the draft annex address the situation where a requesting State
seeks the transfer from the requested State of a person who is being detained or serving a
sentence in the latter.
(23) Paragraph 17 of the draft annex allows for the transfer of a person who is in the
custody of the requested State to the requesting State where the person to be transferred
“freely gives his or her informed consent” and the “competent authorities” of the requesting
State and requested State agree to the transfer. The provision should be understood as
covering persons who are in custody for criminal proceedings or serving a sentence, who
are performing mandatory community service, or who are confined to particular areas under
a probationary system. Although testimony may be the principal reason for such transfers,
the provision also broadly covers transfer for any type of assistance sought from such a
person for “investigations, prosecutions or judicial proceedings”. This paragraph is based
on article 46, paragraph 10, of the 2003 United Nations Convention against Corruption. 682
(24) Paragraph 18 of the draft annex describes the obligation of the requesting State to
keep the person transferred in custody, unless otherwise agreed, and to return the transferee
to the requested State in accordance with the transfer agreement, without the requested
State needing to initiate extradition proceedings. This paragraph also addresses the
obligation of the requested State to give credit to the transferee for the time which he or she
spends in custody in the requesting State. This paragraph is based on article 46, paragraph
11, of the 2003 United Nations Convention against Corruption. 683
(25) Paragraph 19 of the draft annex is similar to the “safe conduct” provision contained
in paragraph 15, whereby the transferred person is protected from prosecution, detention,
punishment or other restriction to liberty by the requesting State during the course of the
person’s presence in the requesting State, with respect to acts that occurred prior to the
person’s departure from the requested State. Paragraph 19, however, allows the requested
State to agree that the requesting State may undertake such actions. Further, this provision
must be read in conjunction with paragraph 18, which obliges the requesting State to keep
the transferee in custody, unless otherwise agreed, based upon his or her detention or
sentence in the requested State. This paragraph is based on article 46, paragraph 12, of the
2003 United Nations Convention against Corruption.684
Costs
(26) Paragraph 20 of the draft annex addresses the issue of costs, stating, inter alia, that
“[t]he ordinary costs of executing a request shall be borne by the requested State, unless
otherwise agreed by the States concerned”. The second sentence of the provision allows for
States to consult with each other where the expenses to fulfil the request will be “of a
substantial or extraordinary nature”. This paragraph is based on article 46, paragraph 28, of
the 2003 United Nations Convention against Corruption. 685
(27) Various interpretive notes or commentary with respect to comparable provisions in
other treaties provide guidance as to the meaning of this provision. For example, the
commentary to the 1988 United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances provides:
682 See also International Convention for the Suppression of the Financing of Terrorism, art. 16, para. 1;
United Nations Convention against Transnational Organized Crime, art. 18, para. 10; Interpretative
notes for the official records (travaux préparatoires) of the negotiation of the United Nations
Convention against Transnational Organized Crime and the Protocols thereto (A/55/383/Add.1),
para. 39.
United Nations Convention against Transnational Organized Crime, art. 18, para. 11.
United Nations Convention against Transnational Organized Crime, art. 18, para. 12.
18, para. 28; United Nations Model Treaty on Mutual Assistance in Criminal Matters, art. 20.
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This rule makes for simplicity, avoiding the keeping of complex accounts, and rests
on the notion that over a period of time there will be a rough balance between States
that are sometimes the requesting and sometimes the requested party. In practice,
however, that balance is not always maintained, as the flow of requests between
particular pairs of parties may prove to be largely in one direction. For this reason,
the concluding words of the first sentence enable the parties to agree to a departure
from the general rule even in respect of ordinary costs. 686
(28) A footnote to the United Nations Model Treaty on Mutual Assistance in Criminal
Matters indicates that:
For example, the requested State would meet the ordinary costs of fulfilling the
request for assistance except that the requested State would bear (a) the exceptional
or extraordinary expenses required to fulfil the request, where required by the
requested State and subject to previous consultations; (b) the expenses associated
with conveying any person to or from the territory of the requested State, and any
fees, allowances or expenses payable to that person while in the requesting State ... ;
(c) the expenses associated with conveying custodial or escorting officers; and (d)
the expenses involved in obtaining reports of experts. 687
(29) An interpretative note to the 2000 United Nations Convention against Transnational
Organized Crime states:
The travaux préparatoires should indicate that many of the costs arising in
connection with compliance with requests [regarding the transfer of persons or video
conferencing] would generally be considered extraordinary in nature. Further, the
travaux préparatoires should indicate the understanding that developing countries
may encounter difficulties in meeting even some ordinary costs and should be
provided with appropriate assistance to enable them to meet the requirements of this
article.688
(30) Finally, according to the travaux préparatoires of the 2003 United Nations
Convention against Corruption:
Further, the travaux préparatoires will also indicate the understanding that
developing countries might encounter difficulties in meeting even some ordinary
costs and should be provided with appropriate assistance to enable them to meet the
requirements of this article.689
686 Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, p. 198, para. 7.57.
687 United Nations Model Treaty on Mutual Assistance in Criminal Matters, art. 20, footnote 27.
688 Interpretative notes for the Official Records (travaux préparatoires) of the negotiation of the United
Nations Convention against Transnational Organized Crime and the Protocols thereto
(A/55/383/Add.1), para. 43.
689 Interpretative notes for the Official Records (travaux préparatoires) of the negotiation of the United
Nations Convention against Corruption (A/58/422/Add.1), para. 44.
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Chapter V
Peremptory norms of general international law (jus cogens)
A. Introduction
46. At its sixty-seventh session (2015), the Commission decided to include the topic
“Jus cogens” in its programme of work and appointed Mr. Dire Tladi as Special Rapporteur
for the topic. 690 The General Assembly subsequently, in its resolution 70/236 of 23
December 2015, took note of the decision of the Commission to include the topic in its
programme of work.
47. The Special Rapporteur submitted three reports from 2016 to 2018, which the
Commission considered at its sixty-eighth to seventieth sessions (2016–2018), 691
respectively. Following the debates on those reports, the Commission decided to refer the
draft conclusions contained in those reports to the Drafting Committee. The Commission
heard interim reports from the Chairpersons of the Drafting Committee on peremptory
norms of general international law (jus cogens) containing the draft conclusions
provisionally adopted by the Drafting Committee at the sixty-eighth to seventieth sessions,
respectively.
48. At its sixty-ninth session (2017), following a proposal by the Special Rapporteur in
his second report,692 the Commission decided to change the title of the topic from “Jus
cogens” to “Peremptory norms of general international law (jus cogens)”.693
49. At the present session, the Commission had before it the fourth report of the Special
Rapporteur (A/CN.4/727). The fourth report discussed the previous consideration of the
topic in the Commission and the Sixth Committee of the General Assembly. It also
addressed the questions of regional jus cogens and the inclusion of an illustrative list of
peremptory norms of general international (jus cogens) in the draft conclusions. On the
basis of his analysis, the Special Rapporteur proposed one draft conclusion containing a
non-exhaustive list of peremptory norms of general international law (jus cogens).
50. The Commission considered the fourth report at its 3459th to 3463rd, and 3465th
meetings, from 8 to 10 May, and from 14 to 16 May 2019.
51. At its 3465th meeting, on 16 May 2019, the Commission referred draft conclusion
24, as contained in the Special Rapporteur’s fourth report, to the Drafting Committee on the
understanding that the list contained in the draft conclusion would be moved to an annex
and that it would be limited to those peremptory norms of general international law (jus
cogens) that the Commission had previously referred to.
52. The Commission considered the report of the Drafting Committee (A/CN.4/L.936)
at its 3472nd meeting, held on 31 May 2019, and adopted the draft conclusions on
peremptory norms of general international law (jus cogens) on first reading (see section C.1
below).
53. At its 3499th to 3504th meetings, from 5 to 7 August 2019, the Commission adopted
the commentaries to the aforementioned draft conclusions (see section C.2 below).
690 At its 3257th meeting, on 27 May 2015 (Official Records of the General Assembly, Seventieth
Session, Supplement No. 10 (A/70/10), para. 286). The topic had been included in the long-term
programme of work of the Commission during its sixty-sixth session (2014), on the basis of the
proposal contained in the annex to the report of the Commission (ibid., Sixty-ninth Session,
Supplement No. 10 (A/69/10), para. 23).
691 A/CN.4/693 (first report), A/CN.4/706 (second report) and A/CN.4/714 and Corr.1 (third report).
692 A/CN.4/706, para. 90.
para. 146).
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54. At its 3504th meeting, on 7 August 2019, the Commission decided, in accordance
with articles 16 to 21 of its statute, to transmit the draft conclusions (see section C below),
through the Secretary-General, to Governments for comments and observations, with the
request that such comments and observations be submitted to the Secretary-General by 1
December 2020.
55. At its 3504th meeting, on 7 August 2019, the Commission further expressed its deep
appreciation for the outstanding contribution of the Special Rapporteur, Mr. Dire Tladi,
which had enabled the Commission to bring to a successful conclusion its first reading of
the draft conclusions on peremptory norms of general international law (jus cogens).
C. Text of the draft conclusions on peremptory norms of general

international law (jus cogens), adopted by the Commission on first
reading
1. Text of the draft conclusions

56. The text of the draft conclusions adopted by the Commission on first reading is
reproduced below.
Part One
Introduction
Conclusion 1
Scope
The present draft conclusions concern the identification and legal
consequences of peremptory norms of general international law (jus cogens).
Conclusion 2
Definition of a peremptory norm of general international law (jus cogens)
A peremptory norm of general international law (jus cogens) is a norm
accepted and recognized by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.
Conclusion 3
General nature of peremptory norms of general international law (jus cogens)
Peremptory norms of general international law (jus cogens) reflect and
protect fundamental values of the international community, are hierarchically
superior to other rules of international law and are universally applicable.
Part Two
Conclusion 4
Criteria for the identification of a peremptory norm of general international
law (jus cogens)
To identify a peremptory norm of general international law (jus cogens), it is
necessary to establish that the norm in question meets the following criteria:
(a) it is a norm of general international law; and
(b) it is accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same
character.
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Conclusion 5
Bases for peremptory norms of general international law (jus cogens)
1. Customary international law is the most common basis for peremptory norms
of general international law (jus cogens).
2. Treaty provisions and general principles of law may also serve as bases for
peremptory norms of general international law (jus cogens).
Conclusion 6
Acceptance and recognition
1. The requirement of “acceptance and recognition” as a criterion for
identifying a peremptory norm of general international law (jus cogens) is distinct
from acceptance and recognition as a norm of general international law.
2. To identify a norm as a peremptory norm of general international law (jus
cogens), there must be evidence that such a norm is accepted and recognized as one
from which no derogation is permitted and which can only be modified by a
Conclusion 7
International community of States as a whole
1. It is the acceptance and recognition by the international community of States
as a whole that is relevant for the identification of peremptory norms of general
international law (jus cogens).
2. Acceptance and recognition by a very large majority of States is required for
the identification of a norm as a peremptory norm of general international law (jus
cogens); acceptance and recognition by all States is not required.
3. While the positions of other actors may be relevant in providing context and
for assessing acceptance and recognition by the international community of States as
a whole, these positions cannot, in and of themselves, form part of such acceptance
and recognition.
Conclusion 8
Evidence of acceptance and recognition
1. Evidence of acceptance and recognition that a norm of general international
law is a peremptory norm (jus cogens) may take a wide range of forms.
2. Such forms of evidence include, but are not limited to: public statements
made on behalf of States; official publications; government legal opinions;
diplomatic correspondence; legislative and administrative acts; decisions of national
courts; treaty provisions; and resolutions adopted by an international organization or
at an intergovernmental conference.
Conclusion 9
Subsidiary means for the determination of the peremptory character of norms
of general international law
1. Decisions of international courts and tribunals, in particular of the
International Court of Justice, are a subsidiary means for determining the
peremptory character of norms of general international law.
2. The works of expert bodies established by States or international
organizations and the teachings of the most highly qualified publicists of the various
nations may also serve as subsidiary means for determining the peremptory
character of norms of general international law.
Part Three
Legal consequences of peremptory norms of general international law (jus
cogens)
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Conclusion 10
Treaties conflicting with a peremptory norm of general international law (jus
cogens)
1. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law (jus cogens). The provisions of such a treaty have
no legal force.
2. If a new peremptory norm of general international law (jus cogens) emerges,
any existing treaty which is in conflict with that norm becomes void and terminates.
The parties to such a treaty are released from any obligation further to perform the
treaty.
Conclusion 11
Separability of treaty provisions conflicting with a peremptory norm of general
international law (jus cogens)
1. A treaty which, at the time of its conclusion, conflicts with a peremptory
norm of general international law (jus cogens) is void in whole, and no separation of
the provisions of the treaty is permitted.
2. A treaty which becomes void because of the emergence of a new peremptory
norm of general international law (jus cogens) terminates in whole, unless:
(a) the provisions that are in conflict with a peremptory norm of general
international law (jus cogens) are separable from the remainder of the treaty with
regard to their application;
(b) it appears from the treaty or is otherwise established that acceptance
of the said provisions was not an essential basis of the consent of any party to be
bound by the treaty as a whole; and
(c) continued performance of the remainder of the treaty would not be
unjust.
Conclusion 12
Consequences of the invalidity and termination of treaties conflicting with a
peremptory norm of general international law (jus cogens)
1. Parties to a treaty which is void as a result of being in conflict with a
peremptory norm of general international law (jus cogens) at the time of the treaty’s
conclusion have a legal obligation to:
(a) eliminate as far as possible the consequences of any act performed in
reliance on any provision of the treaty which conflicts with a peremptory norm of
general international law (jus cogens); and
(b) bring their mutual relations into conformity with the peremptory norm
2. The termination of a treaty on account of the emergence of a new peremptory
norm of general international law (jus cogens) does not affect any right, obligation
or legal situation created through the execution of the treaty prior to the termination
of the treaty, provided that those rights, obligations or situations may thereafter be
maintained only to the extent that their maintenance is not in itself in conflict with
the new peremptory norm of general international law (jus cogens).
Conclusion 13
Absence of effect of reservations to treaties on peremptory norms
of general international law (jus cogens)
1. A reservation to a treaty provision that reflects a peremptory norm of general
international law (jus cogens) does not affect the binding nature of that norm, which
shall continue to apply as such.
2. A reservation cannot exclude or modify the legal effect of a treaty in a
manner contrary to a peremptory norm of general international law (jus cogens).
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Conclusion 14
Rules of customary international law conflicting with a peremptory norm of
general international law (jus cogens)
1. A rule of customary international law does not come into existence if it
conflicts with a peremptory norm of general international law (jus cogens). This is
without prejudice to the possible modification of a peremptory norm of general
international law (jus cogens) by a subsequent norm of general international law
having the same character.
2. A rule of customary international law not of a peremptory character ceases to
exist if and to the extent that it conflicts with a new peremptory norm of general
3. The persistent objector rule does not apply to peremptory norms of general
Conclusion 15
Obligations created by unilateral acts of States conflicting with a peremptory
norm of general international law (jus cogens)
1. A unilateral act of a State manifesting the intention to be bound by an
obligation under international law that would be in conflict with a peremptory norm
of general international law (jus cogens) does not create such an obligation.
2. An obligation under international law created by a unilateral act of a State
ceases to exist if and to the extent that it conflicts with a new peremptory norm of
general international law (jus cogens).
Conclusion 16
Obligations created by resolutions, decisions or other acts of international
organizations conflicting with a peremptory norm of general international law
(jus cogens)
A resolution, decision or other act of an international organization that would
otherwise have binding effect does not create obligations under international law if
and to the extent that they conflict with a peremptory norm of general international
law (jus cogens).
Conclusion 17
Peremptory norms of general international law (jus cogens) as obligations owed
to the international community as a whole (obligations erga omnes)
1. Peremptory norms of general international law (jus cogens) give rise to
obligations owed to the international community as a whole (obligations erga
omnes), in which all States have a legal interest.
2. Any State is entitled to invoke the responsibility of another State for a breach
of a peremptory norm of general international law (jus cogens), in accordance with
the rules on the responsibility of States for internationally wrongful acts.
Conclusion 18
Peremptory norms of general international law (jus cogens) and circumstances
precluding wrongfulness
No circumstance precluding wrongfulness under the rules on the
responsibility of States for internationally wrongful acts may be invoked with regard
to any act of a State that is not in conformity with an obligation arising under a
peremptory norm of general international law (jus cogens).
Conclusion 19
Particular consequences of serious breaches of peremptory norms of general
1. States shall cooperate to bring to an end through lawful means any serious
breach by a State of an obligation arising under a peremptory norm of general
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2. No State shall recognize as lawful a situation created by a serious breach by a

State of an obligation arising under a peremptory norm of general international law
(jus cogens), nor render aid or assistance in maintaining that situation.
3. A breach of an obligation arising under a peremptory norm of general
international law (jus cogens) is serious if it involves a gross or systematic failure by
the responsible State to fulfil that obligation.
4. This draft conclusion is without prejudice to the other consequences that a
serious breach by a State of an obligation arising under a peremptory norm of
general international law (jus cogens) may entail under international law.
Conclusion 20
Interpretation and application consistent with peremptory norms of general
Where it appears that there may be a conflict between a peremptory norm of
general international law (jus cogens) and another rule of international law, the latter
is, as far as possible, to be interpreted and applied so as to be consistent with the
former.
Conclusion 21
Procedural requirements
1. A State which invokes a peremptory norm of general international law (jus
cogens) as a ground for the invalidity or termination of a rule of international law is
to notify other States concerned of its claim. The notification is to be in writing and
is to indicate the measure proposed to be taken with respect to the rule of
international law in question.
2. If none of the other States concerned raises an objection within a period
which, except in cases of special urgency, shall not be less than three months, the
invoking State may carry out the measure which it has proposed.
3. If any State concerned raises an objection, then the States concerned are to
seek a solution through the means indicated in Article 33 of the Charter of the
United Nations.
4. If no solution is reached within a period of twelve months, and the objecting
State or States concerned offer to submit the matter to the International Court of
Justice, the invoking State may not carry out the measure which it has proposed until
the dispute is resolved.
5. This draft conclusion is without prejudice to the procedural requirements set
forth in the Vienna Convention on the Law of Treaties, the relevant rules concerning
the jurisdiction of the International Court of Justice, or other applicable dispute
settlement provisions agreed by the States concerned.
Part Four
General provisions
Conclusion 22
Without prejudice to consequences that specific peremptory norms of general
international law (jus cogens) may otherwise entail
The present draft conclusions are without prejudice to consequences that
specific peremptory norms of general international law (jus cogens) may otherwise
entail under international law.
Conclusion 23
Non-exhaustive list
Without prejudice to the existence or subsequent emergence of other
peremptory norms of general international law (jus cogens), a non-exhaustive list of
norms that the International Law Commission has previously referred to as having
that status is to be found in the annex to the present draft conclusions.
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Annex
(a) The prohibition of aggression;
(b) The prohibition of genocide;
(c) The prohibition of crimes against humanity;
(d) The basic rules of international humanitarian law;
(e) The prohibition of racial discrimination and apartheid;
(f) The prohibition of slavery;
(g) The prohibition of torture;
(h) The right of self-determination.
2. Text of the draft conclusions on peremptory norms of general international law (jus
cogens) and commentaries thereto
57. The text of the draft conclusions on peremptory norms of general international law
(jus cogens) adopted by the Commission, on first reading, together with commentaries
thereto, is reproduced below.
Part One
Introduction
Conclusion 1
Scope
The present draft conclusions concern the identification and legal
Commentary
(1) As is always the case with the Commission’s outputs, the draft conclusions are to be
read together with the commentaries.
(2) These draft conclusions concern peremptory norms of general international law (jus
cogens), which have increasingly been referred to by international and regional courts,
national courts, States and other actors. These draft conclusions are aimed at providing
guidance to all those who may be called upon to determine the existence of peremptory
norms of general international law (jus cogens) and their legal consequences. Given the
importance and potentially far-reaching implications of peremptory norms, it is essential
that the identification of such norms and their legal consequences be done systematically
and in accordance with a generally accepted methodology.
(3) Draft conclusion 1 is introductory in nature and sets out the scope of the present
draft conclusions. It provides in simple terms that the present draft conclusions concern the
identification and legal consequences of peremptory norms of general international law (jus
cogens). The draft conclusions, dealing with identification and legal consequences, are
primarily concerned with methodology. They do not attempt to address the content of
individual peremptory norms of general international law (jus cogens). It should also be
noted that the commentaries will refer to different materials to illustrate methodological
approaches in practice. The materials referred to, as examples of practice, including views
of States, serve to illustrate the methodology for the identification and consequences of
peremptory norms of general international law (jus cogens). They do not imply the
agreement with, or endorsement of, the views expressed therein by the Commission.
(4) The draft conclusions are concerned primarily with the method for establishing
whether a norm of general international law has the added quality of having a peremptory
character (that is, being accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law (jus cogens) having the same
character). The draft conclusions are thus not concerned with the determination of the
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content of the peremptory norms themselves. The process of identifying whether a norm of
international law is peremptory or not requires the application of the criteria developed in
these draft conclusions.
(5) In addition to the identification of peremptory norms of general international law
(jus cogens), the draft conclusions also concern the legal consequences of such norms. The
term “legal consequences” is used because it is broad. While there may be non-legal
consequences of peremptory norms of general international law (jus cogens), it is only the
legal consequences that are the subject of the present draft conclusions. Moreover,
individual peremptory norms of general international law (jus cogens) may have specific
consequences that are distinct from the general consequences flowing from all peremptory
norms. The present draft conclusions, however, are not concerned with such specific
consequences, nor do they seek to determine whether individual peremptory norms have
specific consequences. The draft conclusions only address general legal consequences of
peremptory norms of general international law.
(6) The terms “jus cogens”, “peremptory norms” and “peremptory norms of general
international law” are sometimes used interchangeably in State practice, international
jurisprudence and scholarly writings.694 The Commission settled on the phrase “peremptory
norms of general international law (jus cogens)” because it is clearer and is the phrase used
in the 1969 Vienna Convention on the Law of Treaties (“1969 Vienna Convention”).695
(7) The phrase “peremptory norms of general international law (jus cogens)” also serves
to indicate that the topic is concerned only with norms of general international law. Jus
cogens norms in domestic legal systems, for example, do not form part of the topic.
Similarly, norms of a purely bilateral or regional character are also excluded from the scope
of the topic.
(8) The word “norm” is sometimes understood to have a broader meaning than other
related words such as “rules” and “principles” and to encompass both. It is, however, to be
noted that in some cases, the words “rules”, “principles” and “norms” can be used
interchangeably. The Commission, in its 1966 draft articles on the law of treaties, used the
word “norm” in draft article 50 which became article 53 of the 1969 Vienna Convention.
However, in the commentaries, the Commission used the word “rules”.696 To be consistent
with that Convention, which uses the word “norm” in both its articles 53 and 64, the word
“norm” is retained.
Conclusion 2
Definition of a peremptory norm of general international law (jus cogens)
A peremptory norm of general international law (jus cogens) is a norm
accepted and recognized by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law (jus cogens) having the same character.
Commentary
(1) Draft conclusion 2 provides a definition of peremptory norms of general
international law (jus cogens). It is based upon article 53 of the 1969 Vienna Convention
with modifications to fit the context of the draft conclusions. First, only the second sentence
of article 53 of the 1969 Vienna Convention is reproduced. The first sentence, which
concerns the invalidity of treaties, does not form part of the definition. It is rather a legal
consequence of peremptory norms of general international law (jus cogens), which is
addressed in draft conclusion 10. Second, the phrase “[f]or the purposes of the present
Convention” is omitted from the definition. As will be demonstrated below, the definition
694 For a discussion on nomenclature, see D. Costelloe, Legal Consequences of Peremptory Norms in
International Law, Cambridge University Press, 2017, at pp. 11 et seq.
695 See, for example, article 53 of the 1969 Vienna Convention.
696 See draft article 50 of the draft articles on the law of treaties, Yearbook … 1966, vol. II, p. 183, where
the word “norm” is used. The commentaries, however, refer to “general rule[s] of international law ...
having the character of jus cogens” and “rules of jus cogens” (ibid., p. 248, paras. (2)–(3) of the
commentary to draft article 50).
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in article 53, though initially used for the purposes of the 1969 Vienna Convention, has
come to be accepted as a general definition which applies beyond the law of treaties.
Finally, in keeping with the general approach in this topic, the Commission has decided to
insert the phrase “jus cogens” in parentheses after “peremptory norm of general
international law”.
(2) This formulation was chosen because it is the most widely accepted definition in the
practice of States and in the decisions of international courts and tribunals. It is also
commonly used in scholarly writings. States have generally supported the idea of
proceeding on the basis of 1969 Vienna Convention.697 Decisions of national courts have
generally also referred to article 53 when defining peremptory norms of general
international law (jus cogens).698 Similarly, international courts and tribunals have used
article 53 of the 1969 Vienna Convention as a basis when addressing peremptory norms of
general international law (jus cogens).699 Article 53 of the 1969 Vienna Convention is also
accepted as the general definition of peremptory norms of general international law (jus
cogens) in scholarly writings.700 While the formulation in article 53 of the 1969 Vienna
697 See, for example, the statement by the Czech Republic (A/C.6/71/SR.24, para. 72). See also the
statements by Canada (A/C.6/71/SR.27, para. 9), Chile (A/C.6/71/SR.25, para. 101), China
(A/C.6/71/SR.24, para. 89), the Islamic Republic of Iran (A/C.6/71/SR.26, para. 118) (“The aim of
the Commission’s work on the topic was not to contest the two criteria established under article 53 …
. On the contrary, the goal was to elucidate the meaning and scope of the two criteria”), and Poland
(ibid., para. 56). See, further, the statement by Ireland (A/C.6/71/SR.27, para. 19) (“Her delegation
agreed with the view that articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties
should be central to work on the topic”).
698 See, for example, Al Shimari, et al. v. CACI Premier Technology, Inc., No. 1:08-cv-827 (LMB/JFA),
Opinion of 22 March 2019, 2019 WL 1320052 (E.D. Va. 2019), at p. 26; Committee of United States
Citizens Living in Nicaragua v. Reagan, Case No. 87-5053, Opinion of 14 October 1988, 859 F.2d
929 (D.C. Cir. 1988), at p. 940; Youssef Nada v. State Secretariat for Economic Affairs and Federal
Department of Economic Affairs, Case No. 1A 45/2007, Administrative appeal judgment of 14
November 2007, Federal Supreme Court of Switzerland, BGE 133 II 450, para. 7.1; National
Commissioner of The South African Police Service v. Southern African Human Rights Litigation
Centre and Another, Case No. CC 02/14, Judgment of 30 October 2014, Constitutional Court of
South Africa, [2014] ZACC 30, para. 35; Priebke, Erich s/ solicitud de extradición, Case No.
16.063/94, Judgment of 2 November 1995, Supreme Court of Argentina, para. 70; Bouzari v. Islamic
Republic of Iran, Docket C38295, Decision of 30 June 2004, Court of Appeal for Ontario, 71 OR (3d)
675 (Ont CA), ILDC [International Law in Domestic Courts] 175 (CA 2004), para. 86; and Gabriel
Orlando Vera Navarrete, EXP. No. 2798-04-HC/TC, Decision of 9 December 2004, Constitutional
Tribunal of Peru, para. 8.
699 See, for example, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996, p. 226, at p. 258, para. 83; Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment of 10
December 1998, Trial Chamber, International Criminal Tribunal for the Former Yugoslavia, Judicial
Reports 1998, at p. 571, para. 155; and Prosecutor v. Jelisić, Case No. IT-95-10-T, Judgment of 14
December 1999, Trial Chamber, International Criminal Tribunal for the Former Yugoslavia, Judicial
Reports 1999, pp. 431–433, para. 60. See also Jaime Córdoba Triviño, Case No. C-578/95, Sentence
of 4 December 1995, Constitutional Tribunal of Colombia. See, especially, the separate opinion of
Judge ad hoc Dugard in Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J.
700 See, for example, S. Knuchel, Jus Cogens: Identification and Enforcement of Peremptory Norms,
Zurich, Schulthess, 2015, at p. 19 (“Given that Article 53 provides the only written legal definition of
the effects of jus cogens … as well as of the process by which such norms come into being … it is the
necessary starting point for analyzing this concept”); S. Kadelbach, “Genesis, function and
identification of jus cogens norms”, Netherlands Yearbook of International Law 2015, vol. 46 (2016),
pp. 147–172, at p. 166, noting that “treatises on jus cogens usually start” with article 53 of the 1969
Vienna Convention and, at p. 162, assessing enhanced responsibility and the erga omnes effects of jus
cogens on the basis of article 53 of the 1969 Vienna Convention; and U. Linderfalk, “Understanding
the jus cogens debate: the pervasive influence of legal positivism and legal idealism”, ibid., pp. 51–
84, at p. 52. See also, generally, Costelloe (footnote 694 above), who, though never stating that article
53 of the 1969 Vienna Convention is the definition, certainly proceeds on that basis. Similarly, see L.
Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development,
Criteria, Present Status, Helsinki, Finnish Lawyers’ Publishing Company, 1988, especially at pp. 5–
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Convention is for “the purposes of the Convention”, it also applies in other contexts
including in relation to State responsibility.701 The Commission has, when addressing
peremptory norms of general international law (jus cogens) in the context of other topics,
also used the definition in article 53 of the 1969 Vienna Convention. 702 It is therefore
appropriate for these draft conclusions to rely on article 53 for the definition of peremptory
norms of general international law (jus cogens).
(3) The definition of peremptory norms in article 53 contains two main elements. First,
the norm in question must be a norm of general international law. Second, it must be
accepted and recognized by the international community of States as a whole as one from
which no derogation is permitted, and which can only be modified by a norm having the
same character. These elements constitute the criteria for the identification of peremptory
norms of general international law (jus cogens) and are elaborated upon further in draft
conclusions 4 to 9.
Conclusion 3
General nature of peremptory norms of general international law (jus cogens)
Peremptory norms of general international law (jus cogens) reflect and
protect fundamental values of the international community, are hierarchically
superior to other rules of international law and are universally applicable.
Commentary
(1) Draft conclusion 3 describes the general nature of peremptory norms of general
international law (jus cogens). The general nature is described in terms of essential
characteristics associated with peremptory norms of general international law (jus cogens).
The draft conclusion is placed at the end of Part One in order to indicate that it provides a
12; and L. A. Alexidze, “Legal nature of jus cogens in contemporary international law”, Collected
Courses of the Hague Academy of International Law, vol. 172 (1981), pp. 219–263, at p. 246.
701 See T. Weatherall, Jus Cogens: International Law and Social Contract, Cambridge University Press,
2015, at pp. 6–7 (“Although the Vienna Convention concerns the law of treaties and binds only
signatories … Article 53 reflected a concept with legal effect beyond the treaty context. … The
contemporary practice of international and domestic judicial organs, to refer to Article 53 for any
consideration of jus cogens, is consistent with this view of a concept existing outside the treaty
context”); E. Santalla Vargas, “In quest of the practical value of jus cogens norms”, Netherlands
Yearbook of International Law 2015, vol. 46 (2016), pp. 211–240, at pp. 223–224 (“However, the
potential effects of jus cogens not only expand beyond treaty law but they even appear more
significant in situations that are not concerned with treaty law”); and A. Cassese, “For an enhanced
role of jus cogens”, in A. Cassese (ed.), Realizing Utopia: the Future of International Law, Oxford
University Press, 2012, pp. 158–171, at p. 160 (“Fortunately states, national courts, and international
judicial bodies have invoked peremptory norms with regard to areas other than treaty-making. By so
doing, these entities have expanded the scope and normative impacts of peremptory norms”
(emphasis in original)). See also H. Charlesworth and C. Chinkin, “The gender of jus cogens”,
Human Rights Quarterly, vol. 15 (1993), pp. 63–76, at p. 63 (“A formal, procedural definition of the
international law concept of jus cogens is found in the Vienna Convention on the Law of Treaties”).
702 See paragraph (5) of the commentary to article 26 of the draft articles on the responsibility of States
for internationally wrongful acts, Yearbook … 2001, vol. II (Part Two) and corrigendum, p. 85 (“The
criteria for identifying peremptory norms of general international law are stringent. Article 53 of the
1969 Vienna Convention requires not merely that the norm in question should meet all the criteria for
recognition as a norm of general international law … but further that it should be recognized as
having peremptory character by the international community of States as whole”). See also the
Conclusions of the Study Group on fragmentation of international law: difficulties arising from the
diversification and expansion of international law (A/CN.4/L.702), conclusion (32) (“A rule of
international law may be superior to other rules on account of the importance of its content as well as
the universal acceptance of its superiority. This is the case of peremptory norms of international law
(jus cogens, [article 53 of the 1969 Vienna Convention]), that is, norms ‘accepted and recognized by
the international community of States as a whole from which no derogation is permitted’”). See,
further, the Report of the Study Group on the fragmentation of international law: difficulties arising
from the diversification and expansion of international law (finalized by Martti Koskenniemi)
(A/CN.4/L.682 and Corr.1 and Add.1), para. 375 (“The starting-point [for establishing the criteria]
must be the formulation of article 53 itself, identifying jus cogens by reference to what is ‘accepted
and recognized by the international community of States as a whole’”).
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general orientation for the provisions that follow. A view was expressed, however, that
such “characteristics” have an insufficient basis in international law, unnecessarily conflate
the identification and effects of these norms, and risk being viewed as additional criteria for
determining whether a specific peremptory norm of general international law (jus cogens)
exists.
(2) The first characteristic referred to in draft conclusion 3 is that peremptory norms of
general international law “reflect and protect fundamental values of the international
community”. The Commission chose the words “reflect and protect” to underline the dual
function that fundamental values play in relation to peremptory norms of general
international law. The word “reflect” is meant to indicate that the fundamental value(s) in
question provide, in part, a rationale for the peremptory status of the norm of general
international law at issue. Further, the word “reflect” seeks to establish the idea that the
norm in question gives effect to particular values. The word “protect” is meant to convey
the effect of the peremptory norm on the value – that a specific peremptory norm serves to
protect the value(s) in question. In some ways these are mutually reinforcing concepts. A
value reflected by a peremptory norm of general international law (jus cogens) will be
protected by compliance with that norm.
(3) The characteristic that peremptory norms of general international law (jus cogens)
reflect and protect fundamental values of the international community relates to the content
of the norm in question. Already in 1951, before the adoption of the 1969 Vienna
Convention or the 1966 draft articles on the law of treaties, the International Court of
Justice had linked the prohibition of genocide, a prohibition today widely accepted and
recognized as a peremptory norm, to fundamental values, noting that the prohibition was
inspired by the commitment “to condemn and punish genocide as ‘a crime under
international law’ involving a denial of the right of existence of entire human groups, a
denial which shocks the conscience of mankind and results in great losses to humanity, and
which is contrary to moral law and to the spirit and aims of the United Nations”.703
(4) The references in the Court’s Advisory Opinion on Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide to “the conscience of
mankind” and “moral law” evoke fundamental values shared by the international
community. In subsequent decisions, the International Court of Justice has reaffirmed this
description of the underlying basis for the prohibition of genocide and, at the same time,
affirmed the peremptory status of the prohibition of genocide. 704 Moreover, in its 2007
judgment in the case concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, the Court referred to peremptory norms along with
“obligations which protect essential humanitarian values”, thus indicating a relationship
between them.705 The connection between values and the peremptory character of norms
has also been made by other international courts and tribunals.706
703 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports 1951, p. 15, at p. 23. See also P. Bisazza, “Les crimes à la frontière
du jus cogens”, in L. Moreillon, et al. (eds.), Droit pénal humanitaire, Series II, vol. 4, Brussels,
Bruylant, 2009, at p. 164, where she evokes, quoting Bassiouni, la conscience de l’humanité; and L.
Boisson de Chazournes, “Commentaire”, in R. Huesa Vinaixa and K. Wellens (eds.), L’influence des
sources sur l’unité et la fragmentation du droit international : travaux du séminaire tenu à Palma, les
20–21 Mai 2005, Brussels, Bruylant, 2006, at p. 76, referring to a conscience universelle.
704 See, for example, Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43,
at pp. 110–111, para. 161; and Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 3, at p. 46, para. 87.
and Herzegovina v. Serbia and Montenegro) (see footnote above), p. 104, para. 147.
706 Prosecutor v. Furundžija (see footnote 699 above), p. 569, paras. 153–154, where the Tribunal
expressly linked the status of the prohibition of torture as a peremptory norm of general international
law (jus cogens) to the “importance of the values it protects”, noting that “[c]learly, the jus cogens
nature of the prohibition against torture articulates the notion that the prohibition has now become one
of the most fundamental standards of the international community”. This holding was quoted with
approval by the European Court of Human Rights in Al-Adsani v. the United Kingdom, Application
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(5) The link between peremptory norms of general international law (jus cogens) and
fundamental values has equally been recognized in the decisions of national courts. 707 For
example, in Siderman de Blake v. Republic of Argentina, the United States Court of
Appeals for the Ninth Circuit quoted with approval the statement that peremptory norms of
general international law (jus cogens) are “derived from values taken to be fundamental by
the international community”.708 The Constitutional Tribunal of Peru referred to the
“extraordinary importance of the values underlying” jus cogens obligations.709 Similarly, in
the Arancibia Clavel case, the Supreme Court of Argentina held that the purpose of
peremptory norms of general international law (jus cogens) was “to protect States from
agreements concluded against some values and general interests of the international
community of States as a whole”.710
(6) The relationship between peremptory norms of general international law (jus
cogens) and values is also accepted in scholarly writings. Kolb states that the idea that
peremptory norms of general international law (jus cogens) are somehow connected with
no. 35763/97, Judgment of 21 November 2001, Grand Chamber, European Court of Human Rights,
Reports of Judgments and Decisions 2001-XI, para. 30. In the Case of Goiburú, et al. v. Paraguay
(Judgment of 22 September 2006 on Merits, Reparations and Costs, Inter-American Court of Human
Rights, Series C, No. 153, para. 128), the Court described offences prohibited by jus cogens as those
that “harm essential values and rights of the international community”. See also Michael Domingues
v. United States (Case 12.285, Inter-American Commission on Human Rights, Report No. 62/02 of 22
October 2002, para. 49), where that Commission linked peremptory norms of general international
law (jus cogens) to “public morality” and, more importantly, stated that they “derive their status from
fundamental values held by the international community”, noting that violations of jus cogens “shock
the conscience of humankind”.
707 See, for example, Bayan Muna as represented by Representative Satur Ocampo et al. v. Alberto
Romulo, in his capacity as Executive Secretary et al., Supreme Court of the Republic of the
Philippines (2011), at p. 56 noting that jus cogens norms are “deemed … fundamental to the existence
of a just international order”. Kaunda and Others v. President of the Republic of South Africa &
Others (Society for the Abolition of the Death Penalty in South Africa intervening as Amicus Curiae)
2005 (4) SA 235 (CC); Minister of Justice and Others v Southern African Litigation Centre and
Others, where the Court states that it agrees with the following sentiment: “As State sovereignty is
increasingly viewed to be contingent upon respect for certain values common to the international
community, it is perhaps unsurprising that bare sovereignty is no longer sufficient to absolutely shield
High officials from prosecution for jus cogens violations”. Alessi and Others v Germany and
Presidency of the Council of Ministers of the Italian Republic (intervening), Referral to the
Constitutional Court, Order No 85/2014, ILDC 2725 (IT 2014), 21 January 2014, Italy; Tuscany;
Florence; Court of First Instance (Non è in contestazione la natura di crimine internazionale del fatto
oggetto di causa e la sua potenzialità lesiva di diritti fondamentali della persona umana come
consacrati nella Costituzione italiana e nella Carta dei diritti fondamentali dell’Unione Europea
(2000/C 364/01). Anche considerato che nell’ordinamento interno, i diritti fondamentali della
persona riconosciuti dalla Costituzione si saldano necessariamente con le norme di jus cogens poste
a tutela dei diritti fondamentali della persona dal diritto internazionale venendo in rilievo i medesimi
valori tendenzialmente universali di tutela della dignità della persona).
708 Siderman de Blake v. Republic of Argentina, United States Court of Appeals, 965 F.2d 699 (9th Cir
1992), p. 715. This decision was cited with approval by lower courts in the Ninth Circuit including:
Estate of Hernandez-Rojas v. United States, 2013 U.S. Dist. LEXIS136922 (SD Cal. 2013), at p. 13;
Estate of Hernandez-Rojas v. United States, 2014 U.S. Dist. LEXIS101385 (SD Cal. 2014), at p. 9;
and Doe I v. Reddy, 2003 U.S. Dist. LEXIS26120 (ND Cal 2003), at pp. 32 and 34. See also the Ninth
Circuit’s opinion in Alvarez-Machain v. United States (331 F.3d 604 (9th Cir. 2003), p. 613.
Although that decision was eventually overturned by the Supreme Court in Sosa v. Alvarez-Machain,
et al. (542 U.S. 692 (2004)), the idea of peremptory norms reflecting values of the international
community was itself not addressed by the Supreme Court.
709 25% del número legal de Congresistas contra el Decreto Legislativo N° 1097, EXP. No. 0024-2010-
PI/TC, Judgment of the Jurisdictional Plenary of 21 March 2011, Constitutional Tribunal of Peru,
para. 53 (de la extraordinaria importancia de los valores que subyacen a tal [jus cogens] obligación
(“of the extraordinary importance of the values that underlie [the jus cogens] obligation”)).
710 Arancibia Clavel, Enrique Lautaro s/ homicidio calificado y asociación ilícita y otros, Case No. 259,
Judgment of 24 August 2004, Supreme Court of Argentina, para. 29 (es proteger a los Estados de
acuerdos concluidos en contra de algunos valores e intereses generales de la comunidad
internacional de Estados en su conjunto).
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fundamental values “is the absolutely predominant theory”.711 Hannikainen, describing the
role of peremptory norms of general international law (jus cogens), observes that “a legal
community may find it necessary to establish peremptory norms for the protection of such
overriding interests and values of the community itself”.712 Similarly, Pellet sees
peremptory norms of general international law (jus cogens) as paving a way towards a more
“moral value oriented public order”,713 while Tomuschat describes them as “the class of
norms that protect the fundamental values of the international community”.714
(7) It will be noted from the discussion above that courts and scholarly writers have
employed different terms to signify the relevance of values. For example, the phrases
“fundamental values”715 and “interests”,716 or variations thereof, have been employed
interchangeably. These different choices of words, however, are not mutually exclusive and
they indicate the important normative and moral background of the norm in question.
(8) As a second characteristic, draft conclusion 3 states that peremptory norms of
general international law are hierarchically superior to other norms of international law.
The fact that peremptory norms of general international law (jus cogens) are hierarchically
superior to other norms of international law is both a characteristic and a consequence of
peremptory norms of general international law (jus cogens). It is a consequence in that the
identification of a norm as a peremptory norm of general international law (jus cogens) has
the effect that it will be superior to other norms. It is, however, also a characteristic since
hierarchical superiority describes the nature of the peremptory norms of general
711 R. Kolb, Peremptory International Law: Jus Cogens – a General Inventory, Oxford, Hart Publishing,
2015, at p. 32. H. Olasolo Alonso, A. Mateus Rugeles and A. Contreras Fonseca, “La naturaleza
imperativa del principio ‘no hay paz sin justicia’ respecto a los máximos responsables del fenómeno
de la lesa humanidad y sus consecuencias para el ámbito de actuación de la llamada ‘justicia de
transición’”, Boletín mexicano de derecho comparado, vol. 49 (2016), pp. 135–171; C. Zelada, “Ius
cogens y derechos humanos: luces y sombras para una adecuada delimitación de conceptos”, Agenda
Internacional, vol. 8 (2002), pp. 129–156, at p. 139. A.A. Cançado Trindade, “Jus cogens: the
determination and the gradual expansion of its material content in contemporary international case-
law”, XXXV Course of International Law organized by the OAS Inter-American Juridical Committee
in Rio de Janeiro (August 2008), at pp. 6 and 12; K. Hossain, “The concept of jus cogens and the
obligation under the U.N. Charter”. Santa Clara Journal of International Law, vol. 3 (2005), pp.72–
98, at p. 73; L. Henkin, “International law and the inter-State sys”, Collected Courses of the Hague
Academy of International Law, vol. 216 (1989), at p. 60; J.R. Argés, “‘Ius cogens’: descripción,
valoración y propuestas de aplicación actual de un tópico jurídico clásico”, doctoral dissertation,
Universidade de Santiago de Compostela, 2017, at p. 273; A. de Beer, Peremptory Norms of General
International Law (Jus Cogens) and the Prohibition of Terrorism (Leiden, Brill, 2019), pp. 79–83. E.
Petrič, “Principles of the Charter of the United Nations: Jus cogens?” Czech Yearbook of Public and
Private International Law, vol. 17 (2016).
712 Hannikainen (see footnote 700 above), at p. 2.
713 A. Pellet, “Comments in response to Christine Chinkin and in defense of jus cogens as the best
bastion against the excesses of fragmentation”, Finnish Yearbook of International Law, vol. 17
(2006), pp. 83–90, at p. 87.
714 C. Tomuschat, “The Security Council and jus cogens”, in E. Cannizzaro (ed.), The Present and
Future of Jus Cogens, Sapienza Università Editrice, 2015, at p. 8, who describes jus cogens as “the
class of norms that protect the fundamental values of the international community”. See also H. Ruiz
Fabri, “Enhancing the rhetoric of jus cogens”, European Journal of International Law, vol. 23, No. 4
(2012), p. 1049, at p. 1050; M. den Heijer and H. van der Wilt “Jus cogens and the humanization and
fragmentation of international law”, Netherlands Yearbook of International Law, vol. 46 (2015), pp.
3–21, at p. 15; and D. Shelton, “Sherlock Holmes and the mystery of jus cogens”, ibid., pp. 23–50,
especially from p. 42.
715 Tomuschat, “The Security Council and jus cogens” (see footnote 714 above), at p. 8. See also
Siderman de Blake v. Republic of Argentina (footnote 708 above), at p. 715, where the United States
Court of Appeal referred to “values taken to be fundamental by the international community” and the
Constitutional Tribunal of Peru in 25% del número legal de Congresistas, referring to “extraordinary
importance of the values” (see footnote 709 above).
716 Hannikainen (see footnote 700 above), at p. 2, referring to “overriding interests”. See, also, Arancibia
Clavel (footnote 710 above), where the Supreme Court of Argentina referred to “general interests of
the international community” as the underlying source of peremptory norms.
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(9) International courts and tribunals have often referred to the hierarchical superiority
of peremptory norms of general international law (jus cogens). The International Criminal
Tribunal for the Former Yugoslavia, for example, held that a feature of the prohibition of
torture “relates to the hierarchy of rules in the international normative order” and that the
prohibition “has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a
higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary
rules”.717 The Inter-American Court of Human Rights has similarly accepted the
hierarchical superiority of peremptory norms of general international law (jus cogens).718 In
Kadi v. Council and Commission, the Court of First Instance of the European Communities
described peremptory norms of general international law (jus cogens) as a “body of higher
rules of public international law”.719 The European Court of Human Rights, in Al-Adsani v.
the United Kingdom, has similarly described a peremptory norm of general international
law (jus cogens) as “a norm that enjoys a higher rank in the international hierarchy than
treaty law and even ‘ordinary’ customary rules”.720
(10) The recognition of the hierarchical superiority of peremptory norms of general
international law (jus cogens) can also be seen in the practice of States. For example, the
High Court of Zimbabwe, in Mann v. Republic of Equatorial Guinea, described peremptory
norms of general international law (jus cogens) as those norms “endowed with primacy in
the hierarchy of rules that constitute the international normative order”.721 Courts in the
United States have similarly recognized the hierarchical superiority of norms of peremptory
norms of general international law (jus cogens). In Siderman de Blake v. Republic of
Argentina, the Court of Appeals for the Ninth Circuit stated that peremptory norms of
general international law (jus cogens) were those norms “deserving of the highest status in
international law”.722 Various terms denoting hierarchical superiority have been used by
different national courts to describe peremptory norms of general international law (jus
cogens). They have been held to have “the highest hierarchical position amongst all other
customary norms and principles”,723 to be “not only above treaty law, but over all other
sources of law”,724 and to be norms which “prevail over both customary international law
717 Prosecutor v. Furundžija (see footnote 699 above), at p. 569, para. 153.
718 García Lucero, et al. v. Chile, Judgment 28 August 2013, Inter-American Court of Human Rights,
Series C, No. 267, para. 123, note 139, quoting with approval Prosecutor v. Furundžija (see footnote
699 above). See also Michael Domingues v. United States (footnote 706 above), para. 49, describing
jus cogens norms as being derived from a “superior order of legal norms”.
719 Yassin Abdullah Kadi v. Council of the European Union and Commission of the European
Communities, Case No. T-315-01, Judgment of 21 September 2005, Second Chamber, Court of First
Instance of the European Communities, [2005] ECR II-3649, para. 226. See also Hassan v. Council of
the European Union and Commission of the European Communities, Case No. T-49/04, Judgment of
12 July 2006, Second Chamber, Court of First Instance of the European Communities, para. 92.
720 Al-Adsani v. the United Kingdom (see footnote 706 above), para. 60.
721 Mann v. Republic of Equatorial Guinea, Case No. 507/07, Judgment of 23 January 2008, High Court
of Zimbabwe, [2008] ZWHHC 1.
722 Siderman de Blake v. Republic of Argentina (see footnote 708 above), at p. 717.
723 Bayan Muna as represented by Representative Satur Ocampo, et al. v. Alberto Romulo, in his
capacity as Executive Secretary, et al., Case G.R. No. 159618, Judgment of 1 February 2011,
Supreme Court of the Republic of the Philippines, ILDC 2059 (PH2011), at para. 92. See also Certain
Employees of Sidhu & Sons Nursery Ltd., et al., Case Nos. 61942, 61973, 61966, 61995, Decision of 1
February 2012, BCLRB No. B28/2012, para. 44, where the British Columbia Labour Relations Board
(Canada), identified peremptory norms of general international law (jus cogens) as enjoying a “higher
rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules”. See also R
(on the application of Al Rawi and Others) v. Secretary of State for Foreign and Commonwealth
Affairs and Another, Case No. C1/2006/1064, Judgment of 12 October 2006, England and Wales
Court of Appeal (Civil Division), [2006] EWCA Civ 1279; and Regina v. Bow Street Metropolitan
Stipendiary Magistrate and Others: Ex Parte Pinochet Ugarte (No. 3), Decision of 24 March 1999,
England, House of Lords, [2000] 1 A.C. 147, p. 198.
724 Julio Héctor Simón y otros s/ privación ilegítima de la libertad, Case No. 17.768, Judgment of 14
June 2005, Supreme Court of Argentina, para. 48 (que se encuentra no sólo por encima de los
tratados sino incluso por sobre todas las fuentes del derecho (“which is not only above treaties but
even above all sources of law”)). See also Julio Lilo Mazzeo y otros s/rec. de casación e
inconstitucionalidad, Judgment of 13 July 2007, Supreme Court of Argentina, para. 15 (jus cogens “is
the highest source of international law” (se trata de la más alta fuente del derecho internacional)).
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and treaties”.725 States have also, in their statements, referred to the hierarchical superiority
of peremptory norms of general international law (jus cogens).726
(11) The hierarchical superiority of peremptory norms of general international law (jus
cogens) was recognized in the conclusions of the work of the Commission’s Study Group
on the fragmentation of international law.727 This characteristic is also generally recognized
in the writings of scholars.728
(12) Finally, with respect to the third characteristic, draft conclusion 3 provides that
peremptory norms of general international law (jus cogens) are universally applicable. The
universal applicability of peremptory norms of general international law (jus cogens) means
that they are binding on all subjects of international law that they address. The idea that
peremptory norms of general international law (jus cogens) are universally applicable, like
that of their hierarchical superiority, flows from non-derogability. The fact that a norm is
non-derogable, by extension, means that it is applicable to all since States cannot derogate
from it by creating their own special rules that conflict with it. The universal application of
peremptory norms of general international law (jus cogens) is both a characteristic and a
consequence of peremptory norms of general international law (jus cogens).
(13) In its Advisory Opinion on Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, the International Court of Justice referred to “the
universal character of the condemnation of genocide”, which it considered to be a
consequence of the fact that genocide “shocks the conscience of mankind and results in
725 Mani Kumari Sabbithi, et al. v. Major Waleed KH N.S. Al Saleh, et al., 605 F. Supp 2d 122 (United
States District Court for the District of Columbia 2009), p. 129. See also Mario Luiz Lozano v. the
General Prosecutor for the Italian Republic, Case No. 31171/2008, Appeal Judgment of 24 July
2008, First Criminal Division, Supreme Court of Cassation, Italy, p. 6 (dandosi prevalenza al
principio di rango più elevato e di jus cogens (“priority should be given to the principle of higher
rank and of jus cogens”)).
726 See, for example, the statements by the Netherlands (A/C.6/68/SR.25, para. 101) (“Jus cogens was
hierarchically superior within the international law system, irrespective of whether it took the form of
written law or customary law”); and the United Kingdom (Official Records of the United Nations
Conference on the Law Treaties, First Session, Vienna, 26 March–24 May 1968, Summary records of
the plenary meetings and of the meetings of the Committee of the Whole (A/CONF.39/11), 53rd
meeting, para. 53) (“in a properly organized international society there was a need for rules of
international law that were of a higher order than the rules of a merely dispositive nature from which
States could contract out”).
727 Conclusion (32) of the Conclusions of the work of the Study Group on the fragmentation of
international law (see footnote 702 above), at p. 182, para. 251 (“[a] rule of international law may be
superior to other rules on account of the importance of its content as well as the universal acceptance
of its superiority. This is the case of peremptory norms of international law (jus cogens)”). See,
further, the Report of the Study Group on the fragmentation of international law (footnote 702 above).
728 See, for support in the literature for the hierarchical superiority of peremptory norms of general
international law (jus cogens), A. Orakhelashvili, Peremptory Norms in International Law, Oxford,
2006, at p. 8; G. M. Danilenko, “International jus cogens: issues of law-making”, European Journal
of International Law, vol. 2, No. 1 (1991), pp. 42–65, at p. 42; and W. Conklin, “The peremptory
norms of the international community”, ibid., vol. 23, No. 3, pp. 837–861, at p. 838 (“[T]he very
possibility of a peremptory norm once again suggests a hierarchy of international law norms with
peremptory norms being the ‘fundamental standards of the international community’ at the
pinnacle”). See also M. M. Whiteman, “Jus cogens in international law, with a projected list”,
Georgia Journal of International and Comparative Law, vol. 7, No. 2 (1977), pp. 609–626, at p. 609;
and M. W. Janis, “The nature of jus cogens”, Connecticut Journal of International Law, vol. 3, No. 2
(Spring 1988), pp. 359–363, at p. 359. Tomuschat, for example, describes it as a certainty that
peremptory norms of general international law (jus cogens) are superior to other norms. See C.
Tomuschat, “Reconceptualizing the debate on jus cogens and obligations erga omnes: concluding
observations”, in C. Tomuschat and J.-M. Thouvenin (eds.), The Fundamental Rules of the
International Legal Order: Jus Cogens and Obligations Erga Omnes, Leiden, Martinus Nijhoff, 2006,
at p. 425 (“One thing is certain, however: the international community accepts today that there exists
a class of legal precepts which is hierarchically superior to ‘ordinary’ rules of international law”). See
also Cassese (footnote 701 above), at p. 159. For a contrary view, see Kolb (footnote 711 above), at p.
37, suggesting that the language of hierarchy should be avoided and that the focus should be on
voidness since the former concept – of hierarchy – leads to confusion and misunderstanding.
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great losses to humanity, and [which] is contrary to moral law”.729 The universal character
of peremptory norms of general international law (jus cogens) was affirmed by the
judgments of the International Criminal Tribunal for the Former Yugoslavia.730 The Inter-
American Court of Human Rights has described peremptory norms of general international
law (jus cogens) as being “applicable to all States” and as norms that “bind all States”.731
Similarly, in Michael Domingues v. United States, the Inter-American Commission on
Human Rights has determined that peremptory norms of general international law (jus
cogens) “bind the international community as a whole, irrespective of protest, recognition
or acquiescence”.732
(14) The universal character of peremptory norms of general international law (jus
cogens) is further reflected in decisions of national courts. In Tel-Oren et al. v. Libyan Arab
Republic, et al., the United States Court of Appeals for the District of Columbia referred to
peremptory norms of general international law (jus cogens) as “universal and obligatory
norms”.733 In Youssef Nada v. State Secretariat for Economic Affairs, the Swiss Federal
Supreme Court described peremptory norms of general international law (jus cogens) as
those norms that were “binding on all subjects of international law”.734 The view that
peremptory norms of general international law (jus cogens) have a universal character is
also reflected in the writings of scholars.735
(15) The characteristic of universal applicability of peremptory norms of general
international law (jus cogens) itself has two implications. First, the persistent objector rule
or doctrine is not applicable to peremptory norms of general international law (jus cogens).
This aspect is considered further in draft conclusion 14. As described in paragraph (7) of
the commentary to draft conclusion 1, a second implication of the universal application of
peremptory norms of general international law (jus cogens) is that such norms do not apply
on a regional or bilateral basis.736
729 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (see
footnote 703 above), at p. 23. This language has been reaffirmed by the International Court of Justice
in recent judgments. See, for example, the judgments referred to in footnote 699 above.
730 See, for example, Prosecutor v. Furundžija (footnote 699 above), at p. 571, para. 156. See also
Prosecutor v. Jelisić (footnote 699 above), p. 399 and pp. 431–433, para. 60.
731 Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03 of 17
September 2003, requested by the United Mexican States, Inter-American Court of Human Rights,
Series A, No. 18, p. 113, paras. 4–5.
732 Michael Domingues v. United States (see footnote 706 above), at para. 49.
733 Tel-Oren, et al. v. Libyan Arab Republic, et al., Judgment of 3 February 1984, 726 F.2d 774 (D.C.
Cir. 1984), 233 U.S.App. D.C. 384. See also Smith v. Socialist People’s Libyan Arab Jamahiriya,
Judgment of 26 November 1996, 101 F.3d 239 (2nd. Cir. 1996), at p. 242, in which the United States
Court of Appeals for the Second Circuit stated that peremptory norms “do not depend on the consent
of individual states, but are universally binding by their very nature”.
734 Youssef Nada v. State Secretariat for Economic Affairs (see footnote 698 above), para. 7.
735 See, for example, Conklin (footnote 728 above); C. Rozakis, The Concept of Jus Cogens in the Law of
Treaties, Amsterdam, North-Holland Publishing Company, 1976, at p. 78; G. Gaja, “Jus cogens
beyond the Vienna Convention”, in Collected Courses of the Hague Academy of International Law,
vol. 172 (1981), pp. 271–289, at p. 283; G. M. Danilenko, Law-Making in the International
Community, Dordrecht, Martinus Nijhoff Publishers, 1993, at p. 211; Alexidze (footnote 700 above);
P-M. Dupuy and Y. Kerbrat, Droit international public, 11th ed., Paris, Précis Dalloz, 2012, at p. 322
(la cohésion de cet ensemble normatif exige la reconnaissance par tous ses sujets d’un minimum de
règles imperatives (“the cohesion of this set of standards requires recognition by all its subjects of a
minimum of mandatory rules” ) (emphasis in original)); A. Rohr, La responsabilidad internacional
del Estado por violación al jus cogens, Buenos Aires, SGN Editora, 2015, at p. 6; D. Dubois, “The
authority of peremptory norms in international law: State consent or natural law?”, Nordic Journal of
International Law, vol. 78 (2009), pp. 133–175, at p. 135 (“A jus cogens or peremptory norm … is
applicable to all States regardless of their consenting to it”); and M. Saul, “Identifying jus cogens
norms: the interaction of scholars and international judges”, Asian Journal of International Law, vol.
5 (2014), pp. 26–54, at p. 31 (“Jus cogens norms are supposed to be binding on all states”).
736 States were virtually unanimous on this point: see, for example, Finland (on behalf of the Nordic
countries) (A/C.6/73/SR.24, para. 126); Greece (A/C.6/73/SR.27, para. 9); Malaysia (ibid., para. 104);
Portugal (A/C.6/73/SR.26, para. 119); South Africa (A/C.6/73/SR.27, para. 46); Thailand
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(16) The characteristics contained in draft conclusion 3 are themselves not criteria for the
identification of peremptory norms of general international law (jus cogens). The criteria
for the identification of peremptory norms of general international law (jus cogens) are
contained in Part Two of the draft conclusions. Though themselves not criteria, the
existence of the characteristics contained in draft conclusion 3 may provide an indication of
the peremptory status of a particular norm of general international law. In other words,
evidence that a norm reflects and protects fundamental values of the international
community of States as a whole, is hierarchically superior to other norms of international
law and is universally applicable, may serve to support or confirm the peremptory status of
a norm. A view was expressed in the Commission that the difference between “criteria” and
“characteristics” is obscure, as is the proposition that such “characteristics” provide
supplementary evidence.
Part Two
Conclusion 4
Criteria for the identification of a peremptory norm of general international
law (jus cogens)
To identify a peremptory norm of general international law (jus cogens), it is
necessary to establish that the norm in question meets the following criteria:
(a) it is a norm of general international law; and
(b) it is accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same
character.
Commentary
(1) Draft conclusion 4 sets out the criteria for the identification of a peremptory norm of
general international law (jus cogens). The criteria are drawn from the definition of
peremptory norms contained in article 53 of the 1969 Vienna Convention, which was
reproduced in draft conclusion 2. Such criteria must be shown to be present in order to
establish that a norm has a peremptory character.
(2) The chapeau of the draft conclusion states “[t]o identify a peremptory norm of
general international law (jus cogens), it is necessary to establish that the norm in question
meets the following criteria”. The phrase “it is necessary to establish” indicates that the
criteria must be shown to be present and that they should not be assumed to exist. It is thus
not sufficient to point to the importance or the role of a norm in order to show the
peremptory character of that norm. Rather, “it is necessary to establish” the existence of the
criteria enumerated in the draft conclusion.
(3) On the basis of the definition contained in draft conclusion 2, draft conclusion 4 sets
forth two criteria. First, the norm in question must be a norm of general international law.
This criterion is derived from the phrase “norm of general international law” in the
definition of peremptory norms (jus cogens) and is the subject of draft conclusion 5.
Second, the norm must be accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted, and which can be
modified only by a norm having the same character. It bears pointing out that this second
criterion, though composed of various elements, is a single composite criterion. This
criterion is the subject of draft conclusions 6 to 9. The two criteria are cumulative: they are
both necessary conditions for the establishment of the peremptory character of a norm of
general international law.
(4) The language of article 53 of the 1969 Vienna Convention is complex and has given
rise to different interpretations. The phrase “and which can be modified only by a
(A/C.6/73/SR.26, para. 96); the United Kingdom (A/C.6/73/SR.22, para. 84); and the United States
(A/C.6/73/SR.29, para. 34).
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subsequent norm of general international law having the same character” could, for
example, be viewed as a separate criterion.737 Yet, the essence of the second criterion is the
acceptance and recognition by the international community of States as a whole, not just
that the norm is one from which no derogation is permitted, but also that it can be modified
only by a subsequent norm of general international law having the same character. Hence,
the non-derogation and modification elements are not themselves criteria but rather, form
an integral part of the “acceptance and recognition” criterion. It is in this sense that the
second criterion, though composed of several elements, constitutes a single criterion.
(5) Alternatively, it has been suggested that the phrase “accepted and recognized”
qualifies “general international law” rather than the non-derogation and modification
clauses. Seen from this perspective, article 53 would have three criteria for proving that a
norm has peremptory character: (a) the norm must be a norm of general international law
that is accepted and recognized (as a norm of general international law) by the international
community of States as a whole; (b) it must be a norm from which no derogation is
permitted; and (c) it must be a norm that can only be modified by a subsequent peremptory
norm of general international law (jus cogens). Such an interpretation, however, raises at
least two problems. First, it would render the first criterion tautologous, since “general
international law” ought to be generally accepted and/or recognized by the international
community to begin with. Second, in that form the second and third criteria would not be
criteria but rather a consequence of peremptoriness and a description of how peremptory
norms of general international law (jus cogens) can be modified, respectively.
(6) Based on the foregoing, the two cumulative criteria in draft conclusion 4 imply a
two-step approach to the identification of a peremptory norm of general international law
(jus cogens). First, evidence that the norm in question is a norm of general international law
is required. Second, the norm must be shown to be accepted and recognized by the
international community of States as a whole as having a peremptory character. This two-
step approach was aptly described by the Commission in the commentaries to the draft
articles on the responsibility of States for internationally wrongful acts:
The criteria for identifying peremptory norms of general international law are
stringent. Article 53 of the 1969 Vienna Convention requires not merely that the
norm in question meet all the criteria for recognition as a norm of general
international law, binding as such, but further that it should be recognized as having
peremptory character by the international community of States as a whole. 738
Conclusion 5
Bases for peremptory norms of general international law (jus cogens)
1. Customary international law is the most common basis for peremptory norms
2. Treaty provisions and general principles of law may also serve as bases for
737 But see Knuchel (footnote 700 above), at pp. 49–136. See also the statement by the Islamic Republic
of Iran (A/C.6/71/SR.26, para. 118), where the two criteria identified are said to be, first, a norm
recognized by the international community of States as a whole as a norm from which no derogation
was permitted, and, second, a norm that could be modified only by a subsequent jus cogens norm.
738 Paragraph (5) of the commentary to article 26 of the draft articles on the responsibility of States for
internationally wrongful acts, Yearbook … 2001, vol. II (Part Two) and corrigendum, p. 85 (emphasis
added). See also Rivier, Droit international public, 2nd ed., Paris, Presses universitaires de France,
2013, at p. 566 (Ne peut accéder au rang de règle impérative qu’une provision déjà formalisée en
droit positif et universellement acceptée comme règle de droit (“Only a provision already formalized
in positive law and universally accepted as law can achieve the rank of peremptory norm”)). See also
U. Linderfalk, “The creation of jus cogens – making sense of article 53 of the Vienna Convention”,
Heidelberg Journal of International Law, vol. 71 (2011), pp. 359–378, at p. 371 (“by ‘the creation of
a rule of jus cogens’ I mean, not the creation of a rule of law, but rather the elevation of a rule of law
to a jus cogens status”).
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Commentary
(1) Draft conclusion 5 concerns the bases of peremptory norms of general international
law (jus cogens). It addresses the first criterion specified in draft conclusion 4 to identify
peremptory norms of general international law (jus cogens), namely that the norm in
question must be a norm of “general international law”. The draft conclusion is composed
of two parts. The first paragraph deals with customary international law as the basis for
peremptory norms of general international law (jus cogens), while the second paragraph
addresses treaty provisions and general principles of law as possible bases of such norms.
(2) The Study Group on fragmentation of international law established by the
Commission observed that “there is no accepted definition of ‘general international
law’”.739 The meaning of general international law will always be context-specific.740 In
some contexts, “general international law” could be construed in contradistinction to lex
specialis.741 In the context of peremptory norms of general international law (jus cogens),
however, the term “general international law” is not a reference to lex generalis or law
other than lex specialis. Rather, the word “general” in “norms of general international law”,
in the context of peremptory norms, refers to the scope of applicability of the norm in
question. Norms of general international law are thus those norms of international law that,
in the words of the International Court of Justice, “must have equal force for all members of
the international community”.742
(3) The words “basis” in the first paragraph and “bases” in the second paragraph of draft
conclusion 5 are to be understood flexibly and broadly. They are meant to capture the range
of ways that various sources of international law may give rise to the emergence of a
peremptory norm of general international law.
(4) The first paragraph of draft conclusion 5 states that customary international law,
which refers to a general practice accepted as law (opinio juris), is the most common basis
for peremptory norms of general international law (jus cogens). This is because customary
international law is the most obvious manifestation of general international law.743 This
position is borne out by State practice which confirms that customary international law is
739 Report of the Study Group on the fragmentation of international law: difficulties arising from the
diversification and expansion of international law (A/CN.4/L.702), para. 14 (10), note 11.
740 Ibid. See also footnote 667 to paragraph (2) of the commentary to draft conclusion 1 of the draft
conclusions on the identification of customary international law, Report of the International Law
Commission on the work of its Seventieth Session (A/73/10) (“general international law” is used in
various ways (not always clearly specified) including to refer to rules of international law of general
application, whether treaty law or customary international law or general principles of law.)
741 See, for example, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, I.C.J. Reports 1986, p. 14, at pp. 137–138, para. 274. See also Gabčíkovo-
Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at p. 76, para. 132.
742 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3, at pp. 38–39, para. 63.
743 See Cassese (footnote 701 above), at p. 164 (“The second question amounts to asking by which
means an international tribunal should ascertain whether a general rule or principle of international
law has acquired the status of a peremptory norm. Logically, this presupposes the existence of such a
customary rule or principle”) (emphasis in original); G. Cahin, La coutume internationale et les
organisations internationales : l’incidence de la dimension institutionnelle sur le processus
coutumier, Paris, Pédone, 2001, at p. 615, who states that customary international law is the normal, if
not exclusive, means of formation of jus cogens norms (voie normale et fréquente sinon exclusive).
See also Rivier (footnote 738 above), at p. 566 (Le mode coutumier est donc au premier rang pour
donner naissance aux règles destinées à alimenter le droit impératif (“Customary international law is
thus a primary source of rules that will form the basis of peremptory law”)). See, further, J.E.
Christófolo, Solving Antinomies between Peremptory Norms in Public International Law, Zurich,
Schulthess, 2016, p. 115 (“As the most likely source of general international law, customary norms
would constitute ipso facto and ipso iure a privileged source of ius cogens norms”); and A. Bianchi,
“Human rights and the magic of jus cogens”, European Journal of International Law, vol. 19 (2008),
p. 491, at p. 493 (“The possibility that jus cogens could be created by treaty stands in sharp contrast to
the view that peremptory norms can emerge only from customary law”). See, for a contrary view,
Janis (footnote 728 above), at p. 361.
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the most common basis for peremptory norms of general international law (jus cogens).744
The Supreme Court of Argentina, for example, recognized that peremptory norms relative
to war crimes and crimes against humanity emerged from rules of customary international
law already in force.745 Similarly, the Constitutional Tribunal of Peru stated that peremptory
norms of general international law (jus cogens) referred to “customary international norms
under the auspices of an opinio juris seu necessitatis”.746 In Bayan Muna v. Alberto
Romulo, the Supreme Court of the Philippines defined jus cogens as “the highest
hierarchical position among all other customary norms and principles”.747 Similarly, in The
Kenya Section of the International Commission of Jurists v. The Attorney-General and
Others, the High Court of Kenya determined the “duty to prosecute international crimes” to
be both a rule of customary international law and a peremptory norm of general
international law (jus cogens).748 In Kazemi Estate v. Islamic Republic of Iran, the Supreme
Court of Canada described peremptory norms of general international law (jus cogens) as a
“higher form of customary international law”.749 In Siderman de Blake v. Republic of
Argentina, the United States Court of Appeals for the Ninth Circuit described peremptory
norms of general international law (jus cogens) as “an elite subset of the norms recognized
as customary international law”.750 That court also noted that, in contrast to ordinary rules
of customary international law, jus cogens “embraces customary laws considered binding
on all nations”.751 In Buell v. Mitchell, the United States Court of Appeals for the Sixth
Circuit noted that “[s]ome customary norms of international law reach a ‘higher status’”,
namely that of peremptory norms of general international law (jus cogens).752 In
determining that the prohibition of the death penalty was not a peremptory norm of general
international law (jus cogens), the court made the following observation:
744 For statements by States, see the statement by Pakistan at the thirty-fourth session of the General
Assembly (A/C.6/34/SR.22, para. 8) (“The principle of the non-use of force, and its corollary, were
jus cogens not only by virtue of Article 103 of the Charter [of the United Nations], but also because
they had become norms of customary international law recognized by the international community”).
See also the statements by the United Kingdom (A/C.6/34/SR.61, para. 46) and Jamaica
(A/C.6/42/SR.29, para. 3) (“The right of peoples to self-determination and independence was a right
under customary international law, and perhaps even a peremptory norm of general international
law”).
745 Arancibia Clavel (see footnote 710 above), para. 28.
746 25% del número legal de Congresistas (see footnote 709 above), para. 53 (Las normas de ius cogens
parecen pues encontrarse referidas a normas internacionales consuetudinarias que bajo el auspicio
de una opinio iuris seu necessitatis (“jus cogens norms seem like they refer more to international
customary norms than to opinio juris seu necessitatis”)).
747 Bayan Muna v. Alberto Romulo (see footnote 723 above), para. 92.
748 The Kenya Section of the International Commission of Jurists v. the Attorney-General and Others,
Miscellaneous Criminal Application 685 of 2010, Judgment of 28 November 2011, High Court of
Kenya, [2011] eKLR, p. 14.
749 Kazemi Estate v. Islamic Republic of Iran, File No. 35034, Appeal decision of 10 October 2014,
Supreme Court of Canada, 2014 SCC 62, [2014] 3 S.C.R. 176, at p. 249, para. 151. Germany v. Milde
(Max Josef), Case No. 1072/2009, Appeal Judgment of 13 January 2009, First Criminal Section,
Supreme Court of Cassation, Italy, ILDC 1224 (IT 2009), para. 6 (“customary rules aiming to protect
inviolable human rights did not permit derogation because they belonged to peremptory international
law or jus cogens”).
750 Siderman de Blake v. Republic of Argentina (see footnote 708 above), at p. 715, citing Committee of
United States Citizens Living in Nicaragua v. Reagan (see footnote 698 above), at p. 940.
751 Ibid. This contrast between “ordinary” rules of customary international law and jus cogens –
suggesting the latter constitutes extraordinary rules of customary international law – is often based on
the decision of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v.
Furundžija (see footnote 699 above), at p. 569, para. 153, where a similar distinction is drawn. It has
been mentioned, with approval, in several decisions, including decisions of the courts of the United
Kingdom. See, for example, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others:
Ex Parte Pinochet Ugarte (No. 3) (footnote 723 above), at p. 198. See also R (on the application of Al
Rawi and Others) (ibid.).
752 Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001), at pp. 372–373.
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Moreover, since the abolition of the death penalty is not a customary norm of
international law, it cannot have risen to the level that the international community
as a whole recognizes it as jus cogens, or a norm from which no derogation is
permitted.753
(5) The jurisprudence of the International Court of Justice equally provides strong
evidence of the basis of peremptory norms of general international law (jus cogens) in
customary international law. In the case concerning Questions relating to the Obligation to
Prosecute or Extradite, the Court recognized the prohibition of torture as “part of
customary international law” that “has become a peremptory norm (jus cogens)”.754
Similarly, the Court’s description of “many [of the] rules of humanitarian law” as
constituting “intransgressible principles of international customary law” suggests that
peremptory norms – referred to here as “intransgressible principles” – have a customary
basis.755
(6) Other international courts and tribunals have also accepted customary international
law as the basis for peremptory norms of general international law (jus cogens).756 The
International Criminal Tribunal for the Former Yugoslavia, for example, has noted that the
prohibition of torture is a “norm of customary international law” and that it “further
constitutes a norm of jus cogens”.757 In Prosecutor v. Furundžija, that Tribunal described
peremptory norms as those that “enjoy a higher rank in the hierarchy of international law
than treaty law or even ‘ordinary’ customary rules”.758 Similarly, in Prosecutor v. Jelisić,
the Tribunal stated that “[t]here can be absolutely no doubt” that the prohibition of
genocide in the Convention on the Prevention and Punishment of the Crime of Genocide
falls “under customary international law” and is now “on the level of jus cogens”.759
(7) While customary international law is the most common basis for the emergence of
peremptory norms of general international law (jus cogens), other sources listed in Article
38, paragraph 1, of the Statute of the International Court of Justice may also form the basis
of peremptory norms of general international law (jus cogens) to the extent that they can be
regarded as norms of general international law. The second paragraph of draft conclusion 5
captures this idea by stating that “[t]reaty provisions and general principles of law may also
serve as bases for peremptory norms of general international law (jus cogens)”. The words
“may also” are meant to indicate that it is not impossible for provisions of a treaty and
general principles of law to form the basis of peremptory norms of general international law.
(8) The phrase “general principles of law” in the second paragraph of draft conclusion 5
refers to general principles of law in the sense of Article 38, paragraph 1 (c), of the Statute
of the International Court of Justice. It is appropriate to refer to the possibility of general
principles of law forming the basis of peremptory norms of general international law (jus
cogens).760 General principles of law are part of general international law since they have a
753 Ibid., at p. 373.

754 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
755 Legality of the Threat or Use of Nuclear Weapons (see footnote 699 above), at p. 257, para. 79.
756 See, for example, “Las Dos Erres” Massacre v. Guatemala, Judgment of 24 November 2009, Inter-
American Court of Human Rights, Series C, No. 211, at p. 41, para. 140.
757 Prosecutor v. Delalić, et al., Case No. IT-96-21-T, Judgment of 16 November 1998, Trial Chamber,
International Criminal Tribunal for the Former Yugoslavia, at para. 454.
758 Prosecutor v. Furundžija (see footnote 699 above), at p. 569, para. 153.
759 Prosecutor v. Jelisić (see footnote 699 above), at pp. 431–433, para. 60.
760 While there is little practice in support of general principles of law as a basis for peremptory norms of
general international law (jus cogens), the following cases, among others, may be considered in this
connection: Prosecutor v. Jelisić (footnote 699 above), at pp. 431–433, para. 60, where the
International Criminal Tribunal for the Former Yugoslavia, having accepted that the prohibition of
genocide was a norm of jus cogens, stated that the principles underlying the prohibition were
“principles … recognized by civilised nations”. The Inter-American Court of Human Rights
determined the right to equality to be a peremptory norm of general international law flowing from its
status as a general principle of law in its advisory opinion on the Juridical Condition and Rights of
Undocumented Migrants (see footnote 731 above), at p. 99, para. 101: “Accordingly, this Court
considers that the principle of equality before the law, equal protection before the law and non-
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general scope of application with equal force for all members of the international
community.761 In the context of the interpretation of treaties under article 31, paragraph 3
(c), of the 1969 Vienna Convention, the conclusions of the Study Group on fragmentation
of international law distinguished between the application of treaty law on the one hand,
and of general international law on the other.762 The latter, according to the Commission,
consists of both “customary international law and general principles of law”.763 There is,
moreover, support in writings for general principles of law as a source of peremptory norms
of general international law.764 The view was expressed, however, that there was
insufficient support from either the position of States or international jurisprudence to
support the proposition that peremptory norms of general international law (jus cogens)
may be based on general principles of law.
(9) Treaties are an important source of international law, as provided for in Article 38,
paragraph 1 (a) of the Statute of the International Court of Justice. The second paragraph of
draft conclusion 5 also identifies treaty provisions as a possible basis for peremptory norms
of general international law. The phrase “treaty provisions” is used instead of “treaties” to
indicate that what is at issue are the one or more norms contained in the treaty rather than
the treaty itself. Treaties, in most cases, are not “general international law” since they do
not usually have a general scope of application with “equal force for all members of the
international community”.765 There is, however, support in scholarly writings that
provisions in treaties can form the basis of the peremptory norms of international law (jus
cogens).766 While recognizing the special character of the Charter of the United Nations, it
discrimination belongs to jus cogens, because the whole legal structure of national and international
public order rests on it and it is a fundamental principle that permeates all laws.” See also the
statement by the Islamic Republic of Iran (A/C.6/71/SR.26, para. 120): “The general principles of law
to which [A]rticle 38 of the Statute of the International Court of Justice referred were the best
normative foundation for norms of jus cogens”.
761 See North Sea Continental Shelf (footnote 742 above), at pp. 38–39, para. 63, where the Court
described general international law as rules that, “by their very nature, must have equal force for all
members of the international community.”
762 Conclusions of the Study Group on the fragmentation of international law (see footnote 727 above), at
paras. 20–21.
763 Ibid.
764 See, for example, Knuchel (footnote 700 above), at p. 52 (“general principles [of law] may be
elevated to jus cogens if the international community of States as a whole accepts and recognizes
them as such”); Shelton, “Sherlock Holmes and the mystery of jus cogens” (footnote 714 above), at
pp. 30–34; A. A. Cançado Trindade, “Jus cogens: the determination and the gradual expansion of its
material content in contemporary international case-law”, in Organization of American States, Inter-
American Juridical Committee, XXXV Curso de Derecho Internacional, 2008, at p. 27. See also
Weatherall (footnote 701 above), at p. 133; and T. Kleinlein, “Jus cogens as the ‘highest law’?
Peremptory norms and legal hierarchies”, Netherlands Yearbook of International Law, vol. 46 (2016),
p. 173, at p. 195 (“a peremptory norm must first become general international law i.e. customary
international law or general principles of law pursuant to Article 38(1) of the [Statute of the
International Court of Justice]”). See also Conklin (footnote 728 above), at p. 840; O. M. Dajani,
“Contractualism in the law of treaties”, Michigan Journal of International Law, vol. 34 (2012), p. 1,
at p. 60; R. Nieto-Navia, “International peremptory norms (jus cogens) and international humanitarian
law”, in L. Chand Vorah, et al. (eds.), Man’s Inhumanity to Man: Essays on International Law in
Honour of Antonio Cassese, The Hague, 2003, p. 595, at pp. 613 et seq. (“One can state generally that
norms of jus cogens can be drawn generally from the following identified sources of international
law: (i) General treaties … and (ii) General principles of law recognized by civilized nations”);
Orakhelashvili (footnote 728 above), at p. 126; and Santalla Vargas (footnote 701 above), at p. 214
(“jus cogens derives from customary law and general principles of international law”).
765 North Sea Continental Shelf (see footnote 742 above), at pp. 38–39, para. 63 (“for, speaking
generally, it is a characteristic of purely conventional rules and obligations that, in regard to them,
some faculty of making unilateral reservations may, within certain limits, be admitted; – whereas this
cannot be so in the case of general or customary international law rules and obligations which, by
their very nature, must have equal force for all members of the international community”). See also
Bianchi (footnote 743 above), at p. 493 (“The possibility that jus cogens could be created by treaty
stands in sharp contrast to the view that peremptory norms can emerge only from customary law”).
766 G.I. Tunkin, “Is general international law customary law only?”, European Journal of International
Law, vol. 4 (1993), at p. 534, especially p. 541 (“I believe that international lawyers should accept
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is noteworthy that in the commentary to draft article 50 of the 1966 draft articles on the law
of treaties, the Commission identified “the law of the Charter [of the United Nations]
concerning the prohibition of the use of force” as a “conspicuous example of a rule of
international law having the character of jus cogens”.767 The role of treaties as an
exceptional basis for peremptory norms of general international law (jus cogens) may be
understood as a consequence of the relationship between treaty rules and customary
international law as described by the International Court of Justice in North Sea
Continental Shelf cases.768 In that case, the Court observed that a treaty rule can codify (or
be declaratory of) an existing general rule of international law,769 or the conclusion of a
treaty rule can help crystallize an emerging general rule of international law, 770 or that a
treaty rule can, after adoption, come to reflect a general rule on the basis of subsequent
practice.771 This general approach can also be seen in judgments of other international
courts and tribunals.772
(10) The phrase “accepted and recognized” has a particular relevance for the sources
which can serve as a basis for peremptory norms of general international law (jus cogens).
The text “accepted and recognized by the international community of States as a whole”
was adopted at the United Nations Conference on the Law of Treaties on the basis of a joint
proposal of Finland, Greece and Spain with regard to what later became article 53
(“recognized by the international community”),773 to which the Drafting Committee at the
Conference inserted the word “accepted”. As explained by the Chairperson of the Drafting
that general international law now comprises both customary and conventional rules of international
law”). See, specifically in the context of jus cogens, G. I. Tunkin, “Jus cogens in contemporary
international law”, The University of Toledo Law Review, vol. 1971, Nos. 1–2 (Fall–Winter 1971), p.
107, at p. 116 (“principles of jus cogens consist of ‘rules which have been accepted either expressly
by treaty or tacitly by custom ...’. Many norms of general international law are created jointly by
treaty and custom”). See also Knuchel (footnote 700 above), at p. 50 (“Contemporary international
law comprises, in the words of the [International Court of Justice], ‘instruments of a universal or
quasi-universal character,’ and nothing precludes future conventions from creating universally
binding norms which could be elevated to jus cogens”). See also Nieto-Navia (footnote 764 above), at
p. 613 (“One can state generally that norms of jus cogens can be drawn generally from the following
identified sources of international law: (i) General treaties … and (ii) General principles of law
recognized by civilized nations”). See however, Weatherall (footnote 701 above), at pp. 125–126;
Hannikainen (footnote 700 above), at p. 92; E. J. Criddle and E. Fox-Decent, “A fiduciary theory of
jus cogens”, Yale Journal of International Law, vol. 34 (2009), p. 331. See, further, Orakhelashvili
(footnote 728 above), at p. 113 (“The propensity for academics to place emphasis on custom seems to
follow from the general acknowledgment of the unsuitability of treaties to create peremptory norms”);
and U. Linderfalk, “The effect of jus cogens norms: whoever opened Pandora’s Box, did you ever
think about the consequences?”, European Journal of International Law, vol. 18 (2007), p. 853, at p.
860.
767 Paragraph (1) of the commentary to article 50 of the draft articles on the law of treaties (see footnote
696 above), vol. II, p. 247.
768 North Sea Continental Shelf (see footnote 742 above). See also draft conclusion 11 of the draft
conclusions on the identification of customary international law.
769 North Sea Continental Shelf (see footnote 742 above), at p. 38, para. 61.
770 Ibid., at pp. 38–41, paras. 61–69.
771 Ibid., at pp. 41–43, paras. 70–74. See also Margellos and Others v. Federal Republic of Germany,
Case No. 6/2002, Petition for Cassation, Judgment of 17 September 2002, Special Supreme Court of
Greece, para. 14 (“the provisions contained in the … Hague Regulations attached to the Hague
Convention IV of 1907 have become customary rules of international law (jus cogens)”.)
772 See for example, Prosecutor v. Tolimir, Case No. IT-05-88/2-T, Judgment of 12 December 2012,
Trial Chamber II, International Criminal Tribunal for the Former Yugoslavia, at para. 733 (“These
provisions of the [Convention on the Prevention and Punishment of the Crime of Genocide] are
widely accepted as customary international law rising to the level of jus cogens”); and Questions
Relating to the Obligation to Prosecute or Extradite (see footnote 754 above). See also the statement
by Mr. Ago at the 828th meeting of the Commission in 1966, Yearbook ... 1966, vol. I (Part One), p.
37, para. 15 (“Even if a rule of jus cogens originated in a treaty, it was not from the treaty as such that
it derived its character but from the fact that, even though derived from the treaty … , it was already a
rule of general international law”).
773 Official Records of the United Nations Conference on the Law of Treaties, First and Second Sessions,
26 March-24 May 1968 and 9 April-22 May 1969, vol. III, Documents of the Conference, p. 174,
document A/CONF.39/C.1/L.306 and Add.1 and 2.
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Committee, this was done because Article 38 of the Statute of the International Court of
Justice includes both the words “recognized” and “accepted”; “recognized” was used in
connection with conventions and treaties and general principles of law, while “accepted”
was used in connection with customary international law. 774
Conclusion 6
Acceptance and recognition
1. The requirement of “acceptance and recognition” as a criterion for
identifying a peremptory norm of general international law (jus cogens) is distinct
from acceptance and recognition as a norm of general international law.
2. To identify a norm as a peremptory norm of general international law (jus
cogens), there must be evidence that such a norm is accepted and recognized as one
from which no derogation is permitted and which can only be modified by a
Commentary
(1) The second criterion for the identification of a peremptory norm of general
international law (jus cogens) is that the norm in question must be recognized by the
international community of States as a whole as a norm from which no derogation is
permitted and which can only be modified by a subsequent norm having the same character.
As stated in paragraph (4) of the commentary to draft conclusion 4, this is a single criterion
composed of different elements. One element indicates that for a norm of general
international law to be peremptory, the international community of States as whole must
accept and recognize the peremptory character of that norm. The emphasis in this criterion
is thus on “acceptance and recognition”. The other elements of the criterion indicate two
aspects of that recognition and acceptance. First, they indicate what must be accepted and
recognized, namely that the norm is one from which no derogation is permitted and that it
can only be modified by a norm having the same character. Second, they indicate who must
do the accepting and recognizing, namely the international community of States as a whole.
Draft conclusion 7 addresses this latter aspect.
(2) The first paragraph of draft conclusion 6 seeks to make clear that the acceptance and
recognition referred to in the draft conclusion is distinct from the acceptance and
recognition required for other rules of international law. In other words, the “acceptance
and recognition” addressed in draft conclusion 6 is not the same as, for example,
acceptance as law (opinio juris), which is an element for the identification of customary
international law. The acceptance and recognition referred to in draft conclusion 6 is
qualitatively different. Acceptance as law (opinio juris) addresses the question whether
States accept a practice as a rule of law and is a constitutive element of customary
international law. Recognition as a general principle of law addresses the question whether
a principle has been recognized as provided for in Article 38, paragraph 1 (c), of the Statute
of the International Court of Justice. Acceptance and recognition, as a criterion of
peremptory norms of general international law (jus cogens), concerns the question whether
the international community of States as a whole recognizes a rule of international law as
having peremptory character.
(3) The second paragraph explains what is meant by the acceptance and recognition
required to elevate a norm of general international law to the status of a peremptory norm
of general international law (jus cogens). It states that the norm in question must be
accepted and recognized as one from which no derogation is permitted, and which can be
modified only by a subsequent norm having the same character. This implies that in order
to show that a norm is a peremptory norm of general international law (jus cogens), it is
necessary to provide evidence that the norm is accepted and recognized as having the
qualities mentioned, in other words that it is a norm from which no derogation is permitted
and that can only be modified by a subsequent norm having the same character. Although
draft conclusion 6 requires evidence of recognition and acceptance of two elements, it is not
774 Ibid., First Session, Summary records of the plenary meetings and of the meetings of the Committee of
the Whole, Summary record of the eightieth meeting of the Committee of the Whole, p. 471 at para. 4.
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necessary to provide evidence showing first recognition and, separately, acceptance. It is

sufficient to show, in general, the “acceptance and recognition” of the norm of general
international law as being peremptory in nature.
(4) The word “evidence” is used to indicate that it is not sufficient merely to assert that
a norm is accepted and recognized by the international community of States as a whole as
one from which no derogation is permitted. It is necessary to substantiate such a claim by
means of providing evidence. The evidence that may be relied upon is addressed in draft
conclusions 8 and 9.
(5) This framework of acceptance and recognition by the international community of
States as a whole is based on the generally accepted interpretation of article 53 of the 1969
Vienna Convention.775
Conclusion 7
International community of States as a whole
1. It is the acceptance and recognition by the international community of States
as a whole that is relevant for the identification of peremptory norms of general
2. Acceptance and recognition by a very large majority of States is required for
the identification of a norm as a peremptory norm of general international law (jus
cogens); acceptance and recognition by all States is not required.
3. While the positions of other actors may be relevant in providing context and
for assessing acceptance and recognition by the international community of States as
a whole, these positions cannot, in and of themselves, form a part of such acceptance
and recognition.
Commentary
(1) As already indicated in draft conclusion 6, the second criterion for the peremptory
character of a norm is that the norm in question must be accepted and recognized as having
a peremptory character. Draft conclusion 7 is concerned with the question of whose
acceptance and recognition is relevant for the identification of peremptory norms of general
international law (jus cogens). It is worth recalling that the Commission itself, when
adopting draft article 50 of its 1966 draft articles on the law of treaties, had not included the
element of recognition and acceptance by the international community of States as a whole,
stating only that a peremptory norm of general international law (jus cogens) is one “from
which no derogation is permitted”.776 Rather, this element was added by States in the course
775 See Committee of United States Citizens Living in Nicaragua (footnote 698 above), at p. 940
(“Finally, in order for such a customary norm of international law to become a peremptory norm,
there must be a further recognition by ‘the international community ... as a whole [that this is] a norm
from which no derogation is permitted’”); and Michael Domingues v. United States (footnote 706
above), at para. 85 (“Moreover, the Commission is satisfied, based upon the information before it,
that this rule has been recognized as being of a sufficiently indelible nature to now constitute a norm
of jus cogens, a development anticipated by the Commission in its Roach and Pinkerton decision”).
See also Prosecutor v. Simić, Case No. IT-95-9/2-S, Sentencing Judgment of 17 October 2002, Trial
Chamber, International Criminal Tribunal for the Former Yugoslavia, at para. 34. See, for discussion,
J. Vidmar, “Norm conflicts and hierarchy in international law: towards a vertical international legal
system?”, in E. de Wet and J. Vidmar (eds.), Hierarchy in International Law: the Place of Human
Rights, Oxford, 2011, p. 26. See also C. Costello and M. Foster, “Non-refoulement as custom and jus
cogens? Putting the prohibition to the test”, Netherlands Yearbook of International Law, vol. 46
(2016), p. 273, at p. 281 (“to be jus cogens, a norm must meet the normal requirements for customary
international law … and furthermore have that additional widespread endorsement as to its non-
derogability”); and A. Hameed, “Unravelling the mystery of jus cogens in international law”, British
Yearbook of International Law, vol. 84 (2014), p. 52, at p. 62. See, further, G. A. Christenson, “Jus
cogens: guarding interests fundamental to international society”, Virginia Journal of International
Law, vol. 28 (1987–1988), p. 585, at p. 593 (“The evidence would also need to demonstrate requisite
opinio juris that the obligation is peremptory, by showing acceptance of the norm’s overriding
quality”).
776 See article 50 of the draft articles on the law of treaties, (footnote 696 above), p. 247.
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of the 1968–1969 United Nations Conference on the Law of Treaties leading to the
adoption of the 1969 Vienna Convention. However, even during the deliberations in the
Commission, the link between peremptory norms of general international law (jus cogens)
and the acceptance and recognition of the “international community of States” had been
expressed by some members of the Commission.777
(2) The first paragraph of draft conclusion 7 states that it is the acceptance and
recognition by the international community of States as a whole that is relevant. This
paragraph seeks to make clear that it is the position of States that is relevant and not that of
other actors. While there have been calls for the inclusion of other actors whose acceptance
and recognition might be pertinent for the establishment of peremptory norms of general
international law (jus cogens),778 the current state of international law retains States as the
entities whose acceptance and recognition is relevant. In the context of the draft articles on
the law of treaties between States and international organizations or between international
organizations, the Commission considered using the phrase “international community as a
whole” and thus excluding the words “of States” from the phrase.779 However, on reflection,
the Commission decided that “in the present state of international law, it is States that are
called upon to establish or recognize peremptory norms”.780
(3) State practice and the decisions of international courts and tribunals have continued
to link the elevation of norms of general international law to peremptory status with State
acceptance and recognition. The International Criminal Court, for example, has stated that a
peremptory norm of general international law (jus cogens) requires recognition by States. 781
The International Court of Justice, likewise, in the case concerning Questions Relating to
the Obligation to Prosecute or Extradite, determined the peremptory character of the
prohibition of torture on the basis of instruments developed by States. 782 Domestic courts
have similarly continued to link the establishment of peremptory norms of general
international law (jus cogens) with State recognition. For example, in determining that the
prohibition of the death penalty was not a peremptory norm of general international law
(jus cogens), the United States Court of Appeals for the Sixth Circuit stated, in Buell v.
Mitchell, that “only sixty-one countries, or approximately thirty-two-percent of countries,
had completely abolished the use of the death penalty”. 783 While peremptory norms of
general international law (jus cogens) continue to be linked to notions of the conscience of
777 See the statement by Mr. Luna, summary records, 828th meeting (footnote 772 above), at para. 34
(“[jus cogens] was positive law created by States, not as individuals but as organs of the international
community”).
778 See, for example, Canada (A/C.6/71/SR.27, para. 9), indicating that “it would be beneficial for the
Commission … to enlarge the idea of the acceptance and recognition of peremptory norms to include
other entities, such as international and non-governmental organizations”.
779 See paragraph (3) of the commentary to draft article 53 of the draft articles on the law of treaties
between States and international organizations or between international organizations, Yearbook ...
1982, vol. II (Part Two), p. 56. See also, in the context of the current topic, the statement by Canada
(footnote above).
780 Paragraph (3) of the commentary to draft article 53 of the draft articles on the law of treaties between
States and international organizations or between international organizations.
781 Prosecutor v. Katanga, Case No. ICC-01/04-01/07-34-05-tENg, Decision on the Application for the
Interim Release of Detained Witnesses of 1 October 2013, Trial Chamber II, International Criminal
Court, at para. 30 (“peremptoriness [of the principle of non-refoulement] finds increasing recognition
among States”).
782 Questions Relating to the Obligation to Prosecute or Extradite (see footnote 754 above), at para. 99.
The Court cites, amongst others, the Universal Declaration of Human Rights, the Geneva
Conventions for the protection of war victims, the International Covenant on Civil and Political
Rights, General Assembly resolution 3452 (XXX) of 9 December 1975, and domestic legislation.
783 See, for example, Buell v. Mitchell (footnote 752 above), at p. 373. See also On Application of
Universally Recognized Principles and Norms of International Law and of International Treaties of
the Russian Federation by Courts of General Jurisdiction, Ruling No. 5 of 10 October 2003 as
amended on 5 March 2013, decision of the Plenary Session of the Supreme Court of the Russian
Federation, at para. 1 (“The universally recognized principles of international law should be
understood as the basic imperative norms of international law, accepted and recognized by the
international community of states as a whole, deviation from which is inadmissible”).
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mankind in practice and scholarly writings, 784 even then the material advanced to illustrate
recognition of the norms as peremptory norms of general international law (jus cogens)
remains acts and practice generated by States, including within international organizations,
such as treaties and General Assembly resolutions.
(4) Although draft conclusion 7 states that it is the acceptance and recognition of States
that is relevant for determining whether a norm has a peremptory character, that does not
mean that other actors do not play a role. Other actors may provide context and may
contribute to the assessment of the acceptance and recognition by the international
community of States as a whole. The subsidiary role of other actors has been recognized by
the Commission in other topics. In its draft conclusions on the identification of customary
international law, the Commission stated that it is “primarily ... the practice of States that
contributes to the formation, or expression, of rules of customary international law”, while
noting that “[i]n certain cases the practice of international organizations also contributes to
the formation, or expression, of rules of customary international law”. It went on to note
that the conduct of non-State actors, even though not practice for such purposes, “may be
relevant when assessing the practice” of States.785 Likewise, in the topic “Subsequent
agreements and subsequent practice in relation to the interpretation of treaties”, the
Commission concluded that the conduct of non-State actors did not constitute practice for
the purposes of article 31 of the 1969 Vienna Convention but that it may “be relevant when
assessing the subsequent practice of parties to a treaty”.786 Acts and practice of international
organizations may provide evidence for the acceptance and recognition of States when
determining whether a norm has a peremptory character.787 Ultimately, however, the
positions of entities other than States are not, of themselves, sufficient to establish the
acceptance and recognition required for the elevation of a norm of general international law
to peremptory status. This consideration is reflected in the third paragraph of draft
conclusion 7.
(5) The second paragraph of draft conclusion 7 seeks to explain what is meant by “as a
whole”. It states that what is required is the acceptance and recognition by a very large
majority of States. As explained by the Chairperson of the Drafting Committee during the
United Nations Conference on the Law of Treaties, the words “as a whole” are meant to
indicate that it was not necessary for the peremptory nature of the norm in question “to be
accepted and recognized ... by all States” and that it would be sufficient if “a very large
majority did so”.788 This sense is also captured by the phrase “community of States” as
opposed to simply “States”. The combination of the phrases “as a whole” and “community
of States” serves to emphasize that it is States as a collective or community, that must
784 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v. Serbia) (see footnote 704 above), at p. 46, para. 87; and A. Cançado Trindade, International Law
for Humankind: Towards a New Jus Gentium (I), Leiden, 2010, at p. 316 (“It is my view that there is,
in the multicultural world of our times, an irreducible minimum, which, in so far as international law-
making is concerned, rests on its ultimate material source: human conscience”).
785 Draft conclusion 4 of the draft conclusions on the identification of customary international law.
786 Draft conclusion 5 of the draft conclusions on subsequent agreements and subsequent practice in
relation to the interpretation of treaties (A/73/10, chap. IV).
787 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (footnote
703 above), p. 23: “The origins of the Convention show that it was the intention of the United Nations
to condemn and punish genocide …. The Genocide Convention was therefore intended by the
General Assembly and by the contracting parties to be definitely universal in scope”; see also
conclusion 12 of the conclusions on the identification of customary international law.
788 Mr. Yasseen, Chairperson of the Drafting Committee, Official Records of the United Nations
Conference on the Law Treaties, First Session ... (see footnote 726 above), 80th meeting, at para. 12.
See also E. de Wet, “Jus cogens and obligations erga omnes”, in D. Shelton (ed.) The Oxford
Handbook of International Human Rights Law, Oxford, 2013, p. 541, at p. 543 (“This threshold for
gaining peremptory status is high, for although it does not require consensus among all states … it
does require the acceptance of a large majority of states”). See, further, Christófolo (footnote 743
above), at p. 125 (“[The formation of peremptory norms reflects] a common will represent[ing] the
consent of an overwhelming majority of States. Neither one State nor a very small number of States
can obstruct the formative process of peremptory norms”).
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accept and recognize the non-derogability of a norm for it to be a peremptory norm of

(6) The Commission considered that acceptance and recognition by a simple “majority”
of States was not sufficient to establish the peremptory status of a norm. Rather, the
majority had to be very large. Determining whether there was a very large majority of
States accepting and recognizing the peremptory status of a norm was not, however, a
mechanical exercise in which the number of States is to be counted. The acceptance and
recognition by the international community of States as a whole requires that the
acceptance and recognition be across regions, legal systems and cultures. 789 The view was
expressed that in the light of importance of State consent and the extraordinarily strong
legal effect of peremptory norms of general international law (jus cogens), the recognition
and acceptance of the “overwhelming majority of States”, “virtually all States”,
“substantially all States” or “the entire international community of States as a whole” was
required.790
Conclusion 8
Evidence of acceptance and recognition
1. Evidence of acceptance and recognition that a norm of general international
law is a peremptory norm (jus cogens) may take a wide range of forms.
2. Such forms of evidence include, but are not limited to: public statements
made on behalf of States; official publications; government legal opinions;
diplomatic correspondence; legislative and administrative acts; decisions of national
courts; treaty provisions; and resolutions adopted by an international organization or
at an intergovernmental conference.
Commentary
(1) To identify a norm as a peremptory norm of general international law (jus cogens), it
is necessary to show the acceptance and recognition by the international community of
States as a whole of the non-derogability of such a norm. As implied in the second
paragraph of draft conclusion 7, this requires that evidence of acceptance and recognition
must be adduced. Draft conclusion 8 concerns the types of evidence necessary to identify
that the international community of States as a whole accepts and recognizes that a norm
has a peremptory character. Other subsidiary materials which may be relevant for the
identification of peremptory norms of general international law (jus cogens) is addressed in
draft conclusion 9.
(2) The first paragraph of draft conclusion 8 is a general statement. It provides that
evidence of acceptance and recognition may take a wide range of forms. In its judgment in
Questions Relating to the Obligation to Prosecute or Extradite, the International Court of
Justice relied on a variety of materials as evidence of the peremptory character of the
prohibition of torture.791 It should be recalled that what is at stake is the acceptance and
recognition of the international community of States as a whole. Therefore, any material
capable of expressing or reflecting the views of States would be relevant as evidence of
acceptance and recognition.
(3) The second paragraph of draft conclusion 8 describes the forms of materials that
may be used as evidence that a norm is a peremptory norm of general international law (jus
cogens). In keeping with the statement above that evidence of acceptance and recognition
may take various forms, the second paragraph of draft conclusion 8 states that the forms of
evidence “include, but are not limited to”. The list contained in the second paragraph of
draft conclusion 8 is therefore not a closed list. Other forms of evidence not mentioned in
789 See Michael Domingues v. United States (footnote 706 above), at para. 85 (“The acceptance of this
norm crosses political and ideological boundaries and efforts to detract from this standard have been
vigorously condemned by members of the international community as impermissible under
contemporary human rights standards”).
790 See, for example, Continental Shelf (Libyan Arab Jarmahiriya/Malta), Judgment, I.C.J. Reports
1985, p. 13, at p. 30, para. 27.
791 Questions Relating to the Obligation to Prosecute or Extradite (see footnote 754 above), para. 99.
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the second paragraph of draft conclusion 8, if reflecting or expressing the acceptance and
recognition of States, may be adduced in support of the peremptory character of a norm.
(4) It will be noted that the forms of evidence listed in paragraph 2 of draft conclusion 8
are similar to those provided for in paragraph 2 of conclusion 10, which concerns forms of
evidence of acceptance of law (opinio juris), of the Commission’s conclusions on the
identification of customary international law.792 This similarity is because the forms of
evidence identified are those from which, as a general matter, the positions, opinions and
views of States can be gleaned. The potential uses of these materials for the purposes of
satisfying the acceptance and recognition criterion for peremptory norms of general
international law (jus cogens), on one hand, and their use for the purposes of the
identification of customary international law must be distinguished, on the other hand. For
the former, the materials must establish acceptance and recognition by the international
community of States as a whole that the norm in question is one from which no derogation
is permitted, while for the latter the materials are used to assess whether States accept the
norm as a rule of customary international law.
(5) The non-exhaustive list of forms of evidence in the second paragraph of draft
conclusion 8 have in common that they are materials expressing or reflecting the views of
States. These materials are the result of processes capable of revealing the positions and
views of States. Treaties and resolutions adopted by States in international organizations or
at intergovernmental conferences may be an obvious example of such materials.793
Decisions of national courts may also be a reflection of the views of States and have been
relied upon in the determination of the peremptory character of norms. 794 Legislative and
administrative measures are yet another way by which States express their views and may
792 Conclusion 10 of the conclusions on the identification of customary international law. General
Assembly resolution 73/203 of 20 December 2018, annex.
793 In the case concerning Questions Relating to the Obligation to Prosecute or Extradite (see footnote
754 above), para. 99, the International Court of Justice referred to both treaties (“the 1949 Geneva
Conventions for the protection of war victims; the International Covenant on Civil and Political
Rights of 1966”) and resolutions (“the Universal Declaration of Human Rights of 1948; General
Assembly resolution 3452/30 of 9 December 1975 on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment”), in
expressing its recognition of the prohibition of torture as a peremptory norm of general international
law (jus cogens). See also Prosecutor v. Mucić, Judgment, the International Criminal Tribunal for the
Former Yugoslavia, 16 November 1998 (IT-96-21-T) and Prosecutor v. Delalić, et al. (see footnote
757 above), at para. 454, relying on the 1950 Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention on Human Rights), the 1966 International Covenant
on Civil and Political Rights, the 1984 Convention against Torture and Other Cruel, Inhuman or
Degrading Punishment or Treatment, and the 1969 American Convention on Human Rights (“Pact of
San José, Costa Rica”). See also Prosecutor v. Furundžija (footnote 699 above), at p. 563, para. 144.
In reaching its decision on the peremptory character of the prohibition of the execution of individuals
under the age of 18, the Inter-American Commission on Human Rights in Michael Domingues v.
United States (see footnote 706 above), at para. 85, relied on the ratification by States of treaties such
as the 1966 International Covenant on Civil and Political Rights, the 1989 Convention on the rights of
the child, and the 1969 American Convention on Human Rights (“Pact of San José, Costa Rica”),
which it said were “treaties in which this proscription is recognized as non-derogable”. See also the
separate opinion of Vice-President Ammoun in Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16, at p. 79, relying on General
Assembly and Security Council resolutions for the conclusion that the right to self-determination is a
peremptory norm. See also the Written Observations Submitted by the Government of the Solomon
Islands to the International Court of Justice on the request by the World Health Organization for an
Advisory Opinion on the Legality of the Use of Nuclear Weapons in View of their Effects on Human
Health and the Environment, at pp. 39–40, para. 3.28 (“It is quite normal in international law for the
most common and the most fundamental rules to be reaffirmed and repeatedly incorporated into
treaties”).
794 See, for example, Prosecutor v. Furundžija (footnote 699 above), at p. 569, note 170. See also Al-
Adsani v. the United Kingdom (footnote 706 above), at paras. 60–61, where the Court relied, inter
alia, on Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others: Ex Parte Pinochet
Ugarte (No. 3) (footnote 723 above) and “other cases before … national courts” in its assessment of
the peremptory character of the prohibition of torture.
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thus also provide evidence of the peremptory character of a norm of general international
law.795 States also routinely express their views about the peremptory character of particular
norms through public statements and statements in international fora. 796
(6) In addition to the caveat that the forms of evidence in the second paragraph of draft
conclusion 8 are non-exhaustive, it should also be recalled that such materials must speak
to whether the norm has a peremptory character. The question is not whether a particular
norm has been reflected in these materials but, rather, whether the materials establish the
acceptance and recognition of the international community of States as a whole that the
norm in question is one from which no derogation is permitted. These materials are not,
individually, conclusive of the peremptory character of a norm. The materials have to be
weighed and assessed together, in their context, in order to determine whether they evince a
acceptance and recognition of the international community of States as a whole of the
peremptory character of the norm in question.
Conclusion 9
Subsidiary means for the determination of the peremptory character of norms
of general international law
1. Decisions of international courts and tribunals, in particular of the
International Court of Justice, are a subsidiary means for determining the
peremptory character of norms of general international law.
2. The works of expert bodies established by States or international
organizations and the teachings of the most highly qualified publicists of the various
nations may also serve as subsidiary means for determining the peremptory
character of norms of general international law.
Commentary
(1) To identify a norm as being a peremptory norm of general international law (jus
cogens), it is necessary to provide evidence that the international community of States as a
whole accepts and recognizes the said norm as one from which no derogation is permitted
and which can only be modified by a subsequent norm of general international law having
the same character. As explained in draft conclusion 8, the forms of evidence relevant for
this purpose are materials expressing or reflecting the views of States. Other materials, not
reflecting the views of States, may also be relevant as subsidiary means for the
determination of the peremptory character of a norm. Draft conclusion 9 concerns some
such subsidiary means. It is important to emphasize that the word “subsidiary” in this
context is not meant to diminish the importance of such materials, but is rather aimed at
expressing the idea that those materials facilitate the identification of “acceptance and
recognition” but do not, themselves, constitute such acceptance and recognition.797 Draft
conclusion 9 concerns such other materials.
795 In coming to the conclusion that the prohibition of torture was of a peremptory character, the
International Court of Justice in the case concerning Questions Relating to the Obligation to
Prosecute or Extradite (see footnote 754 above), at para. 99, referred to the fact that the prohibition
had “been introduced into the domestic law of almost all States”. Similarly, in its decision on the
prohibition of the execution of individuals below the age of 18, the Inter-American Commission in
Michael Domingues v. United States (see footnote 706 above), at para. 85, took account of the fact
that States had introduced relevant amendments to their national legislation.
796 See, for example, on aggression: Ghana (Official Records of the United Nations Conference on the
Law Treaties, First Session ... (footnote 726 above), 53rd meeting, para. 15); the Netherlands
(A/C.6/SR.781, para. 2); Uruguay (Official Records of the United Nations Conference on the Law
Treaties, First Session ... (footnote 726 above), 53rd meeting, para. 48); Japan (S/PV.2350); Belarus
(A/C.6/73/SR.26, para. 90); and Mozambique (A/C.6/73/SR.28, para. 3). In this respect, in the case
concerning Questions Relating to the Obligation to Prosecute or Extradite (see footnote 754 above),
at para. 99, the International Court of Justice referred to the fact that “acts of torture are regularly
denounced within national and international fora” in asserting the peremptory character of the
prohibition of torture.
797 See also paragraph (2) of the commentary to conclusion 13 of the draft conclusions on customary
international law (footnote 740 above) (“The term ‘subsidiary means’ denotes the ancillary role of
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(2) The first paragraph of draft conclusion 9 provides that decisions of international
courts and tribunals are a subsidiary means for determining the peremptory character of
norms of general international law. This provision mirrors Article 38, paragraph 1 (d), of
the Statute of the International Court of Justice, which provides, inter alia, that judicial
decisions are a “subsidiary means for the determination of rules of law”. It is partly for that
reason that the first paragraph of draft conclusion 9 uses the words “means for determining”
instead of “identifying” which has more often been resorted to in the present draft
conclusions. While Article 38, paragraph 1 (d), of the Statute of the International Court of
Justice refers to “judicial decisions”, which includes both decisions of international courts
and decisions of national courts, the first paragraph of draft conclusion 9 refers only to
decisions of international courts and tribunals. In addition to serving as subsidiary means
under Article 38, paragraph 1 (d), of the Statute of the International Court of Justice,
decisions of national courts may also constitute primary evidence under draft conclusion 8.
(3) There is an abundance of examples of decisions of international courts relying on
other decisions of international courts and tribunals. As an example, the International
Criminal Tribunal for the Former Yugoslavia, in Prosecutor v. Furundžija, determined that
the prohibition of torture was a peremptory norm of general international law (jus cogens)
on the basis of, inter alia, the extensiveness of the prohibition including the fact that States
are prohibited “from expelling, returning or extraditing” a person to a place where they may
be subject to torture. 798 To demonstrate the extensiveness of this prohibition, the Court
referred to judgments of, inter alia, the European Court of Human Rights. 799 The judgment
of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v.
Furundžija has itself often been referred to, to illustrate the peremptory status of the
prohibition of torture. 800 The Special Tribunal for Lebanon in Prosecutor v. Ayyash, et al.,
concluded that “[t]he principle of legality (nullum crimen sine lege) … [is] so frequently
upheld by international criminal courts with regard to international prosecution of crimes
that it is warranted to hold that by now it has the status of a peremptory norm (jus
cogens)”.801 The Special Tribunal for Lebanon, in El Sayed, determined that the right to
access to justice has “acquired the status of a peremptory norm (jus cogens)” based on,
inter alia, jurisprudence of both national and international courts. 802 The decision in El
Sayed provides a particularly apt illustration of the manner in which decisions of
international courts and tribunals can be a subsidiary means for the identification of
peremptory norms of general international law (jus cogens). There, the Tribunal, in the
such decisions in elucidating the law, rather than being themselves a source of international law (as
are treaties, customary international law and general principles of law). The use of the term
‘subsidiary means’ does not, and is not intended to, suggest that such decisions are not important for
the identification of customary international law”).
798 Prosecutor v. Furundžija (see footnote 699 above), para. 144.
799 Soering v. the United Kingdom, Application no. 14038/88, Judgment of 7 July 1989, European Court
of Human Rights; Cruz Varas and Others v. Sweden, Application no. 15576/89, Judgment of 20
March 1991, European Court of Human Rights, Series A: Judgments and Decisions, vol. 201; and
Chahal v. the United Kingdom, Application no. 22414/93, Judgment of 15 November 1996, Grand
Chamber, European Court of Human Rights.
800 See, for example, Al-Adsani v. the United Kingdom (footnote 706 above), at para. 30; and García
Lucero, et al. v. Chile (footnote 718 above), at paras. 123–124, especially note 139. See also,
generally, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others: Ex Parte Pinochet
Ugarte (No. 3) (footnote 723 above), where several of the Lords referred to Prosecutor v. Furundžija
(footnote 699 above).
801 Prosecutor v. Ayyash, et al., Case No. STL-11-01/I, Interlocutory Decision of 16 February 2011 on
the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Appeals
Chamber, Special Tribunal for Lebanon, at para. 76. For this decision the Court relied on, inter alia,
the judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v.
Duško Tadić (Case No. IT-94-1-AR-72, Decision of 2 October 1995 on the Defence Motion for
Interlocutory Appeal on Jurisdiction, International Criminal Tribunal for the Former Yugoslavia);
Prosecutor v. Delalić, et al. (see footnote 757 above); and Prosecutor v. Akayesu, Case No. ICTR-96-
4-T, Judgment of 2 September 1998, Trial Chamber I, International Criminal Tribunal for Rwanda.
802 El Sayed, Case No. CH/PRES/2010/01, Order of 15 April 2010 assigning Matter to Pre-Trial Judge,
President of the Special Tribunal of Lebanon, para. 29, referring in particular to Case of Goiburú, et
al. v. Paraguay (see footnote 706 above).
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judgment written by its then-President, Antonio Cassese, relied on various forms of

evidence, including evidence listed in draft conclusion 8, to come to the conclusion that,
taken as a whole, the evidence suggested that there was an acceptance and recognition of
the peremptory character of the right of access to courts. 803 The decision then refers to the
decision in Case of Goiburú, et al. v. Paraguay, in which the Inter-American Court of
Human Rights determined that the right of access to the courts is a peremptory norm of
general international law (jus cogens), in order to give context to the primary evidence
relied upon and to solidify that evidence.804
(4) The first paragraph of draft conclusion 9 explicitly mentions the International Court
of Justice as a subsidiary means for the determination of the peremptory character of norms.
There are several reasons for the express mention of the International Court of Justice. First,
it is the principal judicial organ of the United Nations and its members are elected by the
main political organs of the United Nations. Second, it remains the only international court
with general subject-matter jurisdiction. Moreover, while the Court has been reluctant to
pronounce on peremptory norms, its jurisprudence has left a mark on the development both
of the general concept of peremptory norms and of particular peremptory norms, even in
cases where peremptory norms of general international law (jus cogens) were not explicitly
invoked. In particular, its advisory opinions on Reservations to the Convention on the
Prevention and Punishment of Genocide, the Legal Consequences for States of the
Continued Presence of South Africa in Namibia and the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, as well as its decisions in
Barcelona Traction, Light and Power Company, Limited, East Timor, and the Military and
Paramilitary Activities in and against Nicaragua, have made major contributions to the
understanding and evolution of peremptory norms of general international law (jus cogens),
notwithstanding the fact that they do not expressly and unambiguously invoke, for their
respective conclusions, peremptory norms.805 When the International Court of Justice has
pronounced itself expressly on peremptory norms, its decisions have been even more
influential. The judgment of the Court in the Obligation to Prosecute or Extradite case, for
example, has confirmed the peremptory status of the prohibition of torture. 806
(5) The second paragraph of draft conclusion 9 concerns other subsidiary means for the
determination of the peremptory character of norms of general international law. As with
decisions of international courts and tribunals, these other means are subsidiary in the sense
that they facilitate the determination of whether there is acceptance and recognition by
States but they themselves are not evidence of such acceptance and recognition. The
paragraph lists, as examples of other subsidiary means, the works of expert bodies and
teachings of the most highly qualified publicists of the various nations, also referred to as
scholarly writings. The use of the phrase “may also” in paragraph 2, in contradistinction to
the word “are” which is used to qualify decisions of international courts and tribunals in
paragraph 1, indicates that less weight may attach to works of expert bodies and scholarly
writings in comparison to judicial decisions. The relevance of these other materials as
subsidiary means depends on other factors, including on the reasoning of the works or
writings, the extent to which the views expressed are accepted by States and the extent to
which such views are corroborated either by other forms of evidence listed in draft
conclusion 8 or decisions of international courts and tribunals.
(6) The first category relates to the works of expert bodies. The phrase “established by
States or international organizations” indicates that the paragraph refers to organs
established by international organizations and subsidiary bodies of such organizations, such
803 See ibid., paras. 21–28.

805 See Reservations to the Convention on the Prevention and Punishment of the Genocide (footnote 703
above); Legal Consequences for States of the Continued Presence of South Africa in Namibia
(footnote 793 above), p. 16; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136; Legality of the Threat or Use of
Nuclear Weapons (footnote 699 above); Barcelona Traction, Light and Power Company, Limited,
Judgment, I.C.J. Reports 1970, p. 3; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports
1995, p. 90; and Military and Paramilitary Activities in and against Nicaragua (footnote 741 above).
806 See Questions relating to the Obligation to Prosecute or Extradite (footnote 754 above), at para. 99.
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as the International Law Commission as well as expert treaty bodies. The qualification was
necessary to emphasize that the expert body in question had to have an intergovernmental
mandate and had to be created by States. The use of the phrase “established by States or by
international organizations” means that private organizations which do not have an
intergovernmental mandate are not included in the category of expert bodies. This does not
mean that the works of expert bodies without an intergovernmental mandate are irrelevant.
The works of the Institute of International Law or the International Law Association may,
for example, qualify as “teachings of the most highly qualified publicists” under paragraph
2 of draft conclusion 9.807 The term “works” covers not only the final outcomes of the
expert bodies but also their work leading up to the final outcome.
(7) The reliance on other materials is also supported by courts. In RM v. the Attorney-
General, for example, the High Court of Kenya relied on the Human Rights Committee
general comment No. 18 on non-discrimination808 for its determination that non-
discrimination is a peremptory norm of general international law (jus cogens).809 Similarly,
for its conclusion that the principle of non-refoulement was a peremptory norm of general
international law (jus cogens), the International Criminal Court relied on, inter alia, an
advisory opinion of the Office of the United Nations High Commissioner for Refugees. 810
Similarly, the finding by the International Criminal Tribunal for the Former Yugoslavia in
Prosecutor v. Furundžija that the prohibition of torture was a norm of jus cogens was
based, inter alia, on observations of the Inter-American Commission of Human Rights, the
Human Rights Committee, and a report of a Special Rapporteur, Mr. Kooijmans. 811
(8) The Commission has also often been referred to in the assessment of whether a
particular norm has attained peremptory status or not. In assessing the status of the
prohibition of the use of force, the International Court of Justice observed that the
“International Law Commission … expressed the view that ‘the law of the Charter [of the
United Nations] concerning the prohibition of the use of force in itself constitutes a
conspicuous example of a rule in international law having the character of jus cogens’”.812
Scholarly writings that provide a list of generally accepted peremptory norms of general
international law (jus cogens) often rely on the list provided by the Commission in the
commentary to draft article 26 of the articles on responsibility of States for internationally
wrongful acts.813 The Commission’s own work may thus also contribute to the
identification of peremptory norms of general international law (jus cogens).
807 See paragraph (5) of the commentary to draft conclusion 14 of the draft conclusions on the
identification of customary international law.
808 Human Rights Committee, general comment No. 18 (1989) on non-discrimination, Official Records
of the General Assembly, Forty-fifth Session, Supplement No. 40, vol. I (A/45/40 (Vol. I)), annex VI,
sect. A, para. 1.
809 RM v. Attorney-General, Civil Case No. 1351 2002 (O.S.), Judgment of 1 December 2006, High
Court of Kenya at Nairobi, [2006] eKLR, at p. 18.
810 See Prosecutor v. Katanga (footnote 781 above), at para. 30, referring to the 2007 Advisory Opinion
on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention
relating to the Status of Refugees and its 1967 Protocol of the Office of the United Nations High
Commissioner for Refugees. The Court also referred to the several Executive Committee Conclusions
of the Office of the United Nations High Commissioner for Refugees.
811 See Prosecutor v. Furundžija (footnote 699 above), at paras. 144 and 153. The Tribunal referred to
the Inter-American Convention on Human Rights, General Comment on Article 7 and general
comment No. 24 of the Human Rights Committee, and a report by Special Rapporteur Kooijmans.
812 Military and Paramilitary Activities in and against Nicaragua (see footnote 741 above), at pp. 100–
101, para. 190. See also Re Víctor Raúl Pinto, Re, Pinto (Víctor Raúl) v. Relatives of Tomás Rojas,
Case No. 3125-94, Decision on Annulment of 13 March 2007, Supreme Court of Chile, ILDC 1093
(CL 2007), at paras. 29 and 31.
813 Paragraph (5) of the commentary to article 26 of the articles on the responsibility of States for
internationally wrongful acts. See den Heijer and van der Wilt (footnote 714 above), at p. 9, referring
to the norms in the list as those “beyond contestation”. See also Christófolo (footnote 743 above), at
p. 151; and Weatherall (footnote 701 above), at p. 202. See also de Wet (footnote 788 above), at p.
543. She relies, however, not on a Commission list, but rather on the list from paragraph 374 of the
report of the Study Group of the Commission (see footnote 702 above), with a list that is slightly
modified from that of the Study Group. For example, in the list de Wet provides, “the right of self-
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(9) The second paragraph refers to “teachings of the most highly qualified publicists”,
which may also be useful as subsidiary material for the identification of peremptory norms
of international law.814 This refers to scholarly writings and other works that may be used as
secondary material in assessing and providing context to the primary forms of acceptance
and recognition of peremptory status. It is important to emphasize that the weight to be
accorded to such teachings will vary greatly depending on the quality of the reasoning and
the extent to which they find support in State practice and in the decisions of international
courts and tribunals.815
(10) It is worth pointing out that the subsidiary means identified in paragraphs 1 and 2 of
the draft conclusion 9 are not exhaustive. The means identified in draft conclusion 9 are,
however, the most common subsidiary means that have been relied upon in the
identification of peremptory norms of general international law (jus cogens).
Part Three
Legal consequences of peremptory norms of general international law (jus
cogens)
Conclusion 10
Treaties conflicting with a peremptory norm of general international law (jus
cogens)
1. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law (jus cogens). The provisions of such a treaty have
no legal force.
2. If a new peremptory norm of general international law (jus cogens) emerges,
any existing treaty which is in conflict with that norm becomes void and terminates.
The parties to such a treaty are released from any obligation further to perform the
treaty.
Commentary
(1) Draft conclusion 10 concerns the invalidity and termination of treaties on account of
being in conflict with peremptory norms of general international law (jus cogens). The
invalidity of treaties is the legal effect that is most closely associated with peremptory
defence” is included as a peremptory norm of general international law (jus cogens) in its own right,
while the list of the Study Group contains the “prohibition of aggression” but not “self-defence” as an
independent peremptory norm of general international law (jus cogens).
814 See, for example, Nguyen Thang Loi v. Dow Chemical Company (In re Agent Orange Product
Liability Litigation, 373 F. Supp. 2d 7 (E.D.N.Y. 2005), at p. 108, relying on M.C. Bassiouni,
“Crimes against humanity”, in R. Gutman and D. Rieff (eds.), Crimes of War: What the Public
Should Know, Norton, 1999; Prosecutor v. Kallon and Kamara, Case Nos. SCSL-2004-15-AR72(E)
and SCSL-2004-16-AR72(E), Decision of 13 March 2004 on Challenge to Jurisdiction: Lomé Accord
Amnesty, Appeals Chamber, Special Court for Sierra Leone, at para. 71, relying on L. Moir, The Law
of Internal Armed Conflict, Cambridge, 2002; and Bayan Muna v. Alberto Romulo (see footnote 723
above), at p. 55, citing M.C. Bassiouni, “International crimes: jus cogens and obligatio erga omnes”,
Law and Contemporary Problems, vol. 59 (1996), p. 63. See also Siderman de Blake v. Republic of
Argentina (footnote 708 above), at p. 717, citing several authors, including K. Parker and L.B.
Neylon, “Jus cogens: compelling the law of human rights”, Hastings International and Comparative
Law Review, vol. 12, No. 2 (Winter 1989), pp. 411–463; and K. C. Randall, “Universal jurisdiction
under international law”, Texas Law Review, vol. 66 (1987–1988), pp. 785–841, in support of the
proposition that the prohibition of torture is a peremptory norm of general international law (jus
cogens).
815 See also paragraph (3) of the commentary to draft conclusion 14 of the draft conclusions on the
identification of customary international law (“There is need for caution when drawing upon writings,
since their value for determining the existence of a rule of customary international law varies: this is
reflected in the words ‘may serve as’. First, writers sometimes seek not merely to record the state of
the law as it is (lex lata) but to advocate its development (lex ferenda). In doing so, they do not
always distinguish (or distinguish clearly) between the law as it is and the law as they would like it to
be. Second, writings may reflect the national or other individual viewpoints of their authors. Third,
they differ greatly in quality. Assessing the authority of a given work is thus essential”).
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norms of general international law.816 Article 53 of the 1969 Vienna Convention has rarely
been relied upon to invalidate a treaty, so much so that it has been questioned whether it
remains operative.817 The fact that treaties have rarely been invalidated on account of a
conflict with peremptory norms is, however, not because the rule in article 53 is not
accepted by States, but simply because States do not generally enter into treaties that
conflict with peremptory norms of general international law (jus cogens). Thus, the rule
that a treaty in conflict with peremptory norms is invalid continues to be applicable even
though it has rarely been applied.
(2) While instances of invalidity of treaties on account of conflict with peremptory
norms of general international law (jus cogens) have been rare, this does not mean that
there has been no practice at all that may be relevant to this question. There have been
statements made by individual States assessing whether a particular treaty was consistent or
not with a peremptory norm of general international law (jus cogens) and, accordingly,
whether it could be considered as valid or not.818 The General Assembly has adopted
816 Danilenko, Law-Making in the International Community (see footnote 735 above), at p. 212 (“As
originally conceived, within the codification process relating to the law of treaties, the concept of jus
cogens applies only to treaty relationships … to invalidate bilateral and multilateral agreements
contrary to fundamental community rules recognized as ‘higher law’”). See also Kleinlein (footnote
764 above), at p. 181; K. Kawasaki, “A brief note on the legal effects of jus cogens in international
law”, Hitotsubashi Journal of Law and Politics, vol. 34 (2006), p. 27; and den Heijer and van der
Wilt (footnote 714 above), at p. 7.
817 Costelloe (see footnote 694 above), at p. 55 (“the relevant [provisions of the 1969 Vienna
Convention] are very narrow, and the question whether they still have much relevance … and are now
virtually a dead letter, is justified”). See Charlesworth and Chinkin (footnote 701 above), pp. 65–66
(“Despite fears that the inclusion of [article 53 of the Vienna Convention] would subvert the principle
of pacta sunt servanda and act to destabilize the certainty provided by treaty commitments, jus
cogens doctrine has been only rarely invoked in this context. It thus has had little practical impact
upon the operation of treaties”); and Kadelbach (footnote 700 above), p. 161 (“direct conflict in the
sense that a treaty has an illicit subject-matter is a theoretical case”). See also Cassese (footnote 701
above), pp. 159–160 (“Should we conclude that consequently what is normally asserted to be a major
advance accomplished by the 1969 Vienna Convention ... has in fact proved over the years to be an
outright flop?”). See, for examples, Shelton, “Sherlock Holmes and the mystery of jus cogens”
(footnote 714 above), at p. 36; and Kadelbach (footnote 700 above), p. 152. See, for discussion,
Knuchel (ibid.), at p. 141.
818 For general statements to this effect, see the statement by the Netherlands during the eighteenth
session of the Sixth Committee, Agenda Item 69, Report of the International Law Commission, para.
2 (on the question of jus cogens, the “Agreement concerning the Sudeten German Territory, signed at
Munich on 29 September 1938, was one of the few examples of treaties which had come to be
regarded as contrary to international public order”). Cyprus, at the same meeting and in order to show
the practice in support of nullity as a consequence of conflict with peremptory norms of general
international law (jus cogens), listed a number of treaties as providing for nullity on account of
conflict with peremptory norm, namely the prohibition on the use of force (“The Covenant of the
League of Nations, the General Treaty for the Renunciation of War as an Instrument of National
Policy (known as the Briand Kellogg Pact); the Charter of the Nürnberg Tribunal; the Charter of the
International Military Tribunal for the trial of the major war criminals in the Far East and, most
recently, Article 2, paragraph 4, of the Charter of the United Nations made it lex lata in modern
international law that a treaty procured by the illegal threat or use of force was void ab initio”). See
also Israel during the eighteenth session of the Sixth Committee, Agenda Item 69, Report of the
International Law Commission, para. 8. For more specific statements see East Timor (Portugal v.
Australia), Counter-Memorial of the Government of Australia of 1 June 1992, para. 223, declaring
that the “Timor Gap Treaty” (the Treaty on the zone of cooperation in an area between the Indonesian
province of East Timor and Northern Australia, signed over the zone of cooperation on 11 December
1989, United Nations, Treaty Series, vol. 1654, No. 28462, p. 105), if in conflict with the right of self-
determination, would be invalid on account of being in breach of a norm of jus cogens; the
memorandum of the Legal Adviser of the State Department, Roberts B. Owen, to the Acting
Secretary of State, 29 December 1979, in U.S. Digest, chapter 2, section 1, para. 4, reproduced in
M.L. Nash, “Contemporary practice of the United States relating to international law”, American
Journal of International Law, vol. 74, No. 2 (April 1980), p. 418, at p. 419 (“Nor is it clear that the
treaty between the USSR and Afghanistan … is valid. If it actually does lend itself to support of
Soviet intervention of the type in question in Afghanistan, it would be void under contemporary
principles of international law, since it would conflict with what the Vienna Convention on the Law
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resolutions819 which some have interpreted as recognizing that the validity of certain
agreements is to be determined by reference to their consistency with certain fundamental
principles. There have also been judicial decisions that have considered the invalidity of
treaties on account of possible inconsistency with peremptory norms of general
international law (jus cogens). In Prosecutor v. Taylor, the Special Court for Sierra Leone
had to determine whether the provision in its own Statute which removed immunities of
officials was invalid.820 The Court held that since the provision was “not in conflict with
any peremptory norm of general international law, [it] must be given effect” to by the
Court.821 It seems to follow that had the provision been in conflict it would not have been
given effect to by the Court. Similarly, in the Aloeboetoe, et al. v. Suriname case before the
Inter-American Court of Human Rights, reliance had been placed on an agreement
concluded between the Netherlands and the Saramaka community for the purposes of
reparation.822 The Court noted that, under some provisions of the treaty, the Saramaka
undertook to capture any escaped slaves and return them to slavery. 823 On that account, the
Court held that if the agreement in question were a treaty, it would be “null and void
because it contradicts the norms of jus cogens superveniens”.824
(3) Draft conclusion 10 follows the approach of the 1969 Vienna Convention by
distinguishing between, on the one hand, treaties that, at the time of their conclusion, are in
conflict with a peremptory norm of general international law (jus cogens) (paragraph 1) and,
on the other hand, treaties that conflict with a peremptory norm of general international law
that emerges subsequent to the conclusion of the treaty (paragraph 2). 825 The first
alternative is addressed in the first sentence of article 53 of the 1969 Vienna Convention
while the second alternative is addressed in article 64 of that Convention. Both paragraphs
follow closely the text of the 1969 Vienna Convention.
(4) The first sentence of the first paragraph of draft conclusion 10 states simply that
treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. The sentence follows closely the first sentence of article 53. The import
of this sentence is that such a treaty is void ab initio. The second sentence of the first
paragraph of draft conclusion 10 is taken from the first paragraph of article 69 of the 1969
Vienna Convention and provides that the provisions of a treaty that is invalid on account of
being in conflict with a peremptory norm at the time of its conclusion have no legal force.
of Treaties describes as a ‘peremptory norm of general international law’ … , namely that contained
in Article 2, paragraph 4 of the Charter” of the United Nations).
819 General Assembly resolution 33/28A of 7 December 1978; General Assembly resolution 34/65 B of
29 November 1979; General Assembly resolutions 36/51 of 24 November 1981; and General
Assembly resolution 39/42 of 5 December 1984.
820 Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision of 31 May 2004 on Immunity from
Jurisdiction, Appeals Chamber, Special Court for Sierra Leone, para. 53. See also Prosecutor v.
Kallon, Case No. SCSL-2004-15-AR72(E), Decision of 13 March 2004 on Constitutionality and Lack
of Jurisdiction, Appeals Chamber, Special Court for Sierra Leone.
821 Prosecutor v. Taylor (see footnote above), para. 53.
822 Aloeboetoe and Others v. Suriname, Judgment of 10 September 1993 on Reparation and Costs, Inter-
American Court of Human Rights, Series C, No. 15.
823 Ibid., at para. 57.
824 Ibid.
825 See paragraph (6) of the commentary to article 50 of the draft articles on the law of treaties, Yearbook
... 1966, vol. II, p. 248 (draft article 50 “has to be read in conjunction with article 61 (Emergence of a
new rule of jus cogens), and in the view of the Commission, there is no question of the present article
having retroactive effects. It concerns cases where a treaty is void at the time of its conclusion by
reason of the fact that its provisions are in conflict with an already existing rule of jus cogens. The
treaty is wholly void because its actual conclusion conflicts with a peremptory norm of general
international law … . Article 61, on the other hand, concerns cases where a treaty, valid when
concluded, becomes void and terminates by reason of the subsequent development establishment of a
new rule of jus cogens with which its provisions are in conflict. The words ‘becomes void and
terminates’ make it quite clear, the Commission considered that the emergence of a new rule of jus
cogens is not to have retroactive effects on the validity of a treaty. The invalidity is to attach only
from the time of the establishment of the new rule of jus cogens”) (emphasis in original).
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(5) The second paragraph of draft conclusion 10 concerns the consequences of a newly
emerged peremptory norm of general international law on an existing treaty. It states that
such a treaty becomes void and terminates. The phrase “becomes void and terminates”
indicates that the treaty is not void ab initio but only becomes void at the emergence of the
peremptory norm. The treaty becomes void from the moment the norm in question is
recognized and accepted as one from which no derogation is permitted. The consequence of
the treaty becoming void is that it is only the continuing legal or subsequent legal effects of
the provisions of the treaty that terminate. It is for this reason that the second sentence of
the second paragraph provides that the parties to such a treaty are released from any
obligation further to perform the treaty. This formulation is drawn from article 71,
paragraph 2 (a), of the 1969 Vienna Convention. The effect of the text is to recognize that
the treaty provisions were valid and could produce legal consequences prior to the
emergence of the peremptory norm of general international law (jus cogens). Subject to
draft conclusion 12, it is only the obligation to “further” perform that is affected by any
termination. Prior to the acceptance and recognition, the rights and obligations under the
impugned treaty are fully valid and applicable.
(6) Draft conclusion 10 on the invalidity of treaties on account of conflict with
peremptory norms should be read together with draft conclusion 21 on procedural
requirements for invoking invalidity. In accordance with draft conclusion 21, a party to a
treaty cannot unilaterally declare that a treaty is, in its view, contrary to a peremptory norm
and excuse itself from the duty to perform under the treaty. The procedure set out in draft
conclusion 21 is to be followed to confirm, objectively, the invalidity of the treaty before
any consequences of invalidity can be relied upon.
Conclusion 11
Separability of treaty provisions conflicting with a peremptory norm of general
1. A treaty which, at the time of its conclusion, conflicts with a peremptory
norm of general international law (jus cogens) is void in whole, and no separation of
the provisions of the treaty is permitted.
2. A treaty which becomes void because of the emergence of a new peremptory
norm of general international law (jus cogens) terminates in whole, unless:
(a) the provisions that are in conflict with a peremptory norm of general
international law (jus cogens) are separable from the remainder of the treaty with
regard to their application;
(b) it appears from the treaty or is otherwise established that acceptance
of the said provisions was not an essential basis of the consent of any party to be
bound by the treaty as a whole; and
(c) continued performance of the remainder of the treaty would not be
unjust.
Commentary
(1) Draft conclusion 11 addresses circumstances where only some provisions of a treaty
are in conflict with a peremptory norm of general international law (jus cogens) while other
provisions are not in conflict with such a norm. As with draft conclusion 10 concerning
invalidity of treaties, the draft conclusion follows the general approach in the 1969 Vienna
Convention, namely to distinguish between, on the one hand, treaties which, at the time of
their conclusion conflict with a peremptory norm of general international law (jus cogens)
and, on the other hand, treaties which conflict with a peremptory norm of general
international law (jus cogens) that emerges subsequent to the conclusion of the treaty. The
draft conclusion also follows closely the text contained in the relevant provisions of the
1969 Vienna Convention.
(2) The first paragraph of draft conclusion 11 concerns those cases where the treaty, at
the time of its conclusion, is in conflict with a peremptory norm of general international law
(jus cogens). Under the 1969 Vienna Convention, in such cases, the treaty becomes void in
whole. Article 53 of the Convention provides that the “treaty is void” and not that the
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relevant provision of the treaty concerned is void. Moreover, article 44, paragraph 5, of the
1969 Vienna Convention makes it express that, in such cases, severance of the impugned
provisions from the treaty is not permitted. The whole treaty is void ab initio. Draft
conclusion 11 thus makes it clear that the whole treaty is void and that there is no
possibility of separating those provisions that are in conflict with peremptory norms from
other provisions of the treaty. First, the phrase “void in whole” in the draft conclusion is
meant to clarify that the whole treaty and not only the offending provision is void. Second,
to emphasize this basic point, the second part of the sentence explicitly states that “no
separation of the provisions of the treaty is permitted”. The first part of the sentence follows
the text of article 53 of the 1969 Vienna Convention, while the second part of the sentence
is based on paragraph 5 of article 44 of the Convention, which excludes cases of invalidity
under article 53 from the rules on separability in article 44. The view was expressed that
there may be cases in which it would nevertheless be justified to separate different
provisions of a treaty.
(3) The second paragraph addresses circumstances where a treaty (or particular
provisions of a treaty) conflict with a peremptory norm which emerges subsequent to the
conclusion of the treaty. The formulation of the second paragraph follows closely that in
paragraph 3 of article 44 of the 1969 Vienna Convention. It recognizes the possibility of
separation in cases where a treaty becomes invalid due to the emergence of a peremptory
norm of general international law subsequent to the conclusion of the treaty.
(4) The chapeau of the second paragraph makes plain that, as a general rule, a treaty
becomes void as a whole if it conflicts with a peremptory norm of general international law
(jus cogens), even in cases where the peremptory norm emerges subsequent to the
conclusion of the treaty. For that reason, the first part of the chapeau of the second
paragraph of draft conclusion 11 provides that a treaty which becomes void because of the
emergence of a new peremptory norm of general international law (jus cogens) terminates
in whole. The word “unless”, at the end of the chapeau, signifies that it is only in those
limited instances which are covered by subparagraphs (a) to (c) where separation may take
place. The elements listed in subparagraphs (a) to (c) are cumulative in nature. In other
words, all three elements must be present in order for provisions that conflict with a
peremptory norm to be separated from the rest of the treaty.
(5) The elements listed in the second paragraph of draft conclusion 11 are taken from
article 44, paragraph 3, of the 1969 Vienna Convention. The first element, as stipulated in
subparagraph (a), is that the provisions which are in conflict with a peremptory norm of
general international law (jus cogens) must be separable from the remainder of the treaty
with regard to their application. This means that it must be possible to apply the rest of the
treaty without the provisions which are in conflict with a peremptory norm of general
international law (jus cogens). Where the other provisions serve the function of facilitating
the implementation of the impugned provision, such a provision can obviously not be
separated from the rest of the treaty with regard to its application.
(6) It is not enough that it is possible to apply the treaty without the impugned provision.
Subparagraph (b) of the second paragraph of draft conclusion 11 states that it must appear
from the treaty or be otherwise established that the acceptance of the said provisions was
not an essential basis of the consent of any party to be bound by the treaty as a whole. Even
if a treaty could be applied without the impugned provision, it would be contrary to the
consensual nature of treaties for a treaty to be applied without a provision that was “an
essential basis” for its conclusion, since without that provision there would have been no
consent to the treaty.
(7) Pursuant to subparagraph (c), the last condition that has to be met for severance of a
provision that conflicts with a peremptory norm of general international law (jus cogens)
that emerges subsequent to the conclusion of a treaty is that the continued performance
under the treaty would not be unjust. The word “unjust”, in this context, is meant to refer to
the essential balance of rights and obligations created by the treaty which could be
disturbed only if some provisions were separated while others were retained. Furthermore,
to decide whether continued performance of the treaty would be “unjust”, consideration
needs to be given not only to the impact on the parties of the treaty, but also impacts
beyond parties, if relevant and necessary. Whether the conditions set out in the second
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paragraph are present is to be established by a consideration of all the relevant

circumstances, including the subject of the provision, its relation to other clauses of the
treaty and the travaux preparatoires amongst other factors.826
Conclusion 12
Consequences of the invalidity and termination of treaties conflicting with a
1. Parties to a treaty which is void as a result of being in conflict with a
peremptory norm of general international law (jus cogens) at the time of the treaty’s
conclusion have a legal obligation to:
(a) eliminate as far as possible the consequences of any act performed in
reliance on any provision of the treaty which conflicts with a peremptory norm of
general international law (jus cogens); and
(b) bring their mutual relations into conformity with the peremptory norm
2. The termination of a treaty on account of the emergence of a new peremptory
norm of general international law (jus cogens) does not affect any right, obligation
or legal situation created through the execution of the treaty prior to the termination
of the treaty, provided that those rights, obligations or situations may thereafter be
maintained only to the extent that their maintenance is not in itself in conflict with
the new peremptory norm of general international law (jus cogens).
Commentary
(1) One of the consequences of a conflict with a peremptory norm of general
international law (jus cogens) is that the treaty is void or, in the case of the emergence of
the peremptory norm subsequent to the adoption of the treaty, the treaty becomes void. Yet
a treaty, even a void one, may lead to consequences through, for example, parties acting
pursuant to the treaty. Those consequences may manifest themselves through the creation
of rights and obligations or by the establishment of factual situations. Draft conclusion 12
addresses the consequences of the invalidation of treaties as a result of a conflict with a
peremptory norm of general international law (jus cogens). There is therefore a close
relationship between draft conclusion 10 and draft conclusion 12. Draft conclusion 12
addresses the consequences of a treaty that has been rendered void.
(2) As is the case for draft conclusions 10 and 11, draft conclusion 12 is structured on
the basis of the distinction between articles 53 and 64 of the 1969 Vienna Convention:
those cases of invalidity as a result of a conflict with an existing peremptory norm of
general international law (jus cogens) and those cases of invalidity on account of conflict
with a peremptory norm of general international law that emerges subsequent to the
adoption of the treaty. Furthermore, as with draft conclusions 10 and 11, draft conclusion
12 follows closely the text of the 1969 Vienna Convention. Finally, as is the case with draft
conclusion 10, the consequences for the invalidity of a treaty are subject to the procedural
requirements set out in draft conclusion 21.
(3) The first paragraph of draft conclusion 12 addresses cases where a treaty is void as a
result of a conflict with a peremptory norm of general international law (jus cogens) at the
time of the treaty’s conclusion. The formulation of the paragraph follows closely the
formulation of article 71, paragraph 1, of the 1969 Vienna Convention concerning “a treaty
which is void under article 53”. Since in that case no treaty comes into being – which is the
essence of void ab initio – no reliance can be placed on the provisions of the treaty.
However, acts may have been performed in good faith in reliance on the void treaty
producing particular consequences. To address these consequences, the first paragraph of
draft conclusion 12 refers to two obligations.
826 See paragraph (5) of the commentary to article 41 of the draft articles on the law of treaties, Yearbook
… 1966, vol. (II), p. 238.
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(4) The first obligation of the parties to the void treaty is to eliminate as far as possible
the consequences of any act performed in reliance on any provision of the treaty in conflict
with a peremptory norm of general international law (jus cogens). First, it will be noted that
the obligation is to eliminate “as far as possible”. The obligation is thus not one of result
but one of conduct. It recognizes that it may not be possible to eliminate the relevant
consequences but requires States to make best efforts to eliminate any such consequences.
Second, the duty is not to eliminate the consequences of any acts performed in reliance of
any part of the treaty, but only the consequences of those acts which have been performed
in reliance on the impugned provisions of the treaty. Thus, while the whole treaty is void,
there is no obligation to eliminate consequences of acts performed in reliance of provisions
of the treaty that are not in conflict with peremptory norms of general international law (jus
cogens). The second obligation, which flows from the first, is that the parties are to bring
their mutual relations into conformity with the peremptory norm of general international
law (jus cogens). This means that, moving forward, the parties to the treaty should ensure
that their relations are consistent with the peremptory norm in question. Thus, while the
first obligation is concerned with past conduct, the second is concerned with future conduct.
(5) The second paragraph concerns the situation addressed by article 64 of the 1969
Vienna Convention, namely those cases in which a treaty becomes void as a result of a
peremptory norm that emerges subsequent to the adoption of the treaty. The formulation in
the second paragraph of draft conclusion 12 follows closely the text of article 71, paragraph
2, of the 1969 Vienna Convention. It must be reiterated that, in such cases, the treaty only
becomes invalid after the emergence of the peremptory norm of general international law
(jus cogens). In other words, during the period between the adoption of the treaty and the
emergence of the peremptory norm, the treaty remains valid and consequently acts
performed and rights and obligations created pursuant to it, remain valid. There can
therefore be no obligation to eliminate consequences of acts validly performed. The draft
conclusion states that the termination of a treaty due to conflict with a peremptory norm
that emerges subsequent to the adoption of the treaty does not affect any right, obligation or
legal situation created through the execution of the treaty prior to the termination of the
treaty. Thus, while the treaty becomes void, rights, obligations or legal situations created
through the lawful performance under the treaty will not be affected. However, those rights,
obligations or legal situations may be maintained or relied upon only to the extent that their
continued existence is not itself a violation of a peremptory norm of general international
law (jus cogens).
Conclusion 13
Absence of effect of reservations to treaties on peremptory norms of general
1. A reservation to a treaty provision that reflects a peremptory norm of general
international law (jus cogens) does not affect the binding nature of that norm, which
shall continue to apply as such.
2. A reservation cannot exclude or modify the legal effect of a treaty in a
manner contrary to a peremptory norm of general international law (jus cogens).
Commentary
(1) Draft conclusion 13 concerns the effects of peremptory norms of general
international law (jus cogens) on the rules of international law relating to reservations to
treaties. The purpose of the draft conclusion is not to regulate reservations, which are dealt
with in articles 19 to 23 of the 1969 Vienna Convention. The draft conclusion proceeds
from the effects of reservations as provided for in the Convention.
(2) The first paragraph addresses the case where a reservation is entered to a treaty
provision that reflects a peremptory norm of general international law (jus cogens). The
formulation of the first paragraph of draft conclusion 13 is based on the Commission’s
Guide to Practice on Reservations to Treaties.827 It states that a reservation to a provision in
827 Guide to Practice on Reservations to Treaties, Official Records of the General Assembly, Sixty-sixth
Session, Supplement No. 10 (A/66/10/Add.1), guideline 4.4.3.
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a treaty that reflects a peremptory norm does not affect the binding nature of that norm
which shall continue to apply as such. The phrase “as such” is intended to indicate that
even when reflected in a treaty provision, a peremptory norm of general international law
(jus cogens) retains its validity independent of the treaty provision. This means that while
the reservation may well affect the treaty rule and the application of the treaty rule, the
norm, as a peremptory norm of general international law (jus cogens), will not be affected
and will continue to apply. The rule reflected in this paragraph of draft conclusion 13 flows
from the normal operation of international law. It derives, in particular, from the fact that
the treaty provision over which a reservation has been formulated, and the peremptory
norm of general international law (jus cogens) in question, have a separate existence.828
(3) The rule in the first paragraph of draft conclusion 13 does not relate to the validity of
the reservation. Whether the reservation is valid or not, and the consequences of any
invalidity, are matters that are governed by the rules contained in the 1969 Vienna
Convention. It would be going too far to prohibit a reservation to a provision in a treaty
which reflects a peremptory norm of general international law (jus cogens) outright since
such a determination should always be dependent upon ascertaining the object and purpose
of the treaty in question – an exercise that can only be done through the interpretation of
each particular treaty. It is nonetheless important to emphasize that, whatever the validity of
the reservation in question, a State cannot escape the binding nature of a peremptory norm
of general international law (jus cogens) by formulating a reservation to a treaty provision
reflecting that norm.
(4) The second paragraph of draft conclusion 13 concerns reservations which, on their
face, are neutral and do not relate to peremptory norms, but whose application would be
contrary to a peremptory norm of general international law (jus cogens). Such reservations
are invalid. Drawing on paragraph 2 of guideline 4.4.3 of the Guide to Practice on
Reservations to Treaties, draft conclusion 13 states that a reservation cannot exclude or
modify the legal effect of a treaty in a manner contrary to a peremptory norm of general
international law (jus cogens). The typical example identified in the commentary to
guideline 4.4.3 is a reservation “intended to exclude a category of persons from benefitting
from certain rights granted under a treaty”.829 The right to education, though very important,
is not, at this time, a peremptory norm of general international law (jus cogens). Thus, the
formulation of a reservation to a treaty provision proclaiming a right to education would
not, as such, be contrary to a peremptory norm of general international law (jus cogens) nor
would it constitute a reservation to a treaty provision reflecting a peremptory norm of
general international law (jus cogens). However, a reservation that limits the
implementation of such right to a particular racial group or excludes a particular racial
group from the enjoyment of the treaty right, may well be found to violate the generally
recognized peremptory norm of general international law prohibiting racial
discrimination.830
Conclusion 14
Rules of customary international law conflicting with a peremptory norm of
general international law (jus cogens)
1. A rule of customary international law does not come into existence if it
conflicts with a peremptory norm of general international law (jus cogens). This is
without prejudice to the possible modification of a peremptory norm of general
international law (jus cogens) by a subsequent norm of general international law
having the same character.
828 Military and Paramilitary Activities in and against Nicaragua (see footnote 741 above), at pp. 93–94,
para. 175 (addressing this issue in the context of a reservation to a declaration recognizing as
compulsory the jurisdiction of the Court under Article 36, paragraph 2, of its Statute).
829 Guide to Practice on Reservations to Treaties (see footnote 827 above), para. (5) of the commentary
to guideline 4.4.3.
830 See, for example, paragraph (5) of the commentary to article 26 of the articles on the responsibility of
States for internationally wrongful acts, Yearbook ... 2001, vol. II (Part Two) and corrigendum, p. 85.
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2. A rule of customary international law not of a peremptory character ceases to

exist if and to the extent that it conflicts with a new peremptory norm of general
3. The persistent objector rule does not apply to peremptory norms of general
Commentary
(1) Draft conclusion 14 addresses the consequences of peremptory norms of general
international law (jus cogens) for customary international law. Draft conclusion 14 is
divided into three paragraphs. The first paragraph concerns the consequences that an
existing peremptory norm of general international law (jus cogens) has on the formation of
a new rule of customary international law. The second paragraph concerns the
consequences that a new peremptory norm of general international law (jus cogens) has on
existing rules of customary international law. The third paragraph addresses the non-
applicability of the persistent objector rule. The first two paragraphs mirror draft conclusion
10, which distinguishes between the situation of a treaty at the time of its conclusion
conflicting with an existing peremptory norm of general international law (jus cogens), on
the one hand, and that of a treaty conflicting with a peremptory norm of general
international law (jus cogens) that emerges subsequent to the conclusion of a treaty.
(2) The first sentence of the first paragraph of draft conclusion 14 provides that a rule of
customary international law does not come into existence if it conflicts with a peremptory
norm of general international law (jus cogens). The words “does not come into existence”
are meant to indicate that, even if constituent elements of customary international law are
present, a rule of customary international law does not come into existence if the putative
rule conflicts with a peremptory norm of general international law (jus cogens). Unlike in
the case of treaties, the terms “invalid” or “void” are not appropriate since the putative rule
of customary international law does not come into existence in the first place.
(3) Peremptory norms of general international law (jus cogens) are hierarchically
superior to other norms of international law and therefore override such norms in the case
of conflict. Decisions of national courts have recognized that peremptory norms of general
international law (jus cogens) prevail over conflicting rules of customary international law.
In Siderman de Blake v. Republic of Argentina, the United States Court of Appeals for the
Ninth Circuit considered that “[i]indeed … the supremacy of jus cogens extends over all
rules of international law” and noted that “norms that have attained the status of jus cogens
‘prevail over and invalidate international agreements and other rules of international law in
conflict with them’”.831 The Supreme Court of Argentina has similarly stated that crimes
against humanity had the “character of jus cogens, meaning that [the prohibition is] above
both treaty law, and all other sources of international law”.832
(4) The position that peremptory norms of general international law (jus cogens) prevail
over conflicting rules of customary international law has also been recognized in decisions
of international courts and tribunals. In the Jurisdictional Immunities of the State case, the
International Court of Justice noted the proposition of Italy that “jus cogens rules always
prevail over any inconsistent rule of international law, whether contained in a treaty or in
customary international law”.833 The Court did not reject that proposition, but declined to
find that there was a conflict between the rule on State immunities in civil proceedings and
peremptory norms of general international law (jus cogens).834 The hierarchical superiority
831 Siderman de Blake v. Republic of Argentina (see footnote 708 above), p. 715 (citing to the
Restatement (Third) of the Foreign Relations Law of the United States (1987), § 102 comment k).
832 Julio Héctor Simón y otros s/ privación ilegítima de la libertad (see footnote 724 above), para. 48
(original: “el carácter de ius cogens de modo que se encuentra no sólo por encima de los tratados sino
incluso por sobre todas las fuentes del derecho”).
833 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
834 Ibid., paras. 92–93. See in this respect, Ulf Linderfalk, Understanding Jus Cogens in International
Law and International Legal Discourse (forthcoming, 2019), at section 1.3.1 (examples include the
priority-rule implicitly confirmed by the International Court of Justice in the Jurisdictional
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of peremptory norms of general international law (jus cogens) over customary international
law was also recognized in Al-Adsani v. the United Kingdom, in which the European Court
of Human Rights determined, having considered Prosecutor v. Furundžija, that peremptory
norms of general international law (jus cogens) are those norms that enjoy “a higher rank in
the international hierarchy than treaty law and even ‘ordinary’ customary rules”. 835 The
consequences of peremptory norms of general international law (jus cogens) on the
existence of a conflicting rule of customary international law is aptly captured in the joint
dissenting opinion of Judges Rozakis and Caflisch in the Al-Adsani v. the United Kingdom
case:
By accepting that the rule on prohibition of torture is a rule of jus cogens, the
majority recognise that it is hierarchically higher than any other rule of international
law …. For the basic characteristic of a jus cogens rule is that … it overrides any
other rule which does not have the same status. In the event of a conflict between a
jus cogens rule and any other rule of international law, the former prevails.836
(5) The rule in the first sentence of the first paragraph of draft conclusion 14, which
states that a rule of customary international law does not come into existence if it conflicts
with a peremptory norm of general international law (jus cogens), follows from the fact that
peremptory norms of general international law (jus cogens) prevail over conflicting rules of
customary international law. Thus, the High Court of Kenya, in The Kenya Section of the
International Commission of Jurists v. the Attorney-General and Others, stated that
peremptory norms of general international law (jus cogens) “rendered void any other pre-
emptory rules which come into conflict with them”.837
(6) The second sentence of the first paragraph of draft conclusion 14 provides that the
general principle captured in the first sentence is without prejudice to the possible
modification of a peremptory norm of general international law (jus cogens) by a
subsequent norm of general international law having the same character. This is based on
the recognition that, as provided for in draft conclusion 5, customary international law is
the most common basis for peremptory norms of general international law (jus cogens) and
that, therefore, modification of a peremptory norm of general international law (jus cogens)
is likely to occur through the subsequent acceptance and recognition of a rule of customary
international law as a peremptory norm of general international law (jus cogens) or the
emergence of a new rule of customary international law so accepted and recognized.
However, to be able to modify a peremptory norm of general international law (jus cogens),
the rule of customary international law in question must have the same character as the
peremptory norm of general international law (jus cogens) being modified. The phrase
“having the same character”, which is taken from article 53 of the 1969 Vienna Convention
indicates that such a rule of customary international law must itself be recognized and
accepted as one from which no derogation is permitted and which can only be modified by
a subsequent peremptory norm of general international law (jus cogens). That a rule of
customary international law could only derogate from, and thus modify, a peremptory norm
of general international law (jus cogens) if such a rule of customary international law also
had a peremptory character is supported by a judgment of the Queen’s Bench Division of
the England and Wales High Court of Justice in R (Mohamed) v. Secretary of State for
Foreign and Commonwealth Affairs, which, having referred to the hierarchical superiority
of peremptory norms of general international law (jus cogens), stated that their “derogation
Immunities of the State case: in the event of a conflict between a jus cogens norm and a rule of
customary international law, States must act upon the former).
835 Al-Adsani v. the United Kingdom (see footnote 706 above), para. 60. See also Prosecutor v.
Furundžija (footnote 699 above), para. 153.
836 Joint dissenting opinion of Judges Rozakis and Caflisch (joined by Judges Wildhaber, Costa, Cabral
Barreto and Vajić) in Al-Adsani v. the United Kingdom (see footnote 706 above), para. 1. See also T.
Kleinlein (footnote 764 above), p. 187 (“it is a relatively straightforward case to perceive a structural
hierarchy between jus cogens and regional or local customary rules”).
837 The Kenya Section of the International Commission of Jurists v. the Attorney-General and Others
(see footnote 748 above). See also C v. Director of Immigration, HCAL 132/2006, [2008] 2 HKC
165, [2008] HKCFI 109, ILDC 1119 (HK 2008), 18 February 2008, para. 75.
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by States through treaties or rules of customary law not possessing the same status [was]
not permitted”.838
(7) The second paragraph of draft conclusion 14 concerns cases in which a rule of
customary international law, which at the time of its formation did not conflict with
existing peremptory norms of general international law (jus cogens), conflicts with a
peremptory norm of general international law (jus cogens) that emerges subsequent to the
formation of the rule of customary international law. It provides that such a rule of
customary international law “ceases to exist if and to the extent that it conflicts with a new
peremptory norm of general international law (jus cogens)”. The phrase “ceases to exist”
indicates that prior to the emergence of the new peremptory norm of general international
law (jus cogens), the rule of customary international law was in force but that it ceases to
exist upon the emergence of the peremptory norm of general international law (jus cogens).
The phrase “if and to the extent” is meant to indicate that only those parts of the rule of
customary international law in question that conflict with the peremptory norm of general
international law (jus cogens) will cease to exist. This phrase operates like a separability
provision, in order to maintain those parts of the rule of customary international law that are
consistent with the peremptory norm of general international law (jus cogens). The qualifier
“if and to the extent” does not apply to the first paragraph of draft conclusion 14 since, in
the case of a pre-existing peremptory norm of general international law (jus cogens), the
rule of customary international law in question does not come into existence at all.
(8) The third paragraph of draft conclusion 14 deals with the persistent objector rule. It
provides that the persistent objector rule does not apply to peremptory norms of general
international law (jus cogens). Draft conclusion 15 of the Commission’s draft conclusions
on identification of customary international law states that a rule of customary international
law is not opposable to a State that has persistently objected to that rule of customary
international law while it was in the process of formation for as long as that State maintains
its objection. Draft conclusion 15 of the draft conclusions on identification of customary
international law also stated, however, that this rule was without prejudice to any question
concerning peremptory norms of general international law (jus cogens).839
(9) The rule that persistent objection does not apply to peremptory norms of general
international law (jus cogens) flows from both the universal application and hierarchical
superiority of peremptory norms of general international law as reflected in draft
conclusion 3.840 This means that peremptory norms of general international law (jus cogens)
apply to all States. In this respect, the Federal Supreme Court of Switzerland, in Youssef
Nada v. State Secretariat for Economic Affairs and Federal Department of Economic
Affairs, stated that jus cogens norms “were binding on all subjects of international law”.841
The Inter-American Court of Human Rights has concluded that peremptory norms of
general international law (jus cogens) “bind all States”.842 The rule that, by virtue of their
universal application and hierarchical superiority, peremptory norms of general
838 R (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs, [2008] EWHC 2048
(Admin), [2009] 1 WLR 2579, para. 142 (ii). See also A. Caro de Beer and D. Tladi, “The use of
force against Syria in response to alleged use of chemical weapons by Syria: a return to humanitarian
intervention?”, Heidelberg Journal of International Law, vol. 79, No. 2 (2019), p. 217, in which the
authors noted that if the prohibition on the use of force were regarded as a peremptory norm of
general international law (jus cogens), a subsequent rule of customary international law could only
emerge if it were “‘accepted and recognized’ as having a peremptory character, in a way that would
modify the” pre-existing peremptory norm of general international law (jus cogens).
839 Draft conclusion 15 of the draft conclusions on identification of customary international law, report of
the International Law Commission on the work of its seventieth session, Official Records of the
General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10), p. 121.
840 On the universal application of these norms, see, for example, the written statement of 19 June 1995
by the Government of Mexico on the request for an advisory opinion submitted to the International
Court of Justice by the General Assembly at its forty-ninth session (resolution 49/75K), para. 7 (“The
norms … are of a legally binding nature for all the States (jus cogens)”).
841 Youssef Nada v. State Secretariat for Economic Affairs and Federal Department of Economic Affairs
(see footnote 698 above), para. 7 (emphasis added).
842 Juridical Condition and Rights of Undocumented Migrants (see footnote 731 above), p. 113, paras. 4–
5.
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international law (jus cogens) cannot be subject to the persistent objector rule has been
reflected in statements by States. 843 Specifically in response to an argument about the
persistent objector rule, the Inter-American Commission on Human Rights, in Michael
Domingues v. United States, determined that peremptory norms of general international law
(jus cogens) “bind the international community as a whole, irrespective of protest,
recognition or acquiescence”.844
(10) A question that arises in scholarly writings is whether a peremptory norm of general
international law (jus cogens) can ever emerge in the face of persistent objection of one or a
few States.845 It can because persistent objection to a rule of customary international law by
a few States does not prevent the rule’s emergence; rather, such objection merely renders
that rule not opposable to the State or States concerned for so long as the objection is
maintained. For that reason, the persistent objector rule does not prevent the emergence of a
peremptory norm of general international law (jus cogens) based on a rule of customary
international law to which one or more States have persistently objected. At the same time,
if a rule of customary international law, to which a State has persistently objected, becomes
accepted and recognized by the international community of States as a whole as one from
which no derogation is permitted and which can only be modified by a subsequent norm of
general international law having the same character, the effect of the persistent objection
falls away.
(11) Whether there is such acceptance and recognition of a rule of general international
law (jus cogens) may be affected by the objections. According to the second paragraph of
draft conclusion 7, the phrase “international community of States as a whole” does not
require the acceptance and recognition of all States but does require the acceptance and
recognition of a very large majority. Thus, if a rule of customary international law was the
object of persistent objections from several States, such objections might not be sufficient
843 See also the Islamic Republic of Iran, “the ‘persistent objector’ … had no place in the formation of
jus cogens” (A/C.6/68/SR.26, para. 4). See also statements by States in the 2016 and 2018 meetings
of the Sixth Committee (agenda item 78: report of the International Law Commission), particularly
the following: Brazil “welcomed the clarification in draft conclusion 15 [of the draft conclusions on
identification of customary international law] that the inclusion of the persistent objector rule was
without prejudice to any issues of jus cogens” (A/C.6/71/SR.22, para. 18); Chile stated that “[w]]here
the rules of jus cogens were concerned, the persistent objector institution did not apply”
(A/C.6/71/SR.21, para. 102); Cyprus “welcomed paragraph 3 [of draft conclusion 15 of the draft
conclusions on identification of customary international law] … [as] without prejudice to any
question concerning peremptory norms of general international law (jus cogens)” (A/C.6/73/SR.23,
para. 43); El Salvador “agreed with the Special Rapporteur that the doctrine of the persistent objector
was not applicable to jus cogens norms” (A/C.6/71/SR.25, para. 63); Finland, on behalf of the Nordic
countries (Denmark, Finland, Iceland, Norway and Sweden), “welcomed the inclusion in the draft
conclusions [on identification of customary international law] of the persistent objector rule ….
Nonetheless, the category of rule to which the State objected should be taken into account and
particular consideration must be given to universal respect for fundamental rules, especially those
relating to the protection of individuals” (A/C.6/71/SR.20, para. 52); Greece “reiterated [the]
delegation’s doubts about the applicability of the persistent objector rule in relation not only to the
rules of jus cogens but also to the broader category of the general principles of international law”
(A/C.6/71/SR.22, para. 10); Iceland, speaking on behalf of the Nordic countries (Denmark, Finland,
Iceland, Norway and Sweden), stated that “the notion of persistent objector was not compatible with
the concept of jus cogens” (A/C.6/71/SR.24, para. 63); Mexico stated that “there could be no
persistent objection to jus cogens rules” (A/C.6/71/SR.22, para. 25); Slovenia “agreed with the
enunciation of jus cogens norms as being of a special and exceptional nature, reflecting the common
and overarching values adhered to by the international community. For that reason, [the] delegation
reaffirmed its view that the persistent objector was incompatible with the nature of jus cogens”
(A/C.6/71/SR.26, para. 114); South Africa “agreed with [the Special Rapporteur’s] preliminary
observation that there could be no objection to jus cogens norms” (A/C.6/71/SR.26, para. 86); and
Spain stated that “it was regrettable that it had not been specifically stated in draft conclusion 15 [of
the draft conclusions on identification of customary international law] that there could be no
persistent objection to peremptory norms of general international law” (A/C.6/73/SR.21, para. 91).
844 Michael Domingues v. United States (see footnote 706 above), para. 49.
845 C. Mik, “Jus cogens in contemporary international law”, Polish Yearbook of International Law, vol.
33, No. 27 (2013), p. 50. See also D. Costelloe (footnote 694 above), pp. 21–23.
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to preclude the emergence of a rule of customary international law but might be sufficient
to preclude the norm from being recognized as a peremptory norm of general international
law (jus cogens). In other words, to the extent that such persistent objection implies that the
norm in question is not accepted and recognized by the international community of States
as a whole as one from which no derogation is permitted, then a peremptory norm of
general international law (jus cogens) might not arise.
(12) A view was expressed that “persistent objection” to a rule of customary international
law should not be characterized as a “rule” but rather as a “doctrine”. The Commission,
however, decided to use the phrase “persistent objector rule” since this concept is often
referred to as a “rule” and since the Commission has already referred to it as either a “rule”
or a “doctrine” in its prior work.846
(13) The application of draft conclusion 14 is to be read together with the interpretative
rule set out in draft conclusion 20 and the procedural requirements set forth in draft
conclusion 21.
Conclusion 15
Obligations created by unilateral acts of States conflicting with a
1. A unilateral act of a State manifesting the intention to be bound by an
obligation under international law that would be in conflict with a peremptory norm
of general international law (jus cogens) does not create such an obligation.
2. An obligation under international law created by a unilateral act of a State
ceases to exist if and to the extent that it conflicts with a new peremptory norm of
Commentary
(1) Draft conclusion 15 addresses the legal consequences of peremptory norms of
general international law (jus cogens) for unilateral acts of States manifesting the intention
to be bound by an obligation under international law. 847 Draft conclusion 15 is based on the
understanding that unilateral acts may, under certain conditions described below, establish
obligations for the State performing the unilateral act. The first paragraph of draft
conclusion 15 addresses those cases in which the unilateral act, at the time of its
performance, is in conflict with a peremptory norm of general international law (jus
cogens). It provides that, in such cases, the unilateral act does not create any such
obligation. This consequence of peremptory norms of general international law (jus cogens)
mirrors those in the first sentence of draft conclusion 10 and the first paragraph of draft
conclusion 14 of the present draft conclusions, namely that no obligations come into
existence at all.
(2) The first paragraph of draft conclusion 15 is inspired by article 53 of the 1969
Vienna Convention.848 The Commission, in its guiding principles applicable to unilateral
declarations of States capable of creating legal obligations, formulated the rule in the
following terms: “A unilateral declaration which is in conflict with a peremptory norm of
general international law is void”.849 Although the guiding principles use the phrase “is void”
in the context of a declaration, the present draft conclusion uses broader phrases, “does not
846 For example, see the commentary to Part VI, as well as paragraph 4 of the commentary to conclusion
15 of the conclusions on identification of customary international law.
847 The scope of this draft conclusion is thus broader than the scope of the 2006 International Law
Commission guiding principles applicable to unilateral declarations of States capable of creating legal
obligations, which “relate only to unilateral acts stricto sensu, i.e. those taking the form of formal
declarations formulated by a State with the intent to produce obligations under international laws”
(preambular paragraph 5 of the guiding principles).
848 See the Guide to Practice on Reservations to Treaties (footnote 827 above), paragraph (18) of the
commentary to guideline 3.1.5.3, stating that it was true that “the rule prohibiting derogation from a
rule of jus cogens applies not only to treaty relations, but also to all legal acts, including unilateral
acts”.
849 Guiding principle 8, Yearbook … 2006, vol. II (Part Two), p. 165.
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create such an obligation” and “ceases to exist”, so as to capture more fully the broader
context of the draft conclusion, which is addressing unilateral acts in a broader sense. The
focus is therefore on the legal obligations intended to be created by the unilateral act in
question. As indicated in the first paragraph, such obligations are not created if they conflict
with a peremptory norm of general international law (jus cogens).
(3) The second paragraph concerns those cases in which a peremptory norm of general
international law (jus cogens) emerges subsequent to the creation of an obligation under
international law resulting from a unilateral act. The scope of this paragraph is different
from that of the first paragraph because the second paragraph refers to obligations that have
already been created by a unilateral act. The second paragraph provides that such an
obligation would cease to exist if, subsequent to its creation, it conflicted with a new
peremptory norm of general international law (jus cogens). The second paragraph of draft
conclusion 15 mirrors the second paragraph of draft conclusion 10 and the second
paragraph of draft conclusion 14. It recognizes that, in these circumstances, obligations do
come into existence but only cease to exist at the time of the emergence of a new
peremptory norm of general international law (jus cogens). The rule in the second
paragraph of draft conclusion 15 is inspired by article 64 of the 1969 Vienna Convention.
(4) The obligations arising from a unilateral act that conflict with a new peremptory
norm of general international law (jus cogens) emerging subsequent to the performance of
the unilateral act cease to exist only to the extent that such obligations are inconsistent with
the new peremptory norm of general international law (jus cogens). As in the second
paragraph of draft conclusion 14, the phrase “if and to the extent” is meant to indicate that
only those aspects of the obligation in question that conflict with the peremptory norm of
general international law (jus cogens) will cease to exist. Other aspects of the obligation
would continue to exist and apply, but only if it is possible to maintain them in the absence
of the aspects of the obligations that cease to exist.
(5) Draft conclusion 15 does not concern all unilateral acts, nor does it concern all acts
creating obligations. It is concerned with unilateral acts by a State undertaken with the
intention to create obligations only for the State itself. This draft conclusion does not
concern sources of obligations, such as treaties and customary international law, which are
addressed in previous draft conclusions. Similarly, it does not address reservations, which
are dealt with in draft conclusion 13. Moreover, draft conclusion 15 does not cover other
acts in conflict with peremptory norms of general international law (jus cogens), which are
addressed by other draft conclusions concerning responsibility for wrongful acts under
international law. For example, a unilateral act that is not intended to create obligations on
the State but that, nonetheless, constitutes a breach of a peremptory norm of general
international law (jus cogens) is subject to draft conclusions 17, 18, 19 and 22 of the
present draft conclusions. Draft conclusion 15 concerns only those unilateral acts by which
a State manifests the intention to unilaterally assume obligations and not other acts. 850
(6) The first paragraph of draft conclusion 15 describes the unilateral act under
consideration as one “manifesting the intention to be bound by an obligation under
international law”. The State performing the unilateral act must thus intend to establish
obligations under international law. This requires an ascertainment of the intention of the
State performing a unilateral act. In Frontier Dispute (Burkina Faso/Mali), the International
Court of Justice determined that whether a unilateral act could create obligations “all
depends on the intention of the State in question”.851 The words “manifesting the intention”
intend to convey that, although it is the subjective intention of the State that is sought, this
intention has to be determined from the overall facts and circumstances of each particular
850 Ibid., commentary to guiding principle 2.

851 Case Concerning Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986,
p. 554, at p. 573, para. 39. See also Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, p. 253, at p. 267, para. 43 (“When it is the intention of the State making the declaration that it
should become bound according to its terms, that intention confers on the declaration the character of
a legal undertaking, the State being thenceforth legally required to follow a course of conduct
consistent with the declaration”).
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case.852 The subjective intention is therefore to be sought by relying on objective facts. In

the words of the International Court of Justice, whether a unilateral act was intended to
create a legal obligation is to be “ascertained by interpretation of the act”.853 Likewise, the
second paragraph of draft conclusion 15 only applies to unilateral acts as described in
paragraph (5).
(7) Draft conclusion 15 applies to unilateral acts of States. Unilateral acts of
international organizations that create or are intended to create obligations for that
international organization are addressed in draft conclusion 16. The fact that draft
conclusion 15 applies to unilateral acts of States is without prejudice to the possible legal
consequences of peremptory norms of general international law (jus cogens) for unilateral
acts of non-State actors.
(8) The application of draft conclusion 15 is to be read together with the interpretative
rule set out in draft conclusion 20 and the procedural requirements set forth in draft
conclusion 21.
Conclusion 16
Obligations created by resolutions, decisions or other acts of international
organizations conflicting with a peremptory norm of general international law
(jus cogens)
A resolution, decision or other act of an international organization that would
otherwise have binding effect does not create obligations under international law if
and to the extent that they conflict with a peremptory norm of general international
law (jus cogens).
Commentary
(1) Draft conclusion 16 concerns the legal consequences of peremptory norms of
general international law (jus cogens) for resolutions, decisions and other acts of
international organizations.
(2) Draft conclusion 16 applies to resolutions, decisions or other acts of international
organizations whatever their designation. The phrase “resolution, decision or other act” of
an international organization is intended to convey the same meaning as the description of
“resolution” in paragraph (2) of the commentary to draft conclusion 12 of the draft
conclusions on identification of customary international law. 854 It also covers unilateral acts
of international organizations manifesting an intention to be bound. The words “that would
otherwise have binding effect” serve to limit the scope of the draft conclusion to resolutions,
decisions and acts of international organizations that would ordinarily have binding effect,
but for the conflict with the peremptory norm of general international law (jus cogens).
Examples of a resolution, decision or act of an international organization that would
otherwise have binding effect include a decision in a resolution of the Security Council,
taken under chapter VII of the Charter of the United Nations,855 or a decision of the General
Assembly admitting a State to become a member of the Organization. The question of
whether such a decision has binding effect (or is one that would otherwise have binding
effect) is to be determined by an interpretation of the relevant decision. 856 The European
852 Frontier Dispute (see footnote 851 above), para. 40.

853 Nuclear Tests (see footnote 851 above), para. 44.
854 See paragraph (2) of the commentary to draft conclusion 12 of the draft conclusions on identification
of customary international law. See report of the International Law Commission on the work of its
seventieth session, Official Records of the General Assembly, Seventy-third Session, Supplement No.
10 (A/73/10), p. 147.
855 By virtue of Article 25 of the Charter of the United Nations, which provides that the “Members of the
United Nations agree to accept and carry out the decisions of the Security Council”, the decisions of
the Security Council under Chapter VII of the Charter are binding.
856 Legal Consequences for States of the Continued Presence of South Africa in Namibia (see footnote
793 above), p. 53, para. 114 (“The language of a resolution of the Security Council should be
carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of
the powers under Article 25, the question whether they have been in fact exercised is to be determined
in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to
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Union also produces acts in the form of directives, regulations and decisions, which are
binding on Member States. Other international organizations, such as the International Civil
Aviation Organization, the African Union and the World Trade Organization may also
produce resolutions, decisions or other acts that, but for the rule set forth in this draft
conclusion, would have binding effect. Draft conclusion 16 is thus meant to be broad,
covering all resolutions, decisions and acts that would otherwise establish obligations under
international law.
(3) Following the language of draft conclusions 14 and 15, draft conclusion 16 states
that resolutions, decisions and other acts, as described in paragraph (2), do not create
obligations under international law if and to the extent that such obligations conflict with
peremptory norms of general international law (jus cogens). As in the second paragraph of
draft conclusion 14 and the second paragraph of draft conclusion 15, the words “if and to
the extent” are meant to indicate that only those obligations that conflict with a peremptory
norm of general international law (jus cogens) will be affected by the operation of the draft
conclusion. Other obligations not in conflict with peremptory norms of general
international law (jus cogens) will not be affected by the operation of draft conclusion 16.
Provisions in a resolution, decision or other act of an international organization that are not
in conflict with the peremptory norm of general international law (jus cogens) will continue
to apply if they are separable.
(4) The rule in draft conclusion 16, that a resolution, decision or act does not create
obligations under international law if those obligations conflict with a peremptory norm of
general international law (jus cogens), follows from the hierarchical superiority of
peremptory norms of general international law (jus cogens). If rules of international law
that are inconsistent with peremptory norms of general international law (jus cogens)
cannot be created through treaties, customary international law and unilateral acts, it
follows that such rules cannot be created through resolutions, decisions or other acts of
international organizations either. Resolutions, decisions or acts of the Security Council,
however, require additional consideration since, pursuant to Article 103 of the Charter of
the United Nations, obligations under the Charter prevail over other rules of international
law. 857 For this reason, considering the hierarchical superiority of peremptory norms of
general international law (jus cogens), the Commission considered it important to highlight
that draft conclusion 16 applies equally to binding resolutions, decisions and acts of the
Security Council.858
it, the Charter provisions invoked and, in general, all circumstances that might assist in determining
the legal consequences of the resolution of the Security Council”).
857 Article 103 of the Charter of the United Nations provides that “[i]n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the present Charter shall prevail”.
While this provision speaks only of international agreements, it has been interpreted as applying to
customary international law and certainly to resolutions, decisions and acts of other international
organizations. See, for discussion, the report of the Study Group on fragmentation of international
law: difficulties arising from the diversification and expansion of international law (finalized by
Martti Koskenniemi) (A/CN.4/L.682, Corr.1 and Add.1), paras. 344–345, especially at para. 345
(“Therefore it seems sound to join the prevailing opinion that Article 103 should be read extensively –
so as to affirm that [C]harter obligations prevail also over United Nations Member States’ customary
law obligations”).
858 For the statements by States, see for example, Switzerland, on behalf of Germany, Sweden and
Switzerland (“some courts have also expressed their willingness to ensure that Security Council
decisions comply with” peremptory norms of general international law (jus cogens), “from which
neither the Member States nor the United Nations may derogate” (S/PV.5446, p. 28); Qatar (while, by
virtue of Article 103 of the Charter, obligations flowing from Security Council resolutions supersede
other obligations, this did not apply to peremptory norms of general international law (jus cogens)
(S/PV.5779, p. 23). See also Argentina and Nigeria (S/PV.5474, p. 20; and S/PV.5474 (Resumption
1), p. 19, respectively); Finland, speaking on behalf of the Nordic countries (Denmark, Finland,
Iceland, Norway and Sweden), observed that there was a “widely held view that the powers of the
Security Council, albeit exceptionally wide, were limited by the peremptory norms of international
law” (A/C.6/60/SR.18, para. 18); and Iran (Islamic Republic of) (A/C.6/66/SR.7, para. 84). For other
views by States, see the United States (A/C.6/60/SR.20, para. 36), which cautioned that “general
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(5) The application of the rule in draft conclusion 16 has to be read together with the
interpretative rule set out in draft conclusion 20 and the procedural requirements laid down
in draft conclusion 21.
Conclusion 17
Peremptory norms of general international law (jus cogens) as obligations owed
to the international community as a whole (obligations erga omnes)
1. Peremptory norms of general international law (jus cogens) give rise to
obligations owed to the international community as a whole (obligations erga
omnes), in which all States have a legal interest.
2. Any State is entitled to invoke the responsibility of another State for a breach
of a peremptory norm of general international law (jus cogens), in accordance with
the rules on the responsibility of States for internationally wrongful acts.
Commentary
(1) Draft conclusion 17 addresses obligations erga omnes. It consists of two paragraphs.
The first paragraph states that the peremptory norms of general international law (jus
cogens) give rise to obligations owed to the international community as a whole
(obligations erga omnes). The relationship between peremptory norms of general
international law (jus cogens) and obligations erga omnes has been recognized in the
practice of States. The Democratic Republic of the Congo (formerly known as Zaire), for
example, in a statement in the Sixth Committee of the General Assembly, proposed a treaty
on the prohibition of the use of force and stated that the proposed treaty should have an
erga omnes effect in view of the fact that the prohibition of the use of force was a
peremptory norm of general international law (jus cogens).859 Similarly, the Czech Republic
stated that “jus cogens obligations were erga omnes obligations, which did not allow for
any derogation, including by means of an agreement”.860 The Federal Court of Australia, in
Nulyarimma and Others v. Thompson, also accepted the contention of the parties that “the
prohibition of genocide is a peremptory norm of customary international law (jus cogens)
giving rise to non derogable obligations erga omnes that is, enforcement obligations owed
by each nation State to the international community as a whole”.861 Similarly, in Kane v.
Winn, the United States District Court of Massachusetts determined that “the prohibition
pronouncements about the relationship” between peremptory norms of general international law (jus
cogens) and Security Council resolutions “should be avoided” and the United Kingdom of Great
Britain and Northern Ireland (A/C.6/73/SR.27, para. 73, citing to para. 5 of the annex to the written
statement) stated that there is no “State practice to support the contention that a State can refuse to
comply with a binding [Security Council] resolution based on an assertion of a breach of a jus cogens
norm” and the Russian Federation (A/C.6/73/SR.26, para. 131), which emphasized that discussions
on the issue of Security Council resolutions in connection with jus cogens norms “were not based on
any practice”, and that the draft conclusion could be misinterpreted in a way “which would undermine
the activities of the Security Council”. For the views of Courts see, e.g. R (On the Application of Al-
Jedda) v. Secretary of State for Defence, Appeal Judgment of 12 December 2007, House of Lords
[2008] 3 All ER 28 (Lord Bingham), para. 35; Youssef Nada v. State Secretariat for Economic Affairs
and Federal Department of Economic Affairs (see footnote 698 above), para. 7 (“Yet jus cogens, the
peremptory law binding on all subjects of international law, marks the limit of the obligation to apply
resolutions of the Security Council. For this reason, it must be determined whether, as the petitioner
asserts, the resolutions of the Security Council containing the sanctions violate jus cogens”) (original
in German, translation courtesy of Oxford Reports on International Law in Domestic Courts); Tadić,
Judgment, 15 July 1999 (footnote 152 above), para. 296; Yassin Abdullah Kadi v. Council of the
European Union and Commission of the European Communities (see footnote 719 above), para. 226
(on appeal, European Court did not address the matter).
859 Zaire (A/C.6/35/SR.32, para. 38). See also the statement of the Netherlands at the 25th meeting of the
Sixth Committee during the forty-ninth session of the General Assembly, in which it stated that “an
international crime would always involve a breach of a jus cogens or erga omnes obligation”
(A/C.6/49/SR.25, para. 38).
860 See also the Czech Republic (A/C.6/49/SR.26, para. 19) and Burkina Faso (A/C.6/54/SR.26).
861 Nulyarimma and Others v. Thompson, Appeal Decision of 1 September 1999, [1999] FCA 1192, 165
ALR 621, 96 FCR 153, ILDC 2773 (AU 1999), para. 81.
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against torture” is an obligation erga omnes that, “as [a] jus cogens norm[s] … [is] ‘non-
derogable and peremptory’”.862
(2) The International Court of Justice has not explicitly pronounced that a link exists
between peremptory norms of general international law (jus cogens) and obligations erga
omnes. Nevertheless, such a link could be deduced from some of its judgments and
advisory opinions. First, every norm described by the Court863 as one having an erga omnes
character is also one that has been included in the non-exhaustive list of norms previously
referred to by the Commission as having peremptory status. This list is reproduced in the
annex to the present draft conclusions. Second, the Court has applied the legal
consequences under article 41 of the articles on responsibility of States for internationally
wrongful acts (which concern breaches of peremptory norms) to breaches of such erga
omnes obligations.864 The Commission itself has been more explicit in recognizing a close
relationship between obligations erga omnes and peremptory norms of general international
law (jus cogens). 865 The relationship between peremptory norms and obligations erga
omnes has also been recognized in scholarly writings.866
862 Kane v. Winn, 31 F. Supp. 2d 162, 199 (D. Mass. 2004). See also R and Office of the United Nations
High Commissioner for Refugees v. Secretary of State for Foreign and Commonwealth Affairs and
Secretary of State for Home Affairs, Appeal Judgment of 12 October 2006 of the High Court, [2006]
ALL ER (D) 138, para. 102, referring to “ius cogens erga omnes”. See also Jorgic case, J (a Bosnian
Serb), Individual Complaint, Judgment of 12 December 2000 of the German Constitutional Court, 2
BvR 1290/99, ILDC 132 (DE 2000), para. 17.
863 See, for example, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius
in 1965, Advisory Opinion of 25 February 2019, para. 180 (viewing the right to self-determination as
having an erga omnes character). See also East Timor (Portugal v. Australia) (footnote 805 above), p.
102, para. 29, in which the Court described the statement that self-determination had an erga omnes
character as being “irreproachable”. In Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 3, at p.
47, para. 87, the Court affirmed “that the Genocide Convention contains obligations erga omnes” and
“that the prohibition of Genocide has the character of a peremptory norm (jus cogens)”. See Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory (footnote 805
above), paras. 88, 149 and 155; and Barcelona Traction, Light and Power Company, Limited
(footnote 805 above), p. 32, paras. 33–34, in which the Court determined “obligations [that] derive …
from the outlawing of acts of aggression, and of genocide … protection from slavery and racial
discrimination”. See also conclusion (33) of the conclusions of the Study Group on fragmentation of
international law (A/CN.4/L.702, p. 21). The conclusions also appear in Yearbook … 2006, vol. II
(Part Two), para. 251.
864 See draft articles on responsibility of States for internationally wrongful acts (Yearbook … 2001, vol.
II (Part Two) and corrigendum, para. 76, and the commentaries thereto, para. 77). The articles also
appear in General Assembly resolution 56/83 of 12 December 2001, annex, as modified by
A/56/49(Vol. I)/Corr.4. See, in particular, Legal Consequences of the Separation of the Chagos
Archipelago from Mauritius in 1965 (footnote 863 above), para. 180 and Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory (footnote 805 above), para. 159.
865 See Part Two, chapter III, of the articles on responsibility of States for internationally wrongful acts,
especially paragraph (4) of the general commentary to that chapter, in which “the recognition of the
concept of peremptory norms of international law” is said to be a development “closely related” to
obligations erga omnes, and paragraph (7) of the general commentary, in which the Commission
states that “there is at the very least substantial overlap between” obligations erga omnes and
866 See, for example, M. Cherif Bassiouni, “International crimes: jus cogens and obligatio erga omnes”,
Law and Contemporary Problems, vol. 59, No. 4 (1996), p. 63; I. Scobbie, “The invocation of
responsibility for the breach of ‘obligations under peremptory norms of general international law’”,
European Journal of International Law, vol. 13, No. 5 (2002), p. 1210 (“Following Barcelona
Traction, the Commission has taken the view that peremptory norms and obligations ‘owed to the
international community as a whole’ are essentially two sides of the one coin”); F. Forrest Martin,
“Delineating a hierarchical outline of international law sources and norms”, Saskatchewan Law
Review, vol. 65 (2002), p. 353; S. Villalpando, L’émergence de la communauté internationale dans de
la Responsabilité des États (Paris, Presses Universitaires de France, 2005), p. 106; C. Tomuschat,
“Reconceptualizing the debate …” (footnote 728 above), p. 430; A. Pellet, “Conclusions”, in
Tomuschat and Thouvenin (ibid.).
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(3) Although all peremptory norms of general international law (jus cogens) give rise to
obligations erga omnes, it is widely considered that not all obligations erga omnes arise
from peremptory norms of general international law (jus cogens).867 For example, certain
rules relating to common spaces, in particular common heritage regimes, may produce erga
omnes obligations independent of whether they have peremptory status.
(4) The first paragraph of draft conclusion 17 is intended to capture, in a general way,
the relationship described above between peremptory norms of general international law
(jus cogens) and obligations erga omnes. It states that peremptory norms of general
international law (jus cogens) “give rise to” obligations erga omnes. This wording is based
on the Commission’s articles on responsibility of States for internationally wrongful acts, in
which obligations erga omnes are described as those obligations which “arise under
peremptory norms of general international law”.868 The phrase “in which all States have a
legal interest” describes the main consequence of the erga omnes character of peremptory
norms of general international law (jus cogens).869 The words “legal interest” encompasses
the protection of the legal norm as such, including rights and obligations.
(5) The second paragraph of draft conclusion 17 builds on the first paragraph by
describing a distinct consequence of the connection between obligations erga omnes and
peremptory norms of general international law (jus cogens). It describes, in more precise
terms, the implications of the phrase “in which all States have a legal interest” in the first
paragraph. This consequence is that any State is entitled to invoke the responsibility of
another State for the latter’s breach of a peremptory norm of general international law (jus
cogens). The words used in the second paragraph of draft conclusion 17 follow the text of
article 48 of the Commission’s articles on responsibility of States for internationally
wrongful acts, which provides that “[a]ny State … is entitled to invoke the responsibility of
another State … if … the obligation breached is owed to the international community as a
whole”.870 Although draft conclusion 17 refers to “the responsibility of another State”, it is
without prejudice to the responsibility of international organizations. It will be recalled that,
under article 49 of the articles on the responsibility of international organizations, a State or
an international organization is entitled to invoke the responsibility of an international
organization for the breach by that international organization of an obligation owed to the
international community of States as a whole.
(6) According to the second paragraph of draft conclusion 17, the right of a State to
invoke the responsibility of another State for the latter’s breach of a peremptory norm of
general international law (jus cogens) is to be exercised in accordance with the rules on the
responsibility of States for internationally wrongful acts. This qualification is intended to
emphasize the distinction between the invocation of responsibility by an injured State and
the invocation of responsibility by any other State. Under the articles on responsibility of
States for internationally wrongful acts, the right of an injured State to invoke the
responsibility of another State for the breach of a peremptory norm of general international
law (jus cogens) is to be exercised according to article 42; whereas third States are entitled
to invoke the responsibility for such a breach under article 48. 871 When invoking the
responsibility of another State in its capacity as an injured State, the injured State is entitled
to claim all the forms of reparations provided for in chapter II of Part Two of the articles on
responsibility of States for internationally wrongful acts. However, a State other than an
injured State that invokes the responsibility of another State for the latter’s breach of a
peremptory norm of general international law (jus cogens) may only claim “cessation of the
internationally wrongful act, and assurances and guarantees of non-repetition”.872 A State
867 See, for example, Villalpando (footnote 866 above) and Forrest Martin (footnote 866 above).
868 Articles on responsibility of States for internationally wrongful acts, paragraph (7) of the general
commentary to Part Two, chapter III.
869 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (see
footnote 863 above), para. 180 (“all States have a legal interest in protecting that right”); Barcelona
Traction, Light and Power Company, Limited (see footnote 805 above), p. 32, para. 33 (“al1 States
can be held to have a legal interest in their protection)”.
870 Ibid., art. 48, para. 1 (b).
871 Ibid., paragraph (1) of the commentary to article 48.
872 Ibid., art. 48, para. 2 (a).
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other than an injured State, may only claim reparations “in the interest of the injured State
or of the beneficiaries of the obligation breached” and not for its own benefit.873
Conclusion 18
Peremptory norms of general international law (jus cogens) and circumstances
precluding wrongfulness
No circumstance precluding wrongfulness under the rules on the
responsibility of States for internationally wrongful acts may be invoked with regard
to any act of a State that is not in conformity with an obligation arising under a
Commentary
(1) Draft conclusion 18 addresses circumstances precluding wrongfulness in relation to
a breach of peremptory norms of general international law (jus cogens). As a general rule,
the existence of certain circumstances can serve to preclude the wrongfulness of an act of a
State that would otherwise be unlawful.874 Draft conclusion 18 sets out an exception to this
general rule on State responsibility by providing that where the breach in question concerns
a peremptory norm of general international law (jus cogens), the circumstances precluding
wrongfulness may not be invoked.
(2) Draft conclusion 18 is based on article 26 of the articles on responsibility of States
for internationally wrongful acts, which excludes the invocation of grounds precluding
wrongfulness as spelt in chapter V of Part One of the articles for any act that is not in
conformity with an obligation arising under a peremptory norm of general international law
(jus cogens). The effect of this rule is that, where the responsibility of a State for a breach
of a peremptory norm of general international law (jus cogens) is invoked, the State against
which the breach is invoked cannot seek to excuse itself from responsibility by raising any
circumstance that might ordinarily preclude wrongfulness. This applies even where the
circumstance precluding wrongfulness itself involves a peremptory norm of general
international law (jus cogens). As the Commission has previously stated, a genocide cannot
be invoked as a justification for the commission of a counter-genocide.875
(3) Draft conclusion 18 is without prejudice to the invocation of such circumstances by
international organizations and other entities. Article 26 of the articles on the responsibility
of international organizations also provides that the wrongfulness of an act of an
international organization not in conformity with a peremptory norm of general
international law (jus cogens) will not be precluded by the invocation of a circumstance
precluding the wrongfulness of that act.
Conclusion 19
Particular consequences of serious breaches of peremptory norms of general
1. States shall cooperate to bring to an end through lawful means any serious
breach by a State of an obligation arising under a peremptory norm of general
2. No State shall recognize as lawful a situation created by a serious breach by a
State of an obligation arising under a peremptory norm of general international law
(jus cogens), nor render aid or assistance in maintaining that situation.
3. A breach of an obligation arising under a peremptory norm of general
international law (jus cogens) is serious if it involves a gross or systematic failure by
the responsible State to fulfil that obligation.
873 Ibid., art. 48, para. 2 (b).

874 Ibid., see generally Part One, chapter V. Paragraph (1) of the general commentary to Part One,
chapter V, states that the existence of these grounds “provides a shield against an otherwise well-
founded claim for the breach of an international obligation”.
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4. This draft conclusion is without prejudice to the other consequences that a

serious breach by a State of an obligation arising under a peremptory norm of
general international law (jus cogens) may entail under international law.
Commentary
(1) Draft conclusion 19 concerns particular consequences of serious breaches of
obligations arising under peremptory norms of general international law (jus cogens). It is
based on article 41 of the articles on responsibility of States for internationally wrongful
acts. Draft conclusion 19 is concerned only with “additional consequences” arising from
serious breaches of peremptory norms of general international law (jus cogens).876 It does
not address consequences arising from breaches of rules of international law that are not of
a peremptory character nor does it address the consequences of breaches of peremptory
norms that are not serious in nature.
(2) The first particular consequence of serious breaches of obligations arising under
peremptory norms of general international law (jus cogens) is provided in the first
paragraph of draft conclusion 19. The first paragraph of draft conclusion 19, which is based
on article 41, paragraph 1, of the articles on responsibility of States for internationally
wrongful acts, provides that States shall cooperate to bring to an end serious breaches of
obligations arising under peremptory norms of general international law (jus cogens). The
obligation to “cooperate to bring to an end through lawful means” serious breaches of
peremptory norms of general international law (jus cogens) builds upon the general
obligation to cooperate under international law. 877 Although at the time of the adoption of
its articles on the law of treaties, the Commission expressed some doubt as to whether the
obligation expressed in paragraph 1 of article 41 constituted customary international law, 878
the obligation to cooperate to bring to an end serious breaches of obligations arising under
peremptory norms of general international law (jus cogens) is now recognized under
international law. The United Kingdom House of Lords in A, Amnesty International
(intervening) and Commonwealth Lawyers Association (intervening) v. Secretary of State
for the Home Department, for example, referred explicitly to the obligation under
international law “to cooperate to bring to an end through lawful means any serious breach
of an obligation under a peremptory norm of general international law”, and cited both
article 41 of the Commission’s articles on responsibility of States for internationally
wrongful acts and the Advisory Opinion of the International Court of Justice on Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory.879 The
Commission has recognized the obligation, albeit just in general terms in its draft articles
on the protection of persons in the event of disasters. 880 The International Court of Justice,
in its Advisory Opinion on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, has, since the adoption of the articles on responsibility of
States for internationally wrongful acts, determined that there is an obligation to cooperate
to bring to an end breaches of “obligations to respect the right … to self-determination, and
876 Ibid., paragraph (7) of the general commentary to Part Two, chapter III.
877 See, for example, the Declaration on Principles of International Law Concerning Friendly Relations
and Cooperation among States in accordance with the Charter of the United Nations, General
Assembly resolution 2625 (XXV) of 24 October 1970, annex, para. 1 (“States have the duty to
cooperate with one another, irrespective of the differences in their political, economic and social
systems, in the various spheres of international relations, in order to maintain international peace and
security and to promote international economic stability and progress, the general welfare of nations
and international cooperation free from discrimination based on such differences”).
878 See paragraph (3) of the commentary to article 41 of the articles on responsibility of States for
internationally wrongful acts.
879 A, Amnesty International (intervening) and Commonwealth Lawyers Association (intervening) v.
Secretary of State for the Home Department, Judgment of the House of Lords of 8 December 2005
[2006] 1 All ER 575, para. 34.
880 See draft articles on the protection of persons in the event of disasters, with commentaries (report of
the International Law Commission on the work of its sixty-eighth session, Official Records of the
General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10)), paragraph (1) of the
commentary to draft article 7 (“The duty to cooperate is well established as a principle of
international law and can be found in numerous international instruments”).
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certain … obligations under international humanitarian law”,881 norms that are widely cited
as peremptory. The Court determined that one of the obligations arising from the breaches
of such obligations was an obligation on other States “while respecting the United Nations
Charter and international law, to see to it that any impediment, resulting from” the breaches
are “brought to an end”.882 Similarly, in the Advisory Opinion on Legal Consequences of
the Separation of the Chagos Archipelago from Mauritius in 1965, the Court determined
that all States “must cooperate with the United Nations” to bring to an end the breach of
obligations arising from the right of self-determination. 883 Similarly, in the Case of La
Cantuta v. Peru, the Inter-American Court of Human Rights identified “the duty of
cooperation among States for” the purpose of eradicating breaches as itself a consequence
of breaches of obligations arising under peremptory norms of general international law (jus
cogens).884
(3) The obligation to cooperate to bring to an end serious breaches of obligations arising
under peremptory norms of general international law (jus cogens) is to be carried out
“through lawful means”. This means that the breach of a peremptory norm of general
international law (jus cogens) may not serve as a justification for the breach of other rules
of international law. Although international law does not prohibit unilateral measures to
bring to an end a serious breach of a peremptory norm of general international law (jus
cogens) if such unilateral measures are consistent with international law, the emphasis in
the first paragraph of draft conclusion 19 is on collective measures. This is the essence of
“cooperation”.885
(4) Depending on the type of breach and the type of peremptory norm in question, the
collective system of the United Nations is the preferred framework for cooperative action.
It is for this reason that, in the light of the determination by the International Court of
Justice of a breach of “self-determination” and “basic principles of humanitarian law”, the
Court stated that “the United Nations, and especially the General Assembly and the
Security Council, should consider what further action is required to bring to an end the
illegal situation”. 886 Similarly, in its advisory opinion on Legal Consequences of the
Separation of the Chagos Archipelago from Mauritius in 1965, the Court referred to the
obligation of “all Member States” to “cooperate with the United Nations” to end the breach
in question.887 Collective measures under other international organizations with a mandate
may also be taken to bring to an end serious breaches of peremptory norms of general
international law (jus cogens). Another example of an organization whose mandate permits
it to take measures to bring to an end breaches of peremptory norms of general international
law (jus cogens) is the African Union. 888 However, it is not only measures under
institutionalized cooperation mechanisms that may be adopted. The obligation to cooperate
to bring to an end serious breaches of peremptory norms of general international law (jus
cogens) may also be implemented through non-institutionalized cooperation, including
881 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (see footnote
882 Ibid., para. 159.
footnote 863 above), para. 182.
884 Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Inter-
American Court of Human Rights, para. 160 (“As pointed out repeatedly, the acts involved in the
instant case have violated peremptory norms of international law (jus cogens). … In view of the
nature and seriousness of the events … the need to eradicate impunity reveals itself to the
international community as a duty of cooperation among states”).
885 See, for example, paragraph (3) of the commentary to article 41 of the articles on responsibility of
States for internationally wrongful acts (“What is called for in the face of serious breaches is a joint
and coordinated effort by all States to counteract the effects of these breaches”).
footnote 863 above), para. 182.
888 See article 4 (h) of the Constitutive Act of the African Union (2000), which permits the African
Union to intervene to bring to an end breaches of the prohibition of genocide, crimes against
humanity and war crimes.
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through ad hoc arrangements by a group of States acting together to bring to an end a

breach of a peremptory norm.889 Indeed, the International Court of Justice, in its advisory
opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, seems to suggest that, over and above collective action, there is an obligation on
individual States to make efforts to bring situations created by the breach to an end.890 In
that opinion, in addition to referring to the measures that may be adopted by the General
Assembly and the Security Council, the Court stated that “[i]t is also for all States” to take
measures to end the breach of a peremptory norm of general international law (jus cogens).
The requirement, however, is that such measures should be consistent with international
law.891
(5) The obligation of States to act collectively to bring to an end serious breaches of
peremptory norms of general international law (jus cogens) has particular consequences for
cooperation within the organs of the United Nations and other international organizations.
It means that, in the face of serious breaches of peremptory norms of general international
law (jus cogens), international organizations should act, within their respective mandates
and when permitted to do so under international law, to bring to an end such breaches. Thus,
where an international organization has the discretion to act, the obligation to cooperate
imposes a duty on the members of that international organization to act with a view to the
organization exercising that discretion in a manner to bring to an end the breach of a
peremptory norm of general international law (jus cogens). A duty of international
organizations to exercise discretion in a manner that is intended to bring to an end serious
breaches of peremptory norms of general international law (jus cogens) is a necessary
corollary of the obligation to cooperate provided for in the first paragraph of draft
conclusion 19.
(6) The second paragraph of draft conclusion 19 states that States shall not “recognize
as lawful” a situation created by a breach of an obligation arising under a peremptory norm
of general international law (jus cogens) nor “render aid or assistance” in the maintenance
of such a situation. The second paragraph of draft conclusion 19, which is derived from
article 41, paragraph 2, of the articles on responsibility of States for internationally
wrongful acts, contains two separate obligations. The first is the obligation not to recognize
as lawful situations created by a serious breach of a peremptory norm of international law
(jus cogens). The second is the obligation not to render aid or assistance in maintaining the
situation created by the serious breach of a peremptory norm of international law (jus
cogens). While these two obligations are separate and distinct obligations, they are related
in the sense that the obligation of non-assistance is a logical consequence of the obligation
of non-recognition of a situation as lawful. Unlike the obligation in the first paragraph of
draft conclusion 19, the duties of non-recognition and non-assistance are negative duties. In
other words, while the first paragraph of draft conclusion 19 requires States to do
something, i.e. to cooperate to bring to an end serious breaches of peremptory norms of
general international law (jus cogens), the duties of non-recognition and non-assistance in
the second paragraph require States to refrain from acting. The duties in the second
paragraph of draft conclusion 19 are thus less onerous.
(7) Already in 2001, the Commission had recognized that the duties of non-recognition
and non-assistance were part of customary international law. 892 In Kuwait Airways
Corporation v. Iraqi Airways Company and Others, the United Kingdom House of Lords
refused to give legal validity to acts resulting from the Iraqi invasion of Kuwait – a breach
of the peremptory norm of general international law (jus cogens) relating to the use of
891 Ibid. (“It is also for all States, while respecting the United Nations Charter and international law, to
see to it that any impediment, resulting from construction of the wall, to the exercise by the
Palestinian people of its right to self-determination is brought to an end”) (emphasis added).
892 See paragraphs (6), (11) and (12) of the commentary to article 41 of the articles on responsibility of
States for internationally wrongful acts.
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force. 893 The obligation of non-recognition had been recognized in decisions of the
International Court of Justice and in the practice of States acting in international
organizations. In its advisory opinion on Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), for example, the Court recalled that “qualification of a situation as
illegal does not by itself put an end to” the situation.894 The Court held that there was an
obligation on third States “to recognize the illegality and invalidity of South Africa’s
continued presence”. 895 Similarly, in its advisory opinion on Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the Court determined that
“all States are under an obligation not to recognize the illegal situation resulting from” the
breach of an obligation widely recognized as having peremptory character. 896 The Security
Council has also recognized the obligation on States not to recognize the situation created
by a breach of the prohibition of apartheid and the obligation to respect self-
determination.897 The obligation of non-recognition of acts that are in breach of obligations
that arise under the peremptory norms of the right of self-determination and the prohibition
of apartheid can also be seen in the General Assembly resolution calling for non-
recognition of the Bantustans created by South Africa in the furtherance of apartheid in
violation of the right to self-determination.898 The obligation not to assist or render aid to
the maintenance of a situation created by a serious breach of an obligation arising under a
peremptory norm has also been recognized in the decisions of the International Court of
Justice and resolutions of the United Nations. 899
(8) While the obligation of non-recognition is settled, this duty is not to be implemented
to the detriment of the affected population and deprive it of any advantages derived from
international cooperation.900 In its Advisory Opinion on Legal Consequences for States of
the Continued Presence of South Africa in Namibia, the International Court of Justice
declared that the consequences of non-recognition should not negatively affect or
disadvantage the affected population and, consequently, that acts related to the civilian
population, such as registration of births, deaths and marriages, ought to be recognized
notwithstanding the breach.901
(9) The obligations in draft conclusion 19 apply only to serious breaches of peremptory
norms of general international law (jus cogens). A serious breach is defined in the third
paragraph of draft conclusion 19 as a breach that “involves a gross or systematic failure by
the responsible State to fulfil that obligation” in question. This definition is taken from
article 40, paragraph 2, of the articles on responsibility of States for internationally
wrongful acts.902 A view was expressed that the word “serious” should be omitted from the
893 Kuwait Airways Corporation v. Iraqi Airways Company and Others (Nos. 4 and 5) [2002] UKHL 19,
[2002] 2 AC 883, para. 29. See also A, Amnesty International (intervening) and Commonwealth
Lawyers Association (intervening) v. Secretary of State for the Home Department (footnote 879),
para. 34.
895 Ibid., para. 119.
897 See Security Council resolution 276 (1970) of 30 January 1970.
898 General Assembly resolution 3411 D (XXX) of 28 November 1975, para. 3.
899 See, for example, Legal Consequences for States of the Continued Presence of South Africa in
Namibia (footnote 793 above), para. 119, stating that States are under an obligation “to refrain from
lending any support or any form of assistance to South Africa with reference to its occupation of
Namibia”. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (footnote 805 above), para. 159; and General Assembly resolution 3411 D (XXX), para. 3.
901 Ibid.
902 A detailed elaboration of the elements of seriousness, i.e. gross or systematic violations, can be found
in paragraphs (7) and (8) of the commentary to article 40 of the articles on responsibility of States for
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text of draft conclusion 19, inter alia, since the duties of non-recognition and non-
assistance were not onerous.
(10) The fourth paragraph of draft conclusion 19 provides that the obligations in draft
conclusion 19 are without prejudice to other consequences that serious breaches may entail
under international law.903 Draft conclusion 19, for example, does not specifically address
the consequences of the breach for the responsible State. The International Court of Justice
has routinely declared an obligation of cessation on the responsible State. 904 Other examples
of consequences of breaches of obligations under international law that are not addressed
can be found in chapters I and II of Part Two of the articles on responsibility of States for
internationally wrongful acts.905 Although not addressed in the present draft conclusions,
these other consequences of responsibility continue to apply.
(11) As with draft conclusions 17 and 18, draft conclusion 19 is without prejudice to the
application of the duties in draft conclusion 19 to international organizations.906
Conclusion 20
Interpretation and application consistent with peremptory norms of general
Where it appears that there may be a conflict between a peremptory norm of
general international law (jus cogens) and another rule of international law, the latter
is, as far as possible, to be interpreted and applied so as to be consistent with the
former.
Commentary
(1) Draft conclusion 20 contains an interpretative rule applicable in the case of potential
conflicts between peremptory norms of general international law (jus cogens) and other
rules of international law. Draft conclusions 10, 14, 15 and 16 provide for the invalidity or
non-existence of rules of international law that conflict with peremptory norms of general
international law (jus cogens). Whether or not a rule of international law conflicts with a
peremptory norm of general international law (jus cogens) is a matter to be determined
though interpretation. The rule in draft conclusion 20 applies as part of the process of
interpretation under applicable rules on interpretation.
(2) Draft conclusion 20 is not to be applied in all cases concerning the interpretation of
a rule or the determination of its content. It is to be applied only in the limited instances
where “it appears that there may be a conflict” between a rule of international law not of a
peremptory character and a peremptory norm of general international law (jus cogens). In
such a case, the interpreter is directed to interpret the rule of international law that is not of
a peremptory character in such a way that it is consistent with the peremptory norm of
general international law (jus cogens). The words “as far as possible” in the draft
conclusion are intended to emphasize that, in the exercise of interpreting rules of
international law in a manner consistent with peremptory norms of general international
law (jus cogens), the bounds of interpretation may not be exceeded. In other words, the rule
in question may not be given a meaning or content that does not flow from the normal
application of the rules and methodology of interpretation in order to achieve consistency.
903 See generally paragraph (13) of the commentary to article 41 of the articles on responsibility of States
for internationally wrongful acts.
904 See, for example, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius
in 1965 (footnote 863 above), para. 178; Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (footnote 805 above), para. 149 et seq.; and Legal Consequences for
States of the Continued Presence of South Africa in Namibia (footnote 793 above), para. 118.
905 See generally, Part Two of the articles on responsibility of States for internationally wrongful acts.
The consequences include cessation and non-repetition (art. 30) and reparation (art. 31). Reparations
themselves may take different forms, including restitution (art. 35), compensation (art. 36),
satisfaction (art. 37) and interest (art. 38).
906 See, in respect of international organizations, articles 41 and 42 of the articles on the responsibility of
international organizations. The draft articles and the commentaries thereto appear in Yearbook …
2011, vol. II (Part Two), paras. 87–88. The articles themselves appear in the annex to General
Assembly resolution 66/100 of 9 December 2011.
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(3) Draft conclusion 20 uses the words “interpreted and applied”. The interpretation and
application of a rule are interrelated but separate concepts. The words “interpretation and
application” were also used in paragraph (3) of the commentary to article 26 of the articles
on responsibility of States for internationally wrongful acts, which addressed this
interpretative effect of peremptory norms of general international law (jus cogens). It
recognizes that, in some cases, what may be at issue is not the interpretation of the rule in
question but its application. This may be the case, for example, where a rule is, on its face,
consistent with the relevant peremptory norm of general international law (jus cogens), but
its application in a particular way, would be contrary to the relevant peremptory norm.
(4) In the context of treaty rules, the rule in draft conclusion 20 may be seen as an
application of article 31, paragraph 3 (c), of the 1969 Vienna Convention, which provides
that in the interpretation of treaties “[a]ny relevant rules of international law applicable in
the relations between the parties” “shall be taken into account”. Peremptory norms of
general international law (jus cogens) are rules of international law applicable in relations
primarily between States and international organizations and must therefore, where relevant,
be taken into account in the interpretation of treaties. 907
(5) Although the interpretative rule in draft conclusion 20 constitutes a concrete
application of article 31, paragraph 3 (c), of the 1969 Vienna Convention, it does not apply
only in relation to treaties but to the interpretation and application of all other rules of
international law. In this respect, the Commission has stated that “when there is an apparent
conflict between primary obligations, one of which arises for a State directly under a
peremptory norm of general international law, it is evident that such an obligation must
prevail … peremptory norms of general international law generate strong interpretative
principles which will resolve all or most apparent conflicts”.908
(6) As noted in paragraph (2) of this commentary, the words “as far as possible” are
meant to indicate that the rule in this draft conclusion does not permit the limits of
interpretation to be exceeded. Where it is not possible to arrive at an interpretation of the
rule not of a peremptory character that is consistent with the peremptory norm of general
international law (jus cogens), the rule that is not of a peremptory character is to be
invalidated in accordance with draft conclusions 10, 14, 15 and 16.
(7) The phrase “another rule of international law” in draft conclusion 20 is to be
understood as referring to obligations under international law, whether arising under a
treaty, customary international law, a general principle of law, a unilateral act or a
resolution, decision or other act of an international organization. Draft conclusion 20
therefore applies in the interpretation of the rules or obligations identified in draft
conclusions 10, 14, 15 and 16.
Conclusion 21
Procedural requirements
1. A State which invokes a peremptory norm of general international law (jus
cogens) as a ground for the invalidity or termination of a rule of international law is
to notify other States concerned of its claim. The notification is to be in writing and
907 See, for example, the Report of the Study Group on fragmentation of international law (footnote 857
above), para. 414. This was done for example in Council of the European Union v. Front populaire
pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario), Case C-104/16 P,
Judgment of 21 December 2016, Court of Justice of the European Union (Grand Chamber), Official
Journal of the European Union, C 53/19 (20 February 2017), para. 88 et seq., especially para. 114, in
which the Court, having determined that the principle of self-determination was “one of the essential
principles of international law” and one establishing erga omnes obligations (para. 88), proceeded to
interpret a treaty between the European Commission and Morocco in such a way as to respect this
rule (“It follows that the Liberalisation Agreement could not be understood at the time of its
conclusion as meaning that its territorial scope included the territory of Western Sahara” (para. 114)).
internationally wrongful acts. See conclusion 42 of the work of the Study Group on the Fragmentation
of International Law: Difficulties arising from the Diversification and Expansion of International Law
(Yearbook … 2006, vol. II, Part Two, para. 251); see also Mik (footnote 845 above), p. 73 et seq.
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is to indicate the measure proposed to be taken with respect to the rule of

international law in question.
2. If none of the other States concerned raises an objection within a period
which, except in cases of special urgency, shall not be less than three months, the
invoking State may carry out the measure which it has proposed.
3. If any State concerned raises an objection, then the States concerned are to
seek a solution through the means indicated in Article 33 of the Charter of the
United Nations.
4. If no solution is reached within a period of twelve months, and the objecting
State or States concerned offer to submit the matter to the International Court of
Justice, the invoking State may not carry out the measure which it has proposed until
the dispute is resolved.
5. This draft conclusion is without prejudice to the procedural requirements set
forth in the Vienna Convention on the Law of Treaties, the relevant rules concerning
the jurisdiction of the International Court of Justice, or other applicable dispute
settlement provisions agreed by the States concerned.
Commentary
(1) Draft conclusion 21 concerns the procedure for the invocation of, and the reliance on,
the invalidity of rules of international law, including treaties, by reason of being in conflict
with peremptory norms of general international law (jus cogens). It is important to recall
that during the United Nations Conference on the Law of Treaties, States generally
supported the provisions relating to peremptory norms of general international law (jus
cogens) and concerns about articles 53 and 64 arose from the concern that the right to
invoke the invalidity of treaties could be abused by States unilaterally invoking articles 53
and 64 and thus threatening the stability of treaty relations. 909 To address the concern, the
1969 Vienna Convention subjects any reliance on articles 53 and 64 to a process involving
judicial settlement procedures.910 In the context of the present draft conclusions, invocation
of the rules set forth in Part Three without some type of mechanism to avoid unilateral
measures raises similar concerns as those raised at the United Nations Conference on the
Law of Treaties.
(2) The formulation of an appropriate provision for the purposes of the present draft
conclusions is, however, not without its difficulties. The principal difficulty is that detailed
dispute resolution provisions are embedded in treaties and do not operate as a matter of
customary international law. Thus, with respect to peremptory norms of general
international law (jus cogens), the 1969 Vienna Convention contains an elaborate dispute
settlement framework.911 Under this framework, a State party that claims that a treaty is
invalid on any ground, including for reason of being in conflict with a peremptory norm of
general international law, must notify other State parties of its claim. If, after the expiry of a
specified period, no objections to its notification are received, the consequences of
invalidity may be implemented. If, however, there is an objection, the 1969 Vienna
Convention requires that the State parties concerned seek a solution through the means
provided for in the Charter of the United Nations. These means include negotiation,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or other
909 Official Records of the United Nations Conference on the Law Treaties, First Session ... (see footnote
726 above), 4 May 1968, statements by: France, 54th meeting, para. 29 (“[t]he article as it stood gave
no indication how a rule of law could be recognized as having the character of jus cogens, on the
content of which divergent, even conflicting interpretations had been advanced during the discussion.
… Also, no provision had been made for any jurisdictional control over the application of such a new
and imprecise notion”); and Norway, 56th meeting, para. 37 (“[t]he article gave no guidance on some
important questions, namely, what were the existing rules of jus cogens and how did such rules come
into being? The Commission’s text stated the effects of those rules but did not define them, so that
serious disputes might arise between States; and it provided no effective means of settling such
disputes”).
910 Ibid.
911 See the 1969 Vienna Convention, arts. 65 and 66.
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peaceful means.912 If the claim of invalidity is based on a conflict with a peremptory norm
under article 53 or article 64 and a solution to the conflict is not found using such means,
then any party to the dispute may refer the matter to the International Court of Justice
unless there is an agreement to submit it instead to arbitration.
(3) In the Gabčíkovo-Nagymaros Project case, the International Court of Justice stated
that “both Parties agree that Articles 65 to 67 of the Vienna Convention on the Law of
Treaties, if not codifying customary international law, at least generally reflect customary
international law and contain certain procedural principles which are based on an obligation
to act in good faith”.913 This observation by the Court refers primarily to the consultation
process leading up to any termination of the agreement. The Court did not, by this
statement, determine that there was a customary international law rule concerning the
establishment of jurisdiction of the Court for the settlement of disputes relating to
invalidation of treaties on the basis of the peremptory norms of general international law
(jus cogens). The provisions of articles 65 to 67 of the 1969 Vienna Convention, in
particular the provisions pertaining to the submission to the International Court of Justice of
a dispute, cannot be said to reflect customary international law. As treaty provisions, they
cannot be imposed on States that are not party to the 1969 Vienna Convention. Moreover,
even amongst States that are party to the Convention, a number have formulated
reservations to the application of the dispute settlement mechanism, particularly as it relates
to the submission of disputes to the International Court of Justice and arbitration (article 66
(a) of the 1969 Vienna Convention).914
(4) In formulating a provision for dispute settlement in relation to the invalidation of
rules of international law on account of inconsistency with peremptory norms of general
international law (jus cogens), the Commission had to ensure, on the one hand, that it did
not purport to impose treaty rules on States that are not bound by such rules while, on the
other hand, ensuring that the concerns regarding the need to avoid unilateral invalidation of
rules was taken account of. Draft conclusion 21 sets out procedural requirements designed
to achieve such a balance. Not every aspect of the detailed procedure set forth in draft
conclusion 21 constitutes customary international law.
(5) The first three paragraphs of draft conclusion 21 follow article 65 of the 1969
Vienna Convention. The first paragraph requires that a State which seeks to impugn a rule
of international law for being in conflict with a peremptory norm of general international
law (jus cogens) is to notify other States of its claim. Although this paragraph follows
closely the wording of the 1969 Vienna Convention, the paragraph refers to “a rule of
international law”, to signify that the procedural requirements apply to treaties and other
international obligations deriving from other sources of international law. Consequently,
the paragraph refers to “States concerned” to indicate that the potential addressees of the
notification are broader than parties to a treaty. The first paragraph of draft conclusion 21
also provides that the notification is to indicate the measures proposed to remedy the
conflict. Such measures may be those referred to in draft conclusions 10 to 13 of the draft
conclusions. The requirement to specify the measures proposed is in keeping with the
purposes of the notification which is to enable other States to respond appropriately, if
necessary. The notification can be distributed to other States through a variety of means,
including through the Secretary-General of the United Nations.
912 See the Charter of the United Nations, Article 33, paragraph 1.
913 Gabčíkovo-Nagymaros Project (see footnote 741 above), at p. 66, para. 109.
914 As of April 2019, out of a total 116 States Parties, 23 States have made reservations to the dispute
settlement framework. Of these, 15 States sought to exclude the application of article 66 (a)
concerning the submission of disputes to the International Court of Justice in relation to claims of
invalidity on the grounds of conflict with peremptory norms (Algeria, Armenia, Belarus, Brazil,
China, Cuba, the Czech Republic, Guatemala, Hungary, the Russian Federation, Saudi Arabia,
Slovakia, Tunisia, Ukraine and Viet Nam); and four States have declared that the provisions of article
53 and 64 will not apply in relations between them and those States that have reserved on the
application of the dispute settlement framework (Belgium, Denmark, Finland and Portugal). A further
four States have declared that the provisions of article 66 do not serve to limit the jurisdiction of the
International Court of Justice if it exists under any other instrument (Canada, Germany, New Zealand
and the United Kingdom).
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(6) Paragraph 2 of draft conclusion 21 states that if no other State raises an objection to
the notification, then the State making the claim may carry out the measure it has proposed.
The right to carry out these measures, however, can only be exercised after “a period which,
except in cases of special urgency, shall not be less than three months”. This means, in the
first place, that the notification referred to in paragraph 1 should specify a period within
which an objection must be made to the notification. The period should be a reasonable
period and the Commission determined that, as a general rule, a minimum of three months
was a reasonable period. Second, it is only after the expiry of the said period, and if there
has been no objection, that the State invoking the invalidity of a treaty can carry out the
measure proposed. There may be cases where a three-month period may be too long. For
this purpose, paragraph 2 of draft conclusion 21 sets out the possibility of a shorter period
“in cases of special urgency”. The draft conclusions do not define “cases of special
urgency”. This is to be determined on the basis of the facts in each particular case. However,
it can be said that “cases of special urgency” will be those in which time is of the essence.
A view was expressed that there is no basis for the position that customary international
law contains such a three-month waiting period (or the twelve-month waiting period in
paragraph 4 of the draft conclusion).
(7) Paragraph 3 of draft conclusion 21 addresses those cases in which any State
concerned raises an objection against a claim that a rule of international law is void as a
result of a conflict with a peremptory norm of general international law (jus cogens). If
there is such an objection, then the invoking State cannot unilaterally implement the
proposed measures. In such a case the States concerned as well as the invoking State are
then required to seek a solution through the means indicated in Article 33 of the Charter of
the United Nations of their own choice.
(8) Paragraph 4 of draft conclusion 21 provides that if no solution is reached within a
period of twelve months, and the objecting State or States concerned offer to submit the
matter to the International Court of Justice, the invoking State may not carry out the
measure which it has proposed until the dispute is resolved. Paragraph 4 addresses those
cases in which the States concerned are not able to find a solution through the means
indicated in Article 33 of the Charter of the United Nations. The Commission proceeded
from the basis that the invocation of the invalidity of a rule of international law as a result
of inconsistency with a peremptory norm of general international law did not, as such,
constitute the basis for the jurisdiction of the International Court of Justice. 915 However, in
the spirit of avoiding unilateralism, the Commission found it appropriate, without obliging
submission of the International Court of Justice, to encourage submission of the dispute to
the International Court of Justice.
(9) Draft conclusion 21 is a procedural provision, without implication for the lawfulness
of any measures that may be carried out. If after the expiration of the twelve-month period
no offer to submit the matter to the International Court of Justice is made by the other
States concerned, the invoking State is no longer precluded by the procedural provisions of
draft conclusion 21 from taking the measure. It is important to emphasize that there is,
under this provision, no obligation to submit the matter to the International Court of Justice,
nor does this provision establish compulsory jurisdiction. Instead, the provision precludes
the State invoking invalidity from carrying out the proposed measures if the other
concerned States offer to submit the matter to the International Court of Justice. In the
event that such an offer to submit the matter to the International Court of Justice is made,
the State invoking invalidity will then only be entitled to carry out the proposed measures
after the dispute is resolved and in accordance with a determination by the Court that the
measures are justified under international law.
(10) Paragraph 5 is a without prejudice clause. As explained above, draft conclusion 21
does not establish the jurisdiction of the International Court of Justice, nor does it create an
915 Armed Activities on the Territory of the Congo (see footnote 699 above), at p. 32, para. 64 (“The same
applies to the relationship between peremptory norms of general international law (jus cogens) and
the establishment of the Court’s jurisdiction: the fact that a dispute relates to compliance with a norm
having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot
of itself provide a basis for the jurisdiction of the Court”).
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obligation on any State to submit a matter to the Court or to accept the Court’s jurisdiction.
By the same token, draft conclusion 21 does not affect any basis for jurisdiction that may
exist under any other rule in international law, including the dispute settlement mechanisms
under the 1969 Vienna Convention or other applicable dispute settlement provisions agreed
to by the States concerned (including the invoking State).
Part Four
General provisions
Conclusion 22
Without prejudice to consequences that specific peremptory norms of general
international law (jus cogens) may otherwise entail
The present draft conclusions are without prejudice to consequences that
specific peremptory norms of general international law (jus cogens) may otherwise
entail under international law.
Commentary
(1) Draft conclusion 22 is a without prejudice clause. It provides that the current draft
conclusions are without prejudice to the consequences that specific peremptory norms of
general international law (jus cogens) may otherwise entail under international law.
(2) The scope of the present draft conclusions concerns the identification and legal
consequences of peremptory norms of general international law (jus cogens). As described
in paragraph (3) of the commentary to draft conclusion 1, the present draft conclusions are
not intended to address the content of individual peremptory norms of general international
law (jus cogens). In addition to the methodology and process for identifying peremptory
norms of general international law (jus cogens), the draft conclusions also address, in
general, the legal consequences flowing from peremptory norms of general international
law (jus cogens). These include consequences for treaty rules, customary international law,
unilateral acts and binding resolutions, decisions or other acts of international organizations.
The contents of individual peremptory norms of general international law (jus cogens) may
themselves have legal consequences that are distinct from the general legal consequences
identified in the present draft conclusions. Hence, draft conclusion 22 is intended to convey
that the draft conclusions are without prejudice to any such legal consequences that may
otherwise arise from specific peremptory norms of general international law (jus cogens).
(3) The present draft conclusions do not deal with the consequences arising from a
conflict between peremptory norms of general international law (jus cogens).
(4) One area in which the issue of legal consequences for specific peremptory norms
has been raised concerns the consequences of crimes the commission of which are
prohibited by peremptory norms of general international law (jus cogens), such as the
prohibition of genocide, war crimes and crimes against humanity, in particular the possible
consequences for immunity and jurisdiction of national courts. These consequences are not
general consequences of peremptory norms of general international law (jus cogens), but
rather relate to specific peremptory norms of general international law. As such, they are
not addressed in the present draft conclusions.
Conclusion 23
Non-exhaustive list
Without prejudice to the existence or subsequent emergence of other
peremptory norms of general international law (jus cogens), a non-exhaustive list of
norms that the International Law Commission has previously referred to as having
that status is to be found in the annex to the present draft conclusions.
Commentary
(1) Draft conclusion 1 sets out the scope of the present draft conclusions as concerning
the identification and legal consequences of peremptory norms of general international law
(jus cogens). As indicated in paragraph (3) of the commentary to draft conclusion 1 and
paragraph (2) of the commentary to draft conclusion 22, the present draft conclusions are
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methodological in nature and do not attempt to address the content of individual

peremptory norms of general international law (jus cogens). As a result, the present draft
conclusions do not seek to elaborate a list of peremptory norms of general international law
(jus cogens). To elaborate a list of peremptory norms of general international law (jus
cogens), including a non-exhaustive list, would require a detailed and rigorous study of
many potential norms to determine, first, which of those potential norms meet the criteria
set out in Part II of the present draft conclusions and, second, which of the norms that meet
the criteria ought to be included in a non-exhaustive list. Such an exercise falls beyond the
scope of the exercise of elaborating draft conclusions on the identification and legal
(2) Although the identification of specific norms that have a peremptory character falls
beyond the scope of the present draft conclusions, the Commission has decided to include
in an annex a non-exhaustive list of norms previously referred to by the Commission as
having peremptory character. Draft conclusion 23 refers to this annex. It provides, first, that
this annex is without prejudice to the existence or subsequent emergence of other
peremptory norms of general international law (jus cogens). The phrase “without prejudice
to the existence or subsequent emergence of other peremptory norms of general
international law (jus cogens)” is meant to indicate that the inclusion of the list in the annex
in no way precludes the existence at present of other norms that may have peremptory
character or the emergence of other norms in the future having that character. Second, draft
conclusion 23 provides, as a statement of fact, that the norms contained in the annex are
those that have been previously referred to by the Commission as having peremptory status.
Finally, draft conclusion 23 states that the list contained in the annex is non-exhaustive,
which serves to reinforce the fact that this list is without prejudice to other norms having
the same character.916 It is non-exhaustive in two ways. It is non-exhaustive, first, in the
sense that beyond the norms identified in the list, there are or may be other peremptory
norms of general international law (jus cogens). Second, it is non-exhaustive in the sense
that, in addition to the norms listed in the annex, the Commission has also referred
previously to other norms as having peremptory character. The annex should therefore not
be seen as excluding the peremptory character of these other norms.
(3) The fact that the annex referred to in draft conclusion 23 contains norms previously
referred to by the Commission has two implications for the list. First, the formulation of
each norm is based on a formulation previously used by the Commission. The Commission
has therefore not attempted to reformulate the norms on the list. As will be seen in the
following paragraphs of the commentary to draft conclusion 23, in some cases the
Commission has used different formulations in its previous works. The second implication
is that there has been no attempt to define the scope, content or application of the norms
identified. The annex merely lists norms previously identified by the Commission, relying
on the same formulations and without seeking to address any aspects of the content of the
rules.
(4) In its previous works, the Commission has used different phrases to qualify the
norms to which it has referred. In its commentary to draft article 50 of the draft articles on
the law of treaties, it used the phrases “conspicuous example” and “example” respectively
when referring to two of the norms.917 In the commentary to draft article 26 of the draft
articles on responsibility of States for internationally wrongful acts, the Commission
916 See also paragraph (6) of the commentary to article 40 of the articles on responsibility of States for
internationally wrongful acts addressing the non-exhaustive nature of the norms referred to in those
articles (“It should be stressed that the examples given above may not be exhaustive. In addition,
article 64 of the 1969 Vienna Convention contemplates that new peremptory norms of general
international law may come into existence through the processes of acceptance and recognition by the
international community of States as a whole, as referred to in article 53. The examples given here are
thus without prejudice to existing or developing rules of international law which fulfil the criteria for
peremptory norms under article 53”).
917 See paragraphs (1) and (3) of the commentary to draft article 50 of the draft articles on the law of
treaties.
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referred to the norms on its list as those “clearly accepted and recognized”,918 while in the
commentary to article 40 of the same articles, it used the phrase “generally agreed” to
qualify the norm of “aggression” as peremptory, and said there “seems to be widespread
agreement” with regard to other norms listed in that paragraph. 919
(5) The first norm identified in the annex is the prohibition of aggression. The
prohibition of aggression was referred to by the Commission in the commentary to the
articles on responsibility of States for internationally wrongful acts. 920 In 1966, the
Commission stated that the “law of the Charter concerning the prohibition of the use of
force in itself constitutes a conspicuous example of a rule in international law having the
character of jus cogens”.921 Although not strictly the output of the Commission itself, the
2006 work of its Study Group on fragmentation of international law is also noteworthy.
Like the commentary to the articles on responsibility of States for internationally wrongful
acts, the conclusions of the Study Group on fragmentation of international law referred to
the prohibition of aggression as a peremptory norm. 922 The report of the Study Group on
fragmentation of international law, after referring to the Commission’s identification of the
prohibition of aggression, included “the prohibition of aggressive use of force” on its list of
the “most frequently cited candidates for the status of jus cogens”.923
(6) The second norm identified in the annex is the prohibition of genocide. The
prohibition of genocide has been referred to by the Commission with a consistent
formulation in all its relevant work. In particular, the draft articles on responsibility of
States for internationally wrongful acts, both in the commentary to draft article 26 and in
the commentary to draft article 40, referred to the prohibition of genocide. 924 Similarly, both
the conclusions and the report of the Study Group on fragmentation of international law
refer to the prohibition of genocide.925
(7) The prohibition of crimes against humanity is the third norm included in the annex.
The fourth paragraph of the preamble to the 2019 draft articles on crimes against humanity
recalled that “the prohibition of crimes against humanity is a peremptory norm of general
international law (jus cogens)”. 926 In the commentary to article 26 of the articles on
responsibility of States for internationally wrongful acts, the Commission referred not to
the prohibition of crimes against humanity separately, but to the prohibition of “crimes
against humanity and torture”. 927 The prohibition of crimes against humanity is also
referred to in the report of the Study Group on fragmentation of international law as one of
the “most frequently cited candidates” for norms with jus cogens status.928
(8) The basic rules of international humanitarian law, the fourth norm in the annex, has
been referred to by the Commission in its commentary to article 40 of its articles on
918 See paragraph (5) of the commentary to article 26 of the draft articles on responsibility of States for
920 Ibid. (“Among these prohibitions, it is generally agreed that the prohibition of aggression is to be
regarded as peremptory”). See also paragraph (5) of the commentary to article 26 (“Those peremptory
norms that are clearly accepted and recognized include the prohibitions of aggression”).
921 See paragraph (1) of the commentary to draft article 50 of the draft articles on the law of treaties,
Yearbook … 1966, vol. II, para. 38. In paragraph (3) of the same commentary, the Commission
referred to the “unlawful use of force contrary to the principles of the Charter”.
922 See conclusion (33) of the Conclusions of the Study Group on fragmentation of international law
923 Report of the Study Group on fragmentation of international law (see footnote 857 above), para. 374.
It should be noted that the report of the Study Group also refers, as a separate norm, to the right to
self-defence.
924 See paragraph (5) of the commentary to article 26 and paragraph (4) of the commentary to draft
article 40 of the articles on responsibility of States for internationally wrongful acts.
925 Conclusion (33) of the Conclusions of the Study Group on fragmentation of international law (see
footnote 863 above) and the report of the Study Group (see footnote 857 above), para. 374.
926 Preamble, draft articles on crimes against humanity, chapter IV of the present report.
927 See paragraph (5) of the commentary to draft article 26 of the articles on responsibility of States for
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responsibility of States for internationally wrongful acts. 929 The conclusions of the Study
Group on fragmentation of international law refer to basic rules of international
humanitarian law applicable in armed conflict. 930 The report of the Study Group on
fragmentation of international law, on the other hand, referred to “the prohibition of
hostilities directed at civilian population (‘basic rules of international humanitarian
law’)”.931
(9) The fifth norm in the annex is the prohibition of racial discrimination and apartheid.
The prohibition of racial discrimination and apartheid is referred to in the commentary to
article 40 of the articles on responsibility of States for internationally wrongful acts.932 The
commentary to article 26 of the articles on responsibility of States for internationally
wrongful acts, however, only refers to the prohibition of racial discrimination, without any
reference to apartheid.933 The report of the Study Group on fragmentation of international
law also refers to the prohibition of racial discrimination and apartheid.934 The conclusions
of the Study Group on fragmentation of international law, however, refer to the prohibition
of apartheid along with torture, without any reference to racial discrimination. 935
(10) The annex also includes the prohibition of slavery as the sixth norm on the list of
peremptory norms of general international law (jus cogens) previously referred to by the
Commission. The prohibition of slavery was referred to by the Commission as a
peremptory norm of general international law (jus cogens) in the commentary to draft
article 26 of the articles on responsibility of States for internationally wrongful acts.936 The
commentary to draft article 40 of the articles on responsibility of States for internationally
wrongful acts refers to the prohibition of slavery and the slave trade.937 The commentary to
the draft articles on the law of treaties, for its part, refers to the prohibition of the trade in
slaves.938
929 See paragraph (5) of the commentary to draft article 40 of the articles on responsibility of States for
930 See conclusion (33) of the Conclusions of the Study Group on fragmentation of international law
935 See conclusion (33) of the conclusions of the Study Group on fragmentation of international law
937 Ibid., paragraph (4) of the commentary to article 40. This is similarly the formulation used in the
report of the Study Group on fragmentation of international law (see footnote 857 above), para. 374.
938 See paragraph (3) of the commentary to draft article 50 of the draft articles on the law of treaties.
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(11) The prohibition of torture is the seventh norm in the annex. The prohibition of
torture is referred to by the Commission in the commentary to draft article 40 of the articles
on responsibility of States for internationally wrongful acts.939 In the commentary to draft
article 26 of the articles on responsibility of States for internationally wrongful acts, the
Commission referred to the prohibition of “crimes against humanity and torture”.940 The
conclusions of the Study Group on fragmentation of international law, on the other hand,
referred to the prohibition of “apartheid and torture”.941
(12) The final norm listed in the annex is the right of self-determination. In describing the
norm as having peremptory character, the Commission has used the formulation “the right
of self-determination”, although it has at times referred to the “right to self-
determination”.942
(13) As explained in paragraph (2), the list is non-exhaustive not only in the sense that it
does not purport to cover all peremptory norms of general international law (jus cogens)
that may exist or that may emerge in the future, but also in the sense that it does not reflect
all the norms that have been referred to in some way by the Commission as having a
peremptory character. This includes those norms that the Commission has considered in the
course of its deliberations. For example, in the commentary to draft article 50 of the draft
articles on the law of treaties, the Commission referred, inter alia, to the prohibition of
piracy and to the principle of the sovereign “equality of States” – a fundamental principle
under the Charter of the United Nations. 943 The Commission had also referred to the
important role of the Charter of the United Nations, especially those provisions of the
Charter which set out the purposes and principles of the United Nations for the
development of peremptory norms of general international law (jus cogens). In the draft
articles adopted on first reading in 1976 under the topic “State responsibility”, the
Commission also referred to obligations “of essential importance for the safeguarding and
preservation of the human environment, such as those prohibiting massive pollution of the
atmosphere or of the seas” as peremptory norms of general international law (jus cogens).944
(14) The norms in the annex are presented in no particular order. Their order does not, in
any way, signify a hierarchy among them.
internationally wrongful acts. The report of the Study Group on fragmentation of international law
(see footnote 857 above, para. 374) also referred to the prohibition of torture as an example of a
941 See conclusion (33) of the conclusions of the Study Group on fragmentation of international law
internationally wrongful acts, in which the Commission referred to the “the obligation to respect the
right of self-determination”. See also conclusion (33) of the conclusions of the Study Group on
fragmentation of international law (footnote 863 above) and the report of the Study Group on
fragmentation of international law (footnote 857 above), para. 374. In paragraph (3) of the
commentary to draft article 50 of the draft articles on the law of treaties, the Commission referred to
the “principle of self-determination”. In paragraph (5) of the commentary to article 26 of the articles
on responsibility of States for internationally wrongful acts, the Commission referred to the right to
self-determination.
943 See paragraph (3) of the commentary to draft article 50 of the draft articles on the law of treaties.
944 Draft article 19, paragraph 3 (d), of the draft articles on State responsibility, Yearbook … 1976, vol. II
(Part Two), pp. 95–96, read in conjunction with paragraphs (17) and (18) of the commentary to draft
article 19 (ibid., p. 102).
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Annex
(a) The prohibition of aggression;
(b) The prohibition of genocide;
(c) The prohibition of crimes against humanity;
(d) The basic rules of international humanitarian law;
(e) The prohibition of racial discrimination and apartheid;
(f) The prohibition of slavery;
(g) The prohibition of torture;
(h) The right of self-determination.
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Chapter VI
Protection of the environment in relation to armed conflicts
A. Introduction
58. At its sixty-fifth session (2013), the Commission decided to include the topic
“Protection of the environment in relation to armed conflicts” in its programme of work,
and appointed Ms. Marie G. Jacobsson as Special Rapporteur. 945
59. The Commission received and considered three reports from its sixty-sixth session
(2014) to its sixty-eighth session (2016). 946 At its sixty-sixth session (2014), the
Commission considered the preliminary report of the Special Rapporteur. 947 At its sixty-
seventh session (2015), the Commission considered the second report of the Special
Rapporteur 948 and took note of the draft introductory provisions and draft principles,
provisionally adopted by the Drafting Committee, which were subsequently renumbered
and revised for technical reasons by the Drafting Committee at the sixty-eighth session.949
Accordingly, the Commission provisionally adopted draft principles 1, 2, 5, 9, 10, 11, 12
and 13, and commentaries thereto, at that session. 950 At the same session, the Commission
also considered the third report of the Special Rapporteur, 951 and took note of draft
principles 4, 6 to 8, and 14 to 18 provisionally adopted by the Drafting Committee, 952
without provisionally adopting any commentaries.
60. At its sixty-ninth session (2017), the Commission established a Working Group to
consider the way forward in relation to the topic, as Ms. Jacobsson was no longer a member
of the Commission.953 The Working Group, chaired by Mr. Vázquez-Bermúdez, had before
it the draft commentaries prepared by the Special Rapporteur, even though she was no
longer a member of the Commission, on draft principles 4, 6 to 8, and 14 to 18
provisionally adopted by the Drafting Committee at the sixty-eighth session, and taken note
of by the Commission at the same session. The Working Group recommended to the
Commission the appointment of a new Special Rapporteur to assist with the successful
completion of its work on the topic.954 Following an oral report by the Chair of the Working
Group, the Commission decided to appoint Ms. Marja Lehto as Special Rapporteur. 955
61. At its seventieth session (2018), the Commission established a Working Group,
chaired by Mr. Vázquez-Bermúdez, to assist the Special Rapporteur in the preparation of
the draft commentaries to draft principles 4, 6 to 8, and 14 to 18, provisionally adopted by
the Drafting Committee at the sixty-ninth session, and taken note of by the Commission at
the same session.956 The Commission provisionally adopted draft principles 4, 6 to 8, and
14 to 18, and commentaries thereto, at that session. 957 Also at the seventieth session, the
945 The decision was made at the 3171st meeting of the Commission, on 28 May 2013 (see Yearbook ...
2013, vol. II (Part Two), p. 78, para. 167). For the syllabus of the topic, see Yearbook ... 2011, vol. II
(Part Two), annex V.
946 Documents A/CN.4/674 and Corr.1 (preliminary report), A/CN.4/685 (second report) and
A/CN.4/700 (third report).
947 Official Records of the General Assembly, Sixty-ninth Session, Supplement No. 10 (A/69/10), chap.
XI.
948 Ibid., Seventieth Session, Supplement No. 10 (A/70/10), chap. IX.
949 Documents A/CN.4/L.870 and A/CN.4/L.870/Rev.1.
950 Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10), para.
188.
951 Ibid., chap. X.
952 Document A/CN.4/L.876.
para. 255.
954 Ibid., para. 260.
955 Ibid., para. 262.
956 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10), chap.
IX.
957 Ibid., para. 218.
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Commission considered the first report of the Special Rapporteur958 and took note of draft
principles 19, 20 and 21, which had been provisionally adopted by the Drafting
Committee.959
62. At the present session, at its 3455th meeting on 1 May 2019, the Commission
provisionally adopted draft principles 19, 20 and 21, which had been provisionally adopted
by the Drafting Committee at the seventieth session.
63. At its 3464th to 3471st meetings, from 15 May to 27 May 2019, the Commission
considered the second report of the Special Rapporteur (A/CN.4/728).
64. In her second report, the Special Rapporteur addressed certain questions related to
the protection of the environment in non-international armed conflicts, with a focus on how
the international rules and practices concerning natural resources may enhance the
protection of the environment during and after such conflicts. The second report also
addressed certain questions related to the responsibility and liability of States and non-State
actors. The Special Rapporteur thus proposed seven draft principles. 960
65. At is 3471st meeting, on 27 May 2019, the Commission referred draft principles 6
bis, 8 bis, 13 bis, 13 ter, 13 quater, 13 quinquies, and 14 bis, as contained in the second
report of the Special Rapporteur, to the Drafting Committee, taking into account the
plenary debate in the Commission.
66. At its 3475th meeting, on 8 July 2019, the Chair of the Drafting Committee
presented 961 the report of the Drafting Committee on “Protection of the environment in
relation to armed conflicts” (A/CN.4/L.937). At the same meeting, the Commission
provisionally adopted the entire set of the draft principles on protection of the environment
in relation to armed conflicts on first reading (see section C.1 below).
67. At its 3504th to 3506th meetings, on 7 and 8 August 2019, the Commission adopted
the commentaries to the draft principles on protection of the environment in relation to
armed conflicts (see section C.2 below).
68. At its 3506th meeting, on 8 August 2019, the Commission decided, in accordance
with articles 16 to 21 of its statute, to transmit the draft principles on protection of the
environment in relation to armed conflicts (see sect. C below), through the Secretary-
General, to Governments, international organizations, including from the United Nations
and its Environment Programme, and others, including the International Committee of the
Red Cross and the Environmental Law Institute, for comments and observations, with the
request that such comments and observations be submitted to the Secretary-General by 1
December 2020.
69. At its 3506th meeting, on 8 August 2019, the Commission expressed its deep
appreciation for the outstanding contribution of the Special Rapporteur, Ms. Marja Lehto,
which had enabled the Commission to bring to a successful conclusion its first reading of
the draft principles on protection of the environment in relation to armed conflicts. The
Commission also reiterated its deep appreciation for the valuable contribution of the
previous Special Rapporteur, Ms. Marie G. Jacobsson, to the work on the topic.
958 Document A/CN.4/720.

172.
960 See second report of the Special Rapporteur (A/CN.4/728): draft principle 6 bis (Corporate due
diligence), draft principle 8 bis (Martens Clause), draft principle 13 bis (Environmental modification
techniques), draft principle 13 ter (Pillage), draft principle 13 quater (Responsibility and liability),
draft principle 13 quinquies (Corporate responsibility), and draft principle 14 bis (Human
displacement).
961 The statement of the Chair of the Drafting Committee is available from the website of the
Commission (http://legal.un.org/ilc).
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C. Text of the draft principles on protection of the environment in relation

to armed conflicts, adopted by the Commission on first reading
1. Text of the draft principles

70. The text of the draft principles adopted by the Commission on first reading is
reproduced below.
Part One
Introduction
Principle 1
Scope
The present draft principles apply to the protection of the environment before,
during or after an armed conflict.
Principle 2
Purpose
The present draft principles are aimed at enhancing the protection of the
environment in relation to armed conflict, including through preventive measures for
minimizing damage to the environment during armed conflict and through remedial
measures.
Part Two [One]
Principle 3 [4]
Measures to enhance the protection of the environment
1. States shall, pursuant to their obligations under international law, take
effective legislative, administrative, judicial and other measures to enhance the
protection of the environment in relation to armed conflict.
2. In addition, States should take further measures, as appropriate, to enhance
the protection of the environment in relation to armed conflict.
Principle 4 [I-(x), 5]
Designation of protected zones
States should designate, by agreement or otherwise, areas of major
environmental and cultural importance as protected zones.
Principle 5 [6]
Protection of the environment of indigenous peoples
1. States should take appropriate measures, in the event of an armed conflict, to
protect the environment of the territories that indigenous peoples inhabit.
2. After an armed conflict that has adversely affected the environment of the
territories that indigenous peoples inhabit, States should undertake effective
consultations and cooperation with the indigenous peoples concerned, through
appropriate procedures and in particular through their own representative institutions,
for the purpose of taking remedial measures.
Principle 6 [7]
Agreements concerning the presence of military forces in relation to armed
conflict
States and international organizations should, as appropriate, include
provisions on environmental protection in agreements concerning the presence of
military forces in relation to armed conflict. Such provisions may include preventive
measures, impact assessments, restoration and clean-up measures.
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Principle 7 [8]
Peace operations
States and international organizations involved in peace operations in relation
to armed conflict shall consider the impact of such operations on the environment
and take appropriate measures to prevent, mitigate and remediate the negative
environmental consequences thereof.
Principle 8
Human displacement
States, international organizations and other relevant actors should take
appropriate measures to prevent and mitigate environmental degradation in areas
where persons displaced by armed conflict are located, while providing relief and
assistance for such persons and local communities.
Principle 9
State responsibility
1. An internationally wrongful act of a State, in relation to an armed conflict,
that causes damage to the environment entails the international responsibility of that
State, which is under an obligation to make full reparation for such damage,
including damage to the environment in and of itself.
2. The present draft principles are without prejudice to the rules on the
responsibility of States for internationally wrongful acts.
Principle 10
Corporate due diligence
States should take appropriate legislative and other measures aimed at
ensuring that corporations and other business enterprises operating in or from their
territories exercise due diligence with respect to the protection of the environment,
including in relation to human health, when acting in an area of armed conflict or in
a post-armed conflict situation. Such measures include those aimed at ensuring that
natural resources are purchased or obtained in an environmentally sustainable
manner.
Principle 11
Corporate liability
territories can be held liable for harm caused by them to the environment, including
in relation to human health, in an area of armed conflict or in a post-armed conflict
situation. Such measures should, as appropriate, include those aimed at ensuring that
a corporation or other business enterprise can be held liable to the extent that such
harm is caused by its subsidiary acting under its de facto control. To this end, as
appropriate, States should provide adequate and effective procedures and remedies,
in particular for the victims of such harm.
Part Three [Two]
Principle 12
Martens Clause with respect to the protection of the environment in relation to
armed conflict
In cases not covered by international agreements, the environment remains
under the protection and authority of the principles of international law derived from
established custom, from the principles of humanity and from the dictates of public
conscience.
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Principle 13 [II-1, 9]
General protection of the natural environment during armed conflict
1. The natural environment shall be respected and protected in accordance with
applicable international law and, in particular, the law of armed conflict.
2. Care shall be taken to protect the natural environment against widespread,
long-term and severe damage.
3. No part of the natural environment may be attacked, unless it has become a
military objective.
Application of the law of armed conflict to the natural environment
The law of armed conflict, including the principles and rules on distinction,
proportionality, military necessity and precautions in attack, shall be applied to the
natural environment, with a view to its protection.
Environmental considerations
Environmental considerations shall be taken into account when applying the
principle of proportionality and the rules on military necessity.
Prohibition of reprisals
Attacks against the natural environment by way of reprisals are prohibited.
Protected zones
An area of major environmental and cultural importance designated by
agreement as a protected zone shall be protected against any attack, as long as it
does not contain a military objective.
Principle 18
Prohibition of pillage
Pillage of natural resources is prohibited.
Principle 19
Environmental modification techniques
In accordance with their international obligations, States shall not engage in
military or any other hostile use of environmental modification techniques having
widespread, long-lasting or severe effects as the means of destruction, damage or
injury to any other State.
Part Four
Principle 20 [19]
General obligations of an Occupying Power
1. An Occupying Power shall respect and protect the environment of the
occupied territory in accordance with applicable international law and take
environmental considerations into account in the administration of such territory.
2. An Occupying Power shall take appropriate measures to prevent significant
harm to the environment of the occupied territory that is likely to prejudice the
health and well-being of the population of the occupied territory.
3. An Occupying Power shall respect the law and institutions of the occupied
territory concerning the protection of the environment and may only introduce
changes within the limits provided by the law of armed conflict.
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Principle 21 [20]
Sustainable use of natural resources
To the extent that an Occupying Power is permitted to administer and use the
natural resources in an occupied territory, for the benefit of the population of the
occupied territory and for other lawful purposes under the law of armed conflict, it
shall do so in a way that ensures their sustainable use and minimizes environmental
harm.
Principle 22 [21]
Due diligence
An Occupying Power shall exercise due diligence to ensure that activities in
the occupied territory do not cause significant harm to the environment of areas
beyond the occupied territory.
Part Five [Three]
Principle 23 [14]
Peace processes
1. Parties to an armed conflict should, as part of the peace process, including
where appropriate in peace agreements, address matters relating to the restoration
and protection of the environment damaged by the conflict.
2. Relevant international organizations should, where appropriate, play a
facilitating role in this regard.
Principle 24 [18]
Sharing and granting access to information
1. To facilitate remedial measures after an armed conflict, States and relevant
international organizations shall share and grant access to relevant information in
accordance with their obligations under international law.
2. Nothing in the present draft principle obliges a State or international
organization to share or grant access to information vital to its national defence or
security. Nevertheless, that State or international organization shall cooperate in
good faith with a view to providing as much information as possible under the
circumstances.
Principle 25 [15]
Post-armed conflict environmental assessments and remedial measures
Cooperation among relevant actors, including international organizations, is
encouraged with respect to post-armed conflict environmental assessments and
remedial measures.
Principle 26
Relief and assistance
When, in relation to an armed conflict, the source of environmental damage
is unidentified, or reparation is unavailable, States are encouraged to take
appropriate measures so that the damage does not remain unrepaired or
uncompensated, and may consider establishing special compensation funds or
providing other forms of relief or assistance.
Principle 27 [16]
Remnants of war
1. After an armed conflict, parties to the conflict shall seek to remove or render
harmless toxic and hazardous remnants of war under their jurisdiction or control that
are causing or risk causing damage to the environment. Such measures shall be
taken subject to the applicable rules of international law.
2. The parties shall also endeavour to reach agreement, among themselves and,
where appropriate, with other States and with international organizations, on
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technical and material assistance, including, in appropriate circumstances, the

undertaking of joint operations to remove or render harmless such toxic and
hazardous remnants of war.
3. Paragraphs 1 and 2 are without prejudice to any rights or obligations under
international law to clear, remove, destroy or maintain minefields, mined areas,
mines, booby-traps, explosive ordnance and other devices.
Principle 28 [17]
Remnants of war at sea
States and relevant international organizations should cooperate to ensure
that remnants of war at sea do not constitute a danger to the environment.
2. Text of the draft principles on protection of the environment in relation to armed

conflicts and commentaries thereto
71. The text of the draft principles and commentaries thereto adopted by the
Commission on first reading at its seventy-first session is reproduced below.
Part One
Introduction
Commentary
(1) As is always the case with the Commission’s outputs, the draft principles are to be
read together with the commentaries.
(2) Structurally, the set of draft principles are divided into five parts, including the
initial part entitled “Introduction” which contains draft principles on the scope and purpose
of the draft principles. Part Two concerns guidance on the protection of the environment
before the outbreak of an armed conflict but also contains draft principles of a more general
nature that are of relevance for more than one temporal phase: before, during or after an
armed conflict. Part Three pertains to the protection of the environment during armed
conflict, and Part Four pertains to the protection of the environment in situations of
occupation. Part Five contains draft principles relative to the protection of the environment
after an armed conflict.
(3) The provisions have been cast as draft “principles”. The Commission has previously
chosen to formulate the output of its work as draft principles, both for provisions that set
forth principles of international law and for non-binding declarations intended to contribute
to the progressive development of international law and provide appropriate guidance to
States.962 The present set of draft principles contains provisions of different normative value,
including those that can be seen to reflect customary international law, and those of a more
recommendatory nature.
(4) The draft principles were prepared bearing in mind the intersection between the
international law relating to the environment and the law of armed conflict.
(5) As for the use of terms, the Commission will decide at the time of the second
reading, whether to use the term “natural environment” or “environment” in those
provisions of Part Three that draw on Additional Protocol I to the Geneva Conventions. 963
962 Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the
Judgment of the Tribunal, Yearbook ... 1950, vol. II, document A/1316, Part III, p. 374. See also
principles on the allocation of loss in the case of transboundary harm arising out of hazardous
activities, Yearbook ... 2006, vol. II (Part Two), paras. 66–67, pp. 58–90; and the guiding principles
applicable to unilateral declarations of States capable of creating legal obligations, Yearbook ... 2006,
vol. II (Part Two), para. 176, p. 161.
963 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of
victims of international armed conflicts (Additional Protocol I) (Geneva, 8 June 1977), United
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Principle 1
Scope
The present draft principles apply to the protection of the environment before,
during or after an armed conflict.
Commentary
(1) This provision defines the scope of the draft principles. It provides that they cover
three temporal phases: before, during, and after armed conflict. It was viewed as important
to signal at the outset that the scope of the draft principles relates to these phases. The
disjunctive “or” seeks to underline that not all draft principles would be applicable during
all phases. However, it is worth emphasizing that there is, at times, a certain degree of
overlap between these three phases. Furthermore, the formulation builds on discussions
within the Commission and in the Sixth Committee of the General Assembly. 964
(2) The division of the principles into the temporal phases described above (albeit
without strict dividing lines) sets out the scope ratione temporis of the draft principles. It
was considered that addressing the topic from a temporal perspective rather than from the
perspective of various areas of international law, such as international environmental law,
the law of armed conflict and international human rights law, would make the topic more
manageable and easier to delineate. The temporal phases would address legal measures
taken to protect the environment before, during and after an armed conflict. Such an
approach allowed the Commission to identify concrete legal issues relating to the topic that
arose at the different stages of an armed conflict, which facilitated the development of the
draft principles.965
(3) Regarding the scope ratione materiae of the draft principles, reference is made to
the term “protection of the environment” as it relates to the term “armed conflicts”. No
distinction is generally made between international armed conflicts and non-international
armed conflicts.
Principle 2
Purpose
The present draft principles are aimed at enhancing the protection of the
environment in relation to armed conflict, including through preventive measures for
minimizing damage to the environment during armed conflict and through remedial
measures.
Commentary
(1) This provision outlines the fundamental purpose of the draft principles. It makes it
clear that the draft principles aim to enhance the protection of the environment in relation to
armed conflict and signals the general kinds of measures that would be required to offer the
necessary protection. Such measures include preventive measures, which aim to minimize
damage to the environment during armed conflict and remedial measures, which aim to
restore the environment after damage has already been caused as a result of armed conflict.
(2) Similar to the provision on scope, the present provision covers all three temporal
phases. While it has been recognized both within the Commission 966 and within the Sixth
Nations, Treaty Series, vol. 1125, No. 17512, p. 3. See also draft principles 13, 14 and 16 of the
present draft principles.
964 The topic was put on the long-term programme of work of the Commission in 2011 and moved onto
the current programme of work in 2013, see Official Records of the General Assembly, Sixty-sixth
Session, Supplement No. 10 (A/66/10), annex E, and ibid., Sixty-eighth Session, Supplement No. 10
(A/68/10), para. 131.
965 See ibid., Sixty-eighth Session, Supplement No. 10 (A/68/10), para. 135, and ibid., Sixty-ninth Session,
Supplement No. 10 (A/69/10), paras. 192–213.
966 See, e.g., A/CN.4/685, para. 18.
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Committee of the General Assembly967 that the three phases are closely connected, 968 the
reference to “preventive measures for minimizing damage” relates primarily to the situation
before and during armed conflict, and the reference to “remedial measures” principally
concerns the post-conflict phase. It should be noted that a State may take remedial measures
to restore the environment even before the conflict has ended.
(3) The term “remedial measures” was preferred to the term “restorative measures” as it
was viewed as clearer and broader in scope, encompassing any measure of remediation that
may be taken to restore the environment. This might include, inter alia, loss or damage by
impairment to the environment, costs of reasonable measures of reinstatement, as well as
reasonable costs of clean-up associated with the costs of reasonable response measures.
Part Two
Principle 3
Measures to enhance the protection of the environment
1. States shall, pursuant to their obligations under international law, take
effective legislative, administrative, judicial and other measures to enhance the
protection of the environment in relation to armed conflict.
2. In addition, States should take further measures, as appropriate, to enhance
the protection of the environment in relation to armed conflict.
Commentary
(1) Draft principle 3 recognizes that States are required to take effective measures to
enhance the protection of the environment in relation to armed conflict. Paragraph 1 recalls
obligations under international law and paragraph 2 encourages States voluntarily to take
further effective measures. The phrase “to enhance the protection of the environment”,
included in both paragraphs, corresponds to the purpose of the set of draft principles.
Similarly, the phrase “in relation to armed conflict”, also inserted in both paragraphs, is
intended to underline the connection of environmental protection to armed conflict.
(2) Paragraph 1 reflects that States have obligations under international law to enhance
the protection of the environment in relation to armed conflict and addresses the measures
that States are obliged to take to this end. The obligation is denoted by the word “shall”.
The requirement is qualified by the expression “pursuant to their obligations under
international law”, indicating that the provision does not require States to take measures
that go beyond their existing obligations. The specific obligations of a State under this
provision will differ according to the relevant obligations under international law by which
it is bound.
(3) Consequently, paragraph 1 is formulated broadly in order to cover a wide range of
measures. The provision includes examples of the types of measures that can be taken by
States, namely, “legislative, administrative, judicial and other measures”. The examples are
not exhaustive, as indicated by the open category “other measures”. Instead, the examples
aim to highlight the most relevant types of measures to be taken by States.
(4) The law of armed conflict imposes several obligations on States that directly or
indirectly contribute to the aim of enhancing the protection of the environment in relation to
armed conflict. The notion “under international law” is nevertheless broader and covers
also other relevant treaty-based or customary obligations related to the protection of the
environment before, during or after an armed conflict, whether derived from international
environmental law, human rights law or other areas of law.
(5) As far as the law of armed conflict is concerned, the obligation to disseminate the
law of armed conflict to armed forces and, to the extent possible, also to the civilian
967 Ibid., footnote 18: Norway (on behalf of the Nordic countries) (A/C.6/69/SR.25, para. 133), Portugal
(A/C.6/69/SR.26, para. 6), Singapore (A/C.6/69/SR.26, para. 66), New Zealand (A/C.6/69/SR.27,
para. 3) and Indonesia (A/C.6/69/SR.27, para. 67).
968 For example, remedial measures might be required during an occupation.
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population contributes to the protection of the environment. 969 A relevant provision to this
end is article 83 of Additional Protocol I, which provides that the High Contracting Parties
are under the obligation to disseminate information to their forces on, among other
provisions, articles 35 and 55.970 This obligation can also be linked to common article 1 of
the Geneva Conventions, in which States Parties undertake to respect and ensure respect for
the Conventions in all circumstances. 971 Such dissemination can take place for instance
through the inclusion of relevant information in military manuals, 972 as encouraged by the
International Committee of the Red Cross (ICRC) Guidelines for Military Manuals and
Instructions on the Protection of the Environment in Times of Armed Conflict. 973
(6) Common article 1 is also interpreted to require that States, when they are in a
position to do so, exert their influence to prevent and stop violations of the Geneva
Conventions by parties to an armed conflict.974 As far as the protection of the environment
969 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field (Convention I) (Geneva, 12 August 1949), United Nations, Treaty Series, vol. 75, No.
970, p. 31, art. 47; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (Convention II) (Geneva, 12 August 1949), ibid., No.
971, p. 85, art. 48; Geneva Convention relative to the Treatment of Prisoners of War (Convention III)
(Geneva, 12 August 1949), ibid., No. 972, p. 135, art. 127; Geneva Convention relative to the
Protection of Civilian Persons in Time of War (Convention IV) (Geneva, 12 August 1949), ibid., No.
973, p. 287, art. 144; Additional Protocol I, art. 83; Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the protection of victims of non-international armed conflicts
(Additional Protocol II) (Geneva, 8 June 1977), ibid., No. 17513, p. 609, art. 19; Protocol additional
to the Geneva Conventions of 12 August 1949, and relating to the adoption of an additional
distinctive emblem (Additional Protocol III) (Geneva, 8 December 2005), ibid., vol. 2404, No. 43425,
p. 261, art. 7; and the Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects
(hereinafter, “Convention on Certain Conventional Weapons”) (Geneva, 10 October 1980), ibid., vol.
1342, No. 22495, p. 137, art. 6. See also J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary
International Humanitarian Law, vol. I, Rules (Cambridge, Cambridge University Press, 2005), rule
143, pp. 505–508.
970 Article 35 of Additional Protocol I reads:
“1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of
warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a
nature to cause superfluous injury or unnecessary suffering.
3. It is prohibited to employ methods or means of warfare which are intended, or may be
expected, to cause widespread, long-term and severe damage to the natural environment.”
Article 55 reads:
“1. Care shall be taken in warfare to protect the natural environment against widespread, long-
term and severe damage. This protection includes a prohibition of the use of methods or means of
warfare which are intended or may be expected to cause such damage to the natural environment
and thereby to prejudice the health or survival of the population.
2. Attacks against the natural environment by way of reprisals are prohibited.”
971 Geneva Convention I, art. 1; Geneva Convention II, art. 1; Geneva Convention III, art. 1; Geneva
Convention IV, art. 1.
972 Examples of States that have introduced such provisions in their military manuals include Argentina,
Australia, Belgium, Benin, Burundi, Canada, Central African Republic, Chad, Colombia, Côte
d’Ivoire, France, Germany, Italy, Kenya, Netherlands, New Zealand, Peru, the Russian Federation,
South Africa, Spain, Sweden, Switzerland, Togo, Ukraine, the United Kingdom of Great Britain and
Northern Ireland and the United States of America. Information available at https://ihl-
databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule45 (accessed on 8 July 2019).
973 The Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times
of Armed Conflict (A/49/323, annex) state, in guideline 17, that: “States shall disseminate these rules
and make them known as widely as possible in their respective countries and include them in their
programmes of military and civil instruction”.
974 See the ICRC commentary (2016) on article 1 of Geneva Convention I (the commentaries on the
Geneva Conventions of 1949 and the Protocols thereto are available from www.icrc.org/en/war-and-
law/treaties-customary-law/geneva-conventions (accessed on 8 July 2019)). The ICRC study on
customary international law provides a broader interpretation, according to which the obligation to
respect and ensure respect is not limited to the Geneva Conventions but refers to the entire body of
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is concerned, this could entail, for instance, sharing of scientific expertise as to the nature of
the damage caused to the natural environment by certain types of weapons, or making
available technical advice as to how to protect areas of particular ecological importance or
fragility.
(7) A further obligation to conduct “a weapons review” is found in article 36 of
Additional Protocol I. According to this provision, a High Contracting Party is under an
obligation to determine whether the employment of a new weapon would, in some or all
circumstances, be prohibited by Additional Protocol I or by any other applicable rule of
international law. 975 It is notable that the obligation covers the study, development,
acquisition or adoption of all means or methods of warfare: both weapons and the way in
which they can be used.976 According to the ICRC commentary on the Additional Protocols,
article 36 “implies the obligation to establish internal procedures for the purpose of
elucidating the issue of legality”. A number of States, including States not party to
Additional Protocol I, are known to have established such procedures. 977
(8) The obligation to conduct “a weapons review” binds all High Contracting Parties to
Additional Protocol I. The reference to “any other rule of international law” makes it clear
that the obligation may go beyond merely studying whether the employment of a certain
weapon would be contrary to the law of armed conflict. This means, first, an examination
of whether the employment of a new weapon, means or method of warfare would, in some
or all circumstances, be prohibited by Additional Protocol I, including articles 35 and 55,
which are of direct relevance to the protection of the environment. Second, there is a need
to go beyond Additional Protocol I and analyse whether any other rules of the law of armed
conflict, treaty or customary, or any other areas of international law might prohibit the
employment of a new weapon, means or method of warfare. Such examination will include
taking into account any applicable international environmental law and human rights
obligations.978
(9) While Additional Protocol I applies only to international armed conflict, the
weapons review provided for in article 36 also promotes respect for the law in non-
international armed conflicts. Furthermore, the use of weapons that are inherently
indiscriminate and the use of means or methods of warfare that are of a nature to cause
superfluous injury or unnecessary suffering are prohibited under customary international
law. 979 These rules are not limited to international armed conflict. 980 It follows that new
international humanitarian law binding upon a particular State (Henckaerts and Doswald-Beck,
Customary International Humanitarian Law … (footnote 969 above), rule 139, p. 495).
975 Additional Protocol I, art. 36.
976 C. Pilloud and J. Pictet, “Article 35: Basic rules”, ICRC Commentary on the Additional Protocols of 8
June 1977 to the Geneva Conventions of 12 August 1949, Y. Sandoz, C. Swinarski and B.
Zimmerman (eds.) (Geneva, Martinus Nijhoff, 1987), p. 398, para. 1402. The commentary on
“Article 36: New weapons” refers to this section for an explanation of means and methods on p. 425,
para. 1472.
977 States that are known to have in place national mechanisms to review the legality of weapons and that
have made the instruments setting up these mechanisms available to ICRC include Australia,
Belgium, Canada, Denmark, Germany, the Netherlands, Norway, Sweden, the United Kingdom and
the United States. Other States have indicated to ICRC that they carry out reviews pursuant to
Ministry of Defence instructions, but these have not been made available. Information received from
ICRC on 31 December 2017.
978 Some States, such as Sweden, Switzerland and the United Kingdom, see a value in considering
international human rights law in the review of military weapons because military personnel may in
some situations (e.g. peacekeeping missions) use the weapon to conduct law enforcement missions.
For further commentary, see S. Casey-Maslen, N. Corney and A. Dymond-Bass, “The review of
weapons under international humanitarian law and human rights law”, Weapons under International
Human Rights Law, Casey-Maslen (ed.) (Cambridge University Press, Cambridge, 2014).
979 Henckaerts and Doswald-Beck, Customary International Humanitarian Law … (see footnote 969
above), rules 70 and 71, pp. 237–250.
980 By virtue of the customary rule that civilians must not be made the object of attack, weapons that are
by nature indiscriminate are also prohibited in non-international armed conflicts. The prohibition of
weapons that are by nature indiscriminate is also set forth in several military manuals applicable in
non-international armed conflicts, for instance those of Australia, Colombia, Ecuador, Germany,
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weapons as well as methods of warfare are to be reviewed against all applicable

international law, including the law governing non-international armed conflicts, in
particular as far as the protection of civilians and the principle of distinction are concerned.
The obligation not to use inherently indiscriminate weapons, means or methods of warfare
has the indirect effect of protecting the environment in a non-international armed conflict.
Furthermore, the special treaty-based prohibitions of certain weapons (such as biological
and chemical weapons) that may cause serious environmental harm must be observed.
(10) States also have the obligation to effectively exercise jurisdiction and prosecute
persons suspected of certain war crimes that have a bearing on the protection of the
environment in relation to armed conflict, to the extent that such crimes fall within the
category of grave breaches of the Geneva Conventions. 981 Examples of grave breaches, the
suppression of which provides indirect protection to certain components of the natural
environment, include wilfully causing great suffering or serious injury to body or health
and extensive destruction and appropriation of property, not justified by military necessity
and carried out wantonly and unlawfully.
(11) Yet another treaty-based obligation is for States to record the laying of mines in
order to facilitate future clearing of landmines. 982
(12) Paragraph 2 of the draft principle addresses voluntary measures that would further
enhance the protection of the environment in relation to armed conflict. This paragraph is
therefore less prescriptive than paragraph 1 and the word “should” is used to reflect this
difference. The phrases “[i]n addition” and “further measures” both serve to indicate that
this provision goes beyond the measures that States shall take pursuant to their obligations
under international law, which are addressed in paragraph 1. Like the measures referred to
in paragraph 1, the measures taken by States may be of legislative, judicial, administrative
or other nature. Furthermore, they could include special agreements providing additional
protection to the natural environment in situations of armed conflict. 983
(13) In addition to encouraging States to take voluntary measures to enhance the
protection of the environment in relation to armed conflict beyond their current obligations
under international law, the paragraph captures the recent developments in the practice of
States to this end.984 One example of how States can continue this development is through
providing more explicit guidelines on environmental protection in their military manuals. 985
Such guidelines may, for instance, aim to ensure training of military personnel involved in
peace operations on the environmental aspects of the operation, as well as the conduct of
Nigeria and the Republic of Korea. Information available at https://ihl-databases.icrc.org/customary-

ihl/eng/docs/v1_rul_rule71#Fn_1_19 (accessed on 8 July 2019).
Geneva Convention IV, art. 146.
982 See, for example, the amended Protocol II on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II, as amended on 3 May
1996) annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects
(Geneva, 3 May 1996) (hereinafter, “amended Protocol II to the Convention on Certain Conventional
Weapons”), United Nations, Treaty Series, vol. 2048, No. 22495, p. 93.
983 For special agreements, see Geneva Convention I, art. 6; Geneva Convention II, art. 6; Geneva
Convention III, art. 6; Geneva Convention IV, art. 7. See also common art. 3 of the Geneva
Conventions.
984 See, e.g., Slovenia, Rules of Service in the Slovenian Armed Forces, item 210; Paraguay, National
Defence Council, Política de Defensa Nacional de la Republica de Paraguay [National Defence
Policy of the Republic of Paraguay], 7 October 1999, para. I (A); and Netherlands, note verbale dated
20 April 2016 from the Permanent Mission of the Netherlands to the United Nations addressed to the
Secretariat, para. 5. See also contributions in the Sixth Committee from Croatia (A/C.6/70/SR.24),
para. 89, Cuba (ibid.), para. 10, Czech Republic (ibid., para. 45), New Zealand (A/C.6/70/SR.25),
para. 102, and Palau (ibid.), para. 27.
985 Examples of States that have done so include Australia, Burundi, Cameroon, Côte d’Ivoire, the
Netherlands, Republic of Korea, Switzerland, Ukraine, the United Kingdom and the United States.
Information available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule44 (accessed
on 8 July 2019). For further examples, see A/CN.4/685, paras. 69–76 and A/CN.4/700, para. 52.
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environmental assessments.986 Other measures that should be taken by States can aim at
enhancing cooperation, as appropriate, with other States, as well as with relevant
(14) The overall development that paragraph 2 aims to capture and encourage has its
basis also in the practice of international organizations. One example of such practice is the
United Nations initiative “Greening the Blue Helmets”, which aims to function as an
environmental, sustainable management programme. 987 A further example of this
development is the joint environmental policy developed by the United Nations Department
of Peacekeeping Operations and Department of Field Services. The policy includes
obligations to develop environmental baseline studies and adhere to a number of
multilateral environmental agreements. References are made to treaties and instruments,
including the Declaration of the United Nations Conference on the Human Environment
(Stockholm Declaration), 988 the World Charter for Nature, 989 the Convention on
International Trade in Endangered Species of Wild Fauna and Flora, 990 the Convention on
Biological Diversity 991 and the Convention on Wetlands of International Importance
especially as Waterfowl Habitat (Ramsar Convention), 992 as standards to be considered
when a mission establishes its environmental objectives and procedures.993
Principle 4
Designation of protected zones
States should designate, by agreement or otherwise, areas of major
environmental and cultural importance as protected zones.
Commentary
(1) Draft principle 4 is entitled “Designation of protected zones” and provides that
States should designate, by agreement or otherwise, areas of major environmental and
cultural importance as protected zones. Part Two (“Principles of general application”),
where this provision is placed, deals with the pre-conflict stage, when peace is prevailing,
but also contains principles of a more general nature that are relevant to more than one
temporal phase. Draft principle 4 therefore does not exclude instances in which such areas
could be designated either during or soon after an armed conflict. In addition, draft
principle 4 has a corresponding draft principle (draft principle 17) which is placed in Part
Three “Principles applicable during armed conflict”.
(2) A State may already be taking the necessary measures to protect the environment in
general. Such measures may include, in particular, preventive measures in the event that an
armed conflict might occur. It is not uncommon that physical areas are assigned a special
legal status as a means to protect and preserve a particular area. This can be done through
international agreements or through national legislation. In some instances such areas are
not only protected in peacetime, but are also immune from attack during an armed
conflict.994 As a rule, this is the case with demilitarized and neutralized zones. It should be
noted that the term “demilitarized zones” has a special meaning in the context of the law of
armed conflict. Demilitarized zones are established by the parties to a conflict and imply
986 See the information on the United Nations Environment Programme website regarding post-crisis
environmental recovery, available at www.unenvironment.org/explore-topics/disasters-
conflicts/what-we-do/recovery (accessed on 8 July 2019).
987 United Nations Environment Programme, Greening the Blue Helmets Environment, Natural
Resources and UN Peacekeeping Operations (Nairobi, 2012).
988 Report of the United Nations Conference on the Human Environment (A/CONF.48/14/Rev.1; United
Nations publication, Sales No. E.73.II.A.14), chap. I.
989 General Assembly resolution 37/7 of 28 October 1982, annex.
990 Washington, 3 March 1975, United Nations, Treaty Series, vol. 993, No. 14537, p. 243.
991 Convention on Biological Diversity (Rio de Janeiro, 5 June 1992), ibid., vol. 1760, No. 30619, p. 79.
992 Ramsar, 2 February 1971, ibid., vol. 996, No. 14583, p. 245.
993 United Nations, Department of Peacekeeping Operations and the Department of Field Support,
“Environmental Guidelines for UN Field Missions”, 24 July 2009. See also the Department of Field
Support website, available at https://fieldsupport.un.org/en/environment (accessed on 8 July 2019).
994 A/CN.4/685, para. 210.
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that the parties are prohibited from extending their military operations to that zone if such
an extension is contrary to the terms of their agreement. 995 Demilitarized zones can also be
established and implemented in peacetime. 996 Such zones can cover various degrees of
demilitarization, ranging from areas that are fully demilitarized to ones which are partially
demilitarized, such as nuclear weapon-free zones.997
(3) When designating protected zones under this draft principle, particular weight
should be given to the protection of areas of major environmental importance that are
susceptible to the adverse consequences of hostilities. 998 Granting special protection to areas
of major ecological importance was suggested at the time of the drafting of the Additional
Protocols to the Geneva Conventions. 999 While the proposal was not adopted, it should be
recognized that it was put forward at a relatively early stage in the development of
international environmental law. Other types of zones are also relevant in this context, and
will be discussed below.
(4) The areas referred to in this draft principle may be designated by agreement or
otherwise. The reference to “agreement or otherwise” is intended to introduce some
flexibility. The types of situations foreseen may include, inter alia, an agreement concluded
verbally or in writing, reciprocal and concordant declarations, as well as those created
through a unilateral declaration or designation through an international organization. It
should be noted that the reference to the word “State” does not preclude the possibility of
agreements being concluded with non-State actors. The area declared has to be of “major
environmental and cultural importance”. The formulation leaves open the precise meaning
of this requirement on purpose, to allow room for development. While the designation of
protected zones could take place at any time, it should preferably be before or at least at the
outset of an armed conflict.
(5) It goes without saying that under international law, an agreement cannot, in principle,
bind a third party without its consent.1000 Thus two States cannot designate a protected area
in a third State. The fact that States cannot regulate areas outside their sovereignty or
jurisdiction in a manner that is binding on third States, whether through agreements or
otherwise, was also outlined in the second report of the Special Rapporteur. 1001
(6) Different views were initially expressed as to whether or not the word “cultural”
should be included. Ultimately, the Commission opted for the inclusion of the term. It was
noted that it is sometimes difficult to draw a clear line between areas which are of
995 See Additional Protocol I, art. 60. See also Henckaerts and Doswald-Beck, Customary International
Humanitarian Law … (footnote 969 above), rule 36, p. 120. The ICRC study on customary law
considers that this constitutes a rule under customary international law and is applicable in both
international and non-international armed conflicts.
996 See e.g. Antarctic Treaty (Washington, 1 December 1959), United Nations, Treaty Series, vol. 402,
No. 5778, p. 71, art. I. See, e.g., the definition found in M. Björklund and A. Rosas, Ålandsöarnas
Demilitarisering och Neutralisering (Åbo, Åbo Academy Press, 1990). The Åland Islands are both
demilitarized and neutralized. Björklund and Rosas list as further examples of demilitarized and
neutralized areas Spitzbergen, Antarctica and the Strait of Magellan (ibid., p. 17). See also L.
Hannikainen, “The continued validity of the demilitarized and neutralized status of the Åland
Islands”, Zeitschrift fűr ausländisches öffentliches Recht und Völkerrecht, vol. 54 (1994), p. 614, at p.
616.
997 Ibid.
998 See A/CN.4/685, para. 225. See also C. Droege and M.-L. Tougas, “The protection of the natural
environment in armed conflict – existing rules and need for further legal protection”, Nordic Journal
of International Law, vol. 82 (2013), pp. 21–52, at p. 43.
999 The working group of Committee III of the Conference submitted a proposal for a draft article 48 ter
providing that “publicly recognized nature reserves with adequate markings and boundaries declared
as such to the adversary shall be protected and respected except when such reserves are used
specifically for military purposes”. See C. Pilloud and J. Pictet, “Article 55: Protection of the natural
environment” in ICRC Commentary on the Additional Protocols …, Sandoz et al. (footnote 976
above), p. 664, paras. 2138–2139.
1000 As recognized by the Permanent Court in the case concerning the Factory At Chorzów, P.C.I.J.,
Series A, No. 17, p. 45 and reflected in article 34 of the Vienna Convention on the Law of Treaties
(Vienna, 23 May 1969), United Nations, Treaty Series, vol. 1155, No. 18232, p. 331.
1001 A/CN.4/685, para. 218.
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environmental importance and areas which are of cultural importance. This is also
recognized in the Convention concerning the Protection of the World Cultural and Natural
Heritage (hereinafter the World Heritage Convention). 1002 The fact that the heritage sites
under this Convention are selected on the basis of a set of ten criteria, including both
cultural and natural (without differentiating between them) illustrates this point. 1003
(7) It should be recalled that prior to an armed conflict, States parties to the 1954
Convention for the Protection of Cultural Property in the Event of Armed Conflict 1004
(hereinafter the 1954 Hague Convention) and its Protocols, are under the obligation to
establish inventories of cultural property items that they wish to enjoy protection in the case
of an armed conflict, in accordance with article 11, paragraph 1, of the 1999 Protocol to the
Convention.1005 In peacetime, State parties are required to take other measures that they find
appropriate to protect their cultural property from anticipated adverse impacts of armed
conflicts, in accordance with article 3 of the Convention.
(8) The purpose of the present draft principle is not to affect the regime of the 1954
Hague Convention, which is separate in its scope and purpose. The Commission underlines
that the 1954 Hague Convention and its Protocols are the special regime that governs the
protection of cultural property both in times of peace, and during armed conflict. It is not
the intention of the present draft principle to replicate that regime. The idea here is to
protect areas of major “environmental importance”. The term “cultural” is used in this
context to indicate the existence of a close linkage to the environment. The draft principle
does not extend to cultural objects per se. The term would nevertheless include, for
example, ancestral lands of indigenous peoples, who depend on the environment for their
sustenance and livelihood.
(9) The designation of the areas foreseen by this draft principle can be related to the
rights of indigenous peoples, particularly if the protected area also serves as a sacred area
which warrants special protection. In some cases, the protected area may also serve to
conserve the particular culture, knowledge and way of life of the indigenous populations
living inside the area concerned. The importance of preserving indigenous culture and
knowledge has now been formally recognised in international law under the Convention on
Biological Diversity. Article 8 (j) states that each Contracting Party shall, as far as possible
and as appropriate: “Subject to its national legislation, respect, preserve and maintain
knowledge, innovations and practices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and sustainable use of biological diversity
and promote their wider application with the approval and involvement of the holders of
such knowledge, innovations and practices and encourage the equitable sharing of the
benefits arising from the utilization of such knowledge, innovations and practices”. In
addition, the United Nations Declaration on the Rights of Indigenous Peoples, 1006 although
not a binding instrument, refers to the right to manage, access and protect religious and
cultural sites.
(10) The protection of the environment as such and the protection of sites of cultural and
natural importance sometimes correspond or overlap. The term “cultural importance”,
which is also used in draft principle 17, builds on the recognition of the close connection
between the natural environment, cultural objects and characteristics in the landscape in
environmental protection instruments such as the 1993 Convention on Civil Liability for
1002 Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage
Convention) (Paris, 16 November 1972), ibid., vol. 1037, No. 15511, p. 151.
1003 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention (8 July
2015) WHC.15/01, para. 77.1. At present, 197 sites representing natural heritage across the world are
listed on the World Heritage List. A number of these also feature on the List of World Heritage in
Danger in accordance with article 11, para. 4, of the World Heritage Convention.
1004 Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 14
May 1954), United Nations, Treaty Series, vol. 249, No. 3511, p. 240.
1005 Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the
Event of Armed Conflict (1999 Second Protocol) (The Hague, 26 March 1999), ibid., vol. 2253, No.
3511, p. 172.
1006 General Assembly resolution 61/295, annex, art. 12.
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Damage Resulting from Activities Dangerous to the Environment. 1007 Article 2, paragraph
10, defines the term “environment” for the purpose of the Convention to include: “natural
resources both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction
between the same factors; property which forms part of cultural heritage; and characteristic
aspects of the landscape”. In addition, article 1, paragraph 2, of the Convention on the
Protection and Use of Transboundary Watercourses and International Lakes stipulates that
“effects on the environment include effects on human health and safety, flora, fauna, soil,
air, water, climate, landscape and historical monuments or other physical structures or the
interaction among these factors; they also include effects on the cultural heritage or socio-
economic conditions resulting from alterations to those factors”.1008
(11) Moreover, the Convention on Biological Diversity speaks to the cultural value of
biodiversity. The preamble of the Convention on Biological Diversity reaffirms that the
parties are: “Conscious of the intrinsic value of biological diversity and of the ecological,
genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values
of biological diversity and its components.”1009 Similarly, the first paragraph of annex I to
the Convention on Biological Diversity highlights the importance of ensuring protection for
ecosystems and habitats “containing high diversity, large numbers of endemic or threatened
species, or wilderness; required by migratory species; of social, economic, cultural or
scientific importance; or, which are representative, unique or associated with key
evolutionary or other biological processes”.
(12) In addition to these binding instruments, a number of non-binding instruments use a
lens of cultural importance and value to define protected areas. For instance, the draft
convention on the prohibition of hostile military activities in internationally protected areas
(prepared by the IUCN Commission on Environmental Law and the International Council
of Environmental Law) defines the term “protected areas” as follows: “natural or cultural
area [sic] of outstanding international significance from the points of view of ecology,
history, art, science, ethnology, anthropology, or natural beauty, which may include, inter
alia, areas designated under any international agreement or intergovernmental programme
which meet these criteria”.1010
(13) A few examples of domestic legislation referring to the protection of both cultural
and environmental areas can also be mentioned in this context. For example, the Act on the
Protection of Cultural Property of 29 August 1950 of Japan, provides for animals and plants
which have a high scientific value to be listed as “protected cultural property”. 1011 The
National Parks and Wildlife Act of 1974 of New South Wales in Australia may apply to
any area of natural, scientific or cultural significance. 1012 Finally, the Italian Protected Areas
Act of 6 December 1991 defines “nature parks” as areas of natural and environmental value
constituting homogeneous systems characterised by their natural components, their
landscape and aesthetic values and the cultural tradition of the local populations. 1013
1007 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment
(Lugano, 21 June 1993), Council of Europe, European Treaty Series, No. 150. For more information
on the applicability of multilateral environmental agreements in connection to areas of particular
environmental interest, see B. Sjöstedt, Protecting the Environment in Relation to Armed Conflict:
The Role of Multilateral Environmental Agreements (PhD thesis, Lund University 2016).
1008 Convention on the Protection and Use of Transboundary Watercourses and International Lakes
(Helsinki, 17 March 1992), United Nations, Treaty Series, vol. 1936, No. 33207, p. 269.
1009 Convention on Biological Diversity, preamble.
1010 International Union for Conservation of Nature, draft convention on the prohibition of hostile military
activities in internationally protected areas (1996), art. 1.
1011 Japan, Law for the Protection of Cultural Property, Law No. 214, 30 May 1950. Available from
www.unesco.org/culture/natlaws/media/pdf/japan/japan_lawprotectionculturalproperty_engtof.pdf
(accessed on 8 July 2019).
1012 Australia, New South Wales Consolidated Acts, National Parks and Wildlife Act, Act 80 of 1974.
Available from www.austlii.edu.au/au/legis/nsw/consol_act/npawa1974247/ (accessed on 8 July
2019).
1013 Italy, Act No. 394 laying down the legal framework for protected areas, 6 December 1991. Available
from http://faolex.fao.org.
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Principle 5
Protection of the environment of indigenous peoples
1. States should take appropriate measures, in the event of an armed conflict, to
protect the environment of the territories that indigenous peoples inhabit.
2. After an armed conflict that has adversely affected the environment of the
territories that indigenous peoples inhabit, States should undertake effective
consultations and cooperation with the indigenous peoples concerned, through
appropriate procedures and in particular through their own representative institutions,
for the purpose of taking remedial measures.
Commentary
(1) Draft principle 5 recognizes that States should, due to the special relationship
between indigenous peoples and their environment, take appropriate measures to protect
such an environment in relation to an armed conflict. It further recognizes that where armed
conflict has adversely affected the environment of indigenous peoples’ territories, States
should attempt to undertake remedial measures. In the light of the special relationship
between indigenous peoples and their environment, these steps should be taken in a manner
that consults and cooperates with such peoples, respecting their relationship and through
their own leadership and representative structures.
(2) The special relationship between indigenous peoples and their environment has been
recognized, protected and upheld by international instruments such as the Indigenous and
Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization and
the United Nations Declaration on the Rights of Indigenous Peoples,1014 as well as in the
practice of States and in the jurisprudence of international courts and tribunals. To this end,
the land of indigenous peoples has been recognized as having a “fundamental importance
for their collective physical and cultural survival as peoples”.1015
(3) Paragraph 1 is based, in particular, on article 29, paragraph 1, of the United Nations
Declaration on the Rights of Indigenous Peoples, which expresses the right of indigenous
peoples to “the conservation and protection of the environment and the productive capacity
of their lands or territories and resources”,1016 and article 7, paragraph 4, of ILO Indigenous
and Tribal Peoples Convention, 1989 (No. 169), which recognizes that “Governments shall
take measures, in co-operation with the peoples concerned, to protect and preserve the
environment of the territories they inhabit”.
1014 See International Labour Organization (ILO), Convention concerning Indigenous and Other Tribal
Peoples in Independent Countries (Geneva, 27 June 1989) (Indigenous and Tribal Peoples
Convention, 1989 (No. 169)), which revised the Indigenous and Tribal Populations Convention, 1957
(No. 107); United Nations Declaration on the Rights of Indigenous Peoples, General Assembly
resolution 61/295 of 13 September 2007, annex, art. 26. The reports of the Special Rapporteur on the
rights of indigenous peoples, and the Special Rapporteur on human rights and the environment
(formerly the Independent Expert on human rights and the environment) provide an overview of the
application of the rights of indigenous peoples in connection to the environment and natural resources
(see, for example, A/HRC/15/37 and A/HRC/4/32, respectively).
1015 See, for example, Río Negro Massacres v. Guatemala, in which the Inter-American Court of Human
Rights recognized “the culture of the members of the indigenous communities corresponds to a
specific way of being, seeing and acting in the world, constituted on the basis of their close
relationship with their traditional lands and natural resources, not only because these are their main
means of subsistence, but also because they constitute an integral component of their cosmovision,
religious beliefs and, consequently, their cultural identity”. Río Negro Massacres v. Guatemala,
Judgment (Preliminary Objection, Merits, Reparations and Costs), Series C, Case No. 250, 4
September 2012, para. 177, footnote 266. C.f. Case of the Yakye Axa Indigenous Community v.
Paraguay, Judgment (Merits, Reparations and Costs), Series C, Case No. 125, 17 June 2005, para.
135, and Case of Chitay Nech et al. v. Guatemala, Judgment (Preliminary Objections, Merits,
Reparations, and Costs), Series C, Case No. 212, 25 May 2010, para. 147, footnote 160.
1016 See also American Declaration on the Rights of Indigenous Peoples, adopted on 15 June 2016,
Organization of American States, General Assembly, Report of the Forty-Sixth Regular Session,
Santo Domingo, Dominican Republic, June 13–15, 2016, XLVI-O.2, Proceedings, vol. I, resolution
AG/RES. 2888 (XLVI-O/16), art. XIX, para. 4.
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(4) The specific rights of indigenous peoples over certain lands or territories may be the
subject of different legal regimes in different States. Further, in international instruments
concerning the rights of indigenous peoples, various formulations are used to refer to the
lands or territories connected to indigenous peoples, and over which they have various
rights and protective status.1017
(5) Armed conflict may have the effect of increasing existing vulnerabilities to
environmental harm or creating new types of environmental harm on the territories
concerned and thereby affecting the survival and well-being of the peoples connected to it.
Under paragraph 1, in the event of an armed conflict, States should take appropriate
measures to protect the relationship that indigenous peoples have with their ancestral lands.
The appropriate protective measures referred to in paragraph 1 may be taken, in particular,
before or during an armed conflict. The wording of the paragraph is broad enough to allow
for the measures to be adjusted according to the circumstances.
(6) For example, the concerned State should take steps to ensure that military activities
do not take place in the lands or territories of indigenous peoples unless justified by a
relevant public interest or otherwise freely agreed with or requested by the indigenous
people concerned.1018 This could be achieved through avoiding placing military installations
in indigenous peoples’ lands or territories, and by designating their territories as protected
areas, as set out in draft principle 4. In general, the concerned State should consult
effectively with the indigenous peoples concerned prior to using their lands or territories for
military activities. 1019 During an armed conflict, the rights, lands and territories of
indigenous peoples also enjoy the protections provided by the law of armed conflict and
applicable human rights law.1020
(7) Paragraph 2 focuses on the phase after an armed conflict has ended. The purpose of
this provision is to facilitate the taking of remedial measures in the event that an armed
conflict has adversely affected the environment of the territories that indigenous peoples
inhabit.1021 In doing so, it seeks to ensure the participatory rights of indigenous peoples in
1017 See, for example, “lands or territories, or both as applicable, which they occupy or otherwise use”
used in art. 13, 1, of ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), or “lands,
territories and resources” used in the preamble of United Nations Declaration on the Rights of
Indigenous Peoples.
1018 See United Nations Declaration on the Rights of Indigenous Peoples, art. 30:
“1. Military activities shall not take place in the lands or territories of indigenous peoples, unless
justified by a relevant public interest or otherwise freely agreed with or requested by the
indigenous people concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned, through
appropriate procedures and in particular through their representative institutions, prior to using
their lands or territories for military activities.”
1019 Ibid.
1020 See the American Declaration on the Rights of Indigenous Peoples, art. XXX, paras. 3 and 4, which
read:
“3. Indigenous peoples have the right to protection and security in situations or periods of internal
or international armed conflict, in accordance with international humanitarian law.
4. States, in compliance with international agreements to which they are party, in particular
those of international humanitarian law and international human rights law, including the Geneva
Convention relative to the Protection of Civilian Persons in Time of War, and Protocol II thereof
relating to the protection of victims of non-international armed conflicts, shall, in the event of
armed conflicts, take adequate measures to protect the human rights, institutions, lands, territories,
and resources of indigenous peoples and their communities ...”.
1021 According to the United Nations Declaration on the Rights of Indigenous Peoples, article 28,
“[i]ndigenous peoples have the right to redress, by means that can include restitution or, when this is
not possible, just, fair and equitable compensation, for the lands, territories and resources which they
have traditionally owned or otherwise occupied or used, and which have been confiscated, taken,
occupied, used or damaged without their free, prior and informed consent”. Similarly, the American
Declaration on the Rights of Indigenous Peoples, art. XXXIII, states: “Indigenous peoples and
individuals have the right to effective and suitable remedies, including prompt judicial remedies, for
the reparation of any violation of their collective and individual rights. States, with full and effective
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issues relating to their territories in a post-conflict context, while focusing on States as the
subjects of the paragraph.
(8) In such instance, the concerned States should undertake effective consultations and
cooperation with the indigenous peoples concerned, through appropriate procedures and, in
particular, through their own representative institutions. In doing so, States should consider
the special nature of the relationship between indigenous peoples and their territories – in
its social, political, spiritual, cultural and other aspects. Further, States should consider that
this relationship is often of a “collective” nature.1022
(9) The need to proceed through appropriate procedures and representative institutions
of indigenous peoples has been included to acknowledge the diversity of the existing
procedures within different States that allow for effective consultation and cooperation with
indigenous peoples, and the diversity of their modes of representation in order to obtain
their free, prior and informed consent before adopting measures that may affect them. 1023
Principle 6
Agreements concerning the presence of military forces in relation to armed
conflict
States and international organizations should, as appropriate, include
provisions on environmental protection in agreements concerning the presence of
military forces in relation to armed conflict. Such provisions may include preventive
measures, impact assessments, restoration and clean-up measures.
Commentary
(1) Draft principle 6 addresses agreements concluded by States among themselves and
between States and international organizations, concerning the presence of military forces
in relation to armed conflict. The phrase “in relation to armed conflict” reflects the purpose
of the draft principles: to enhance the protection of the environment in relation to armed
conflict. Consequently, the provision does not refer to situations in which military forces
are being deployed without any relation to an armed conflict, since such situations are
outside the scope of the topic.
(2) The draft principle is cast in general terms to refer to “agreements concerning the
presence of military forces in relation to armed conflict”. The specific designation and
purpose of such agreements can vary, and may, depending on the particular circumstances,
include status-of-forces and status-of-mission agreements. The purpose of the draft
principle is to reflect recent developments whereby States and international organizations
have begun addressing matters relating to environmental protection in agreements
concerning the presence of military forces concluded with host States. 1024 The word “should”
participation of indigenous peoples, shall provide the necessary mechanisms for the exercise of this
right.”
1022 For example, see article 13 of ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), which
states that “In applying the provisions of this Part of the Convention governments shall respect the
special importance for the cultures and spiritual values of the peoples concerned of their relationship
with the lands or territories, or both as applicable, which they occupy or otherwise use, and in
particular the collective aspects of this relationship”. Though specific to that Convention’s
application, it explicitly notes the collective aspects of the relationship that indigenous peoples have
with their lands or territories.
1023 See for instance, United Nations Declaration on the Rights of Indigenous Peoples, art. 19. The Inter-
American Court of Human Rights has established safeguards requiring States to obtain the “free,
prior, and informed consent [of indigenous peoples], according to their customs and traditions”. See
Case of the Saramaka People v. Suriname, Judgment (Preliminary Objections, Merits, Reparations,
and Costs), Series C, No. 172, 28 November 2007, para. 134.
1024 The Agreement between the European Union and the former Yugoslav Republic of Macedonia on the
status of the European Union-led forces in the former Yugoslav Republic of Macedonia (Official
Journal L 082, 29/03/2003 P. 0046 – 0051, annex; hereinafter, “Concordia status-of-forces
agreement”), art. 9, provided a duty to respect international norms regarding, inter alia, the
sustainable use of natural resources. See Agreement between the European Union and the Former
Yugoslav Republic of Macedonia on the status of the European Union-led forces in the former
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indicates that this provision is not mandatory in nature, but rather aims at acknowledging
and encouraging this development.
(3) Examples of environmental provisions in agreements concerning the presence of
military forces in relation to armed conflict include the United States-Iraq agreement on the
withdrawal from and temporary presence of United States forces in Iraq, which contains an
explicit provision on the protection of the environment. 1025 Another example is the status-
of-forces agreement between the North Atlantic Treaty Organization (NATO) and
Afghanistan, in which the parties agree to pursue a preventative approach to environmental
protection.1026 The status-of-mission agreement under the European Security and Defence
Policy also makes several references to environmental obligations. 1027 Relevant treaty
practice includes also the agreement between Germany and other NATO States, which
states that potential environmental effects shall be identified, analysed and evaluated, in
order to avoid environmental burden. 1028 Moreover, the Memorandum of Special
Understanding between the United States and the Republic of Korea contains provisions on
environmental protection.1029 Reference can further be made to arrangements applicable to
short-term presence of foreign armed forces in a country for the purpose of exercises,
transit by land or training.1030
(4) Reference can also be made to other agreements, including those concerning the
presence of military forces with a less clear relation to armed conflict, such as the status-of-
forces agreement between the United States and Australia, which contains a relevant
provision on damage claims, 1031 and the Enhanced Defence Cooperation Agreement
Yugoslav Republic of Macedonia, available at https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX:22003A0329(01) (accessed on 8 July 2019).
1025 Agreement between the United States of America and the Republic of Iraq on the Withdrawal of
United States Forces from Iraq and the Organization of Their Activities during their Temporary
Presence in Iraq (Baghdad, 17 November 2008), art. 8 (hereinafter, “United States-Iraq Agreement”).
Available at https://www.dcaf.ch/sites/default/files/publications/documents/US-Iraqi_SOFA-en.pdf
1026 Agreement between the North Atlantic Treaty Organization and the Islamic Republic of Afghanistan
on the Status of NATO Forces and NATO personnel conducting mutually agreed NATO-led activities
in Afghanistan (Kabul, 30 September 2014), International Legal Materials, vol. 54 (2015), pp. 272–
305, art. 5, para. 6, art. 6, para. 1, and art. 7, para. 2.
1027 Agreement between the Member States of the European Union concerning the status of military and
civilian staff seconded to the institutions of the European Union, of the headquarters and forces which
may be made available to the European Union in the context of the preparation and execution of the
tasks referred to in article 17, paragraph 2, of the Treaty on European Union, including exercises, and
of the military and civilian staff of the Member States put at the disposal of the European Union to act
in this context (EU SOFA) (Brussels, 17 November 2003). Available at https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A42003A1231%2801%29 (accessed on 8 July
2019).
1028 Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding
the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany
(Bonn, 3 August 1959), United Nations, Treaty Series, vol. 481, No. 6986, p. 329, amended by the
Agreements of 21 October 1971 and 18 March 1993 (hereinafter, “NATO-Germany Agreement”), art.
54A. See also Agreement between the Parties to the North Atlantic Treaty regarding the Status of
their Forces of 19 June 1951, art. XV.
1029 Memorandum of Special Understandings on Environmental Protection, concluded between the United
States and the Republic of Korea (Seoul, 18 January 2001) (hereinafter, “United States-Republic of
Korea Memorandum”). Available at
www.usfk.mil/Portals/105/Documents/SOFA/A12_MOSU.Environmental.Protection.pdf (accessed
on 8 July 2019).
1030 See, e.g., Memorandum of Understanding between Finland and NATO regarding the provision of
host nation support for the execution of NATO operations/exercises/similar military activity (4
September 2014). Available at www.defmin.fi/files/2898/HNS_MOU_FINLAND.pdf (accessed on 8
July 2019), reference HE 82/2014. According to art. 5.3 (g), sending nations must follow host nation
environmental regulations as well as any host nation’s regulations for the storage, movement, or
disposal of hazardous materials.
1031 Agreement concerning the Status of United States Forces in Australia (Canberra, 9 May 1963),
United Nations, Treaty Series, vol. 469, No. 6784, p. 55 (hereinafter, “United States-Australia
Agreement”), art. 12, para. 7 (e) (i).
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between the United States and the Philippines, which contains provisions seeking to
prevent environmental damage and provides for a review process. 1032
(5) The draft principle also provides a non-exhaustive list of provisions on
environmental protection that may be included in agreements concerning the presence of
military forces in relation to armed conflict. Thus the second sentence of the draft principle
mentions “preventive measures, impact assessments, restoration and clean-up measures” as
examples of what provisions of environmental protection may address. The presence of
military forces may risk having an adverse impact on the environment. 1033 In order to avoid
such adverse impact to the extent possible, measures of a preventive nature are of a great
importance. Impact assessments are necessary to determine the kind of restoration and
clean-up measures that may be needed at the conclusion of the presence of military forces.
(6) The measures referred to in the draft principle may address a variety of relevant
aspects. Some precise examples that deserve specific mention as reflected in treaty practice
are: the recognition of the importance of environmental protection, including the prevention
of pollution from facilities and areas granted to the deploying State;1034 an understanding
that the agreement will be implemented in a manner consistent with protecting the
environment; 1035 cooperation and sharing of information between the host State and the
sending State regarding issues that could affect the health and environment for citizens;1036
measures to prevent environmental damage; 1037 periodic environmental performance
assessments; 1038 review processes; 1039 application of the environmental laws of the host
State 1040 or, similarly, a commitment by the deploying State to respect the host State’s
environmental laws, regulations and standards; 1041 a duty to respect international norms
regarding the sustainable use of natural resources; 1042 the taking of restorative measures
where detrimental effects are unavoidable;1043 and the regulation of environmental damage
claims.1044
(7) The phrase “as appropriate” signals two different considerations. First, agreements
on the presence of military forces in relation to armed conflict are sometimes concluded
under urgent circumstances in which it may not be possible to address issues of
environmental protection. Second, sometimes it may be especially important that the
agreement contains provisions on environmental protection. One such example is provided
by a protected zone at risk of being affected by the presence of military forces. The phrase
“as appropriate” therefore provides nuance to this provision and allows it to capture
different situations.
1032 Agreement between the Philippines and the United States on enhanced defense cooperation
(hereinafter, “United States-Philippines Agreement”) (Quezon City, 28 April 2014). Available at
www.officialgazette.gov.ph/2014/04/29/document-enhanced-defense-cooperation-agreement/
1033 See e.g. D.L. Shelton and I. Cutting, “If you break it, do you own it?”, Journal of International
Humanitarian Legal Studies, vol. 6 (2015), pp. 201–246, at pp. 210–211, and J. Taylor, “Environment
and security conflicts: The U.S. Military in Okinawa”, Geographical Bulletin, vol. 48 (2007), pp. 3–
13, at pp. 6–7.
1034 See United States-Republic of Korea Memorandum.
1035 See United States-Iraq Agreement, art. 8.
1036 See United States-Republic of Korea Memorandum.
1037 See United States-Philippines Agreement, art. IX, para. 3, and NATO-Germany Agreement, art. 54A.
1038 These assessments could identify and evaluate the environmental aspects of the operation and can be
accompanied by a commitment to plan, program and budget for these requirements accordingly, as in
done the United States-Republic of Korea Memorandum.
1039 See United States-Philippines Agreement, art. IX, para. 2.
1040 See NATO-Germany Agreement, art. 54A, and United States-Australia Agreement, art. 12, para. 7 (e)
(i).
1041 See United States-Iraq agreement, art. 8.
1042 As is done in art. 9 of the Concordia status-of-forces agreement.
1043 See NATO-Germany Agreement, art. 54A.
1044 NATO-Germany Agreement, art. 41, and United States-Australia Agreement, art. 12, para. 7 (e) (i).
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Principle 7
Peace operations
States and international organizations involved in peace operations in relation
to armed conflict shall consider the impact of such operations on the environment
and take appropriate measures to prevent, mitigate and remediate the negative
environmental consequences thereof.
Commentary
(1) Peace operations can relate to armed conflict in multiple ways. Previously, many
peace operations were deployed following the end of hostilities and the signing of a peace
agreement.1045 As the High-level Independent Panel on Peace Operations noted, today many
missions operate in environments where no such political agreements exist, or where efforts
to establish one have failed.1046 Moreover, modern United Nations peacekeeping missions
are multidimensional and address a range of peacebuilding activities, from providing secure
environments to monitoring human rights, or rebuilding the capacity of a State. 1047
Mandates also include the protection of civilians. 1048 Draft principle 7 intends to cover all
such peace operations that may relate to multifarious parts or aspects of an armed conflict,
and may vary in temporal nature.
(2) The words “in relation to armed conflict” delineate the scope of the draft principle.
They make clear the connection to armed conflict so as to ensure that the obligations are
not to be interpreted too broadly (i.e. as potentially applying to every action of an
international organization related to the promotion of peace). While the term is to be
understood from a broad perspective in the context of the draft principle, it is recognized
that not all such operations have a direct link to armed conflict.
(3) The present draft principle covers operations where States and international
organizations are involved in peace operations related to armed conflict and where multiple
actors may be present. All these actors will have some effect on the environment. For
example, the Department of Peacekeeping Operations and the Department of Field Support
recognize the potential damage by peacekeeping operations to the local environment. 1049
(4) The environmental impact of a peace operation may stretch from the planning phase
through its operational part, to the post-operation phase. The desired goal is that peace
operations should undertake their activities in such a manner that the impact of their
activities on the environment is minimized. The draft principle thus focuses on activities to
be undertaken in situations where the environment would be negatively affected by a peace
operation. At the same time, it is understood that “appropriate” measures to be taken may
differ in relation to the context of the operation. The relevant considerations may include, in
1045 Report of the High-level Independent Panel on Peace Operations on uniting our strengths for peace:
politics, partnership and people (contained in A/70/95-S/2015/446), para. 23.
1046 Ibid.
1047 V. Holt and G. Taylor, Protecting Civilians in the Context of UN Peacekeeping Operations:
Successes, Setbacks and Remaining Challenges, independent study jointly commissioned by the
Department of Peacekeeping Operations and the Office for the Coordination of Humanitarian Affairs
(United Nations publication, Sales No. E.10.III.M.1), pp. 2–3.
1048 See for example the following mandates of United Nations-led missions found in Security Council
resolutions: United Nations Mission in Sierra Leone (1289 (2000)); United Nations Observer Mission
in the Democratic Republic of the Congo (1291 (2000)); United Nations Mission in Liberia (1509
(2003) and 2215 (2015)); United Nations Operation in Burundi (1545 (2004)); United Nations
Stabilization Mission in Haiti (1542 (2004)); United Nations Operation in Côte d’Ivoire (1528 (2004)
and 2226 (2015)); United Nations Mission in the Sudan (1590 (2005)); African Union-United Nations
Hybrid Operation in Darfur (1769 (2007)); and United Nations Mission in the Central African
Republic and Chad (1861 (2009)).
1049 See United Nations, Department of Peacekeeping Operations and the Department of Field Support,
“DFS Environment Strategy” (2017). Available at
https://peacekeeping.un.org/sites/default/files/171116_dfs_exec_summary_environment_0.pdf
(accessed on 8 July 2019). The strategy is complemented by an environmental policy and
environmental guidelines on environment for United Nations field missions (see footnote 993 above).
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particular, whether such measures relate to the pre-, in-, or post- armed conflict phase, and
what measures are feasible under the circumstances.
(5) The draft principle reflects the stronger recognition on the part of States and
international organizations such as the United Nations, the European Union, 1050 and
NATO,1051 of the environmental impact of peace operations and the need to take necessary
measures to prevent, mitigate and remediate negative impacts. For example, some United
Nations field missions have dedicated environmental units to develop and implement
mission-specific environmental policies and oversee environmental compliance. 1052
(6) There is no clear or definitive definition for “peace operation” or “peacekeeping” in
existing international law. The current draft principle is intended to cover broadly all such
peace operations that relate to armed conflict. The Agenda for Peace highlighted that
“peacemaking” was action to bring hostile parties to agreement, especially through peaceful
means;1053 “peacekeeping” was the deployment of a United Nations presence in the field,
involving military and/or police personnel, and frequently civilians as well; 1054 while
“peacebuilding” was to take the form of cooperative projects in a mutually beneficial
undertaking to enhance the confidence fundamental to peace.1055 The report of the High-
level Independent Panel on Peace Operations includes, for its purposes, “a broad suite of
tools … from special envoys and mediators; political missions, including peacebuilding
missions; regional preventive diplomacy offices; observation missions, including both
ceasefire and electoral missions; to small, technical-specialist missions such as electoral
support missions; multidisciplinary operations”. 1056 The term “peace operations” aims to
cover all these types of operations, and operations broader than United Nations
peacekeeping operations, including peace enforcement operations and operations by
regional organizations. There is no reference in the text to “multilateral” peace operations,
as it was considered unnecessary to address this expressly in the draft principle. The general
understanding of the term “peace operations” is nevertheless that it concerns multilateral
operations.
(7) “Prevent” has been used in acknowledgement of the fact that peace operations are
not isolated in nature, and that in planning their actions, States and international
organizations should plan or aim to minimize negative environmental consequences. While
the prevention obligation requires action to be taken at an early stage, the notion of
“mitigation” refers to reduction of harm that has already occurred. The notion of
“remediation”, in turn, has been used in the same sense as “remedial measures” in draft
principle 2, encompassing any measure that may be taken to restore the environment.
(8) Draft principle 7 is distinct in character from draft principle 6. Peace operations,
unlike agreements concerning the presence of military forces in relation to armed conflict,
do not necessarily involve armed forces or military personnel. Other types of actors such as
civilian personnel and various types of specialists may also be present and covered by such
operations. Draft principle 7 is also intended to be broader and more general in scope, and
to direct focus on the activities of such peace operations.
(9) It is understood that the draft principle also encompasses reviews of concluded
operations that would identify, analyse and evaluate any detrimental effects of those
operations on the environment. This would be a “lessons learned” type of exercise to seek
1050 See, e.g., European Union, “Military Concept on Environmental Protection and Energy Efficiency for
EU-led military operations”, 14 September 2012, document EEAS 01574/12.
1051 See, e.g., NATO, “Joint NATO doctrine for environmental protection during NATO-led military
activities”, 8 March 2018, document NSO(Joint)0335(2018)EP/7141.
1052 “The future of United Nations peace operations: implementation of the recommendations of the High-
level Independent Panel on Peace Operations”, Report of the Secretary-General (A/70/357-
S/2015/682), para. 129.
1053 “An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping” (A/47/277-
S/24111), para. 20. See also the supplement thereto, a position paper by the Secretary-General on the
occasion of the fiftieth anniversary of the United Nations (A/50/60-S/1995/1).
1054 Ibid.
1055 Ibid., para. 56.
1056 A/70/95-S/2015/446, para. 18.
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to avoid or minimize the negative effects of future peace operations on the environment and
ensure that mistakes are not repeated.
Principle 8
Human displacement
States, international organizations and other relevant actors should take
appropriate measures to prevent and mitigate environmental degradation in areas
where persons displaced by armed conflict are located, while providing relief and
assistance for such persons and local communities.
Commentary
(1) Draft principle 8 addresses the inadvertent environmental effects of conflict-related
human displacement. The draft principle recognizes the interconnectedness of providing
relief for those displaced by armed conflict and reducing the impact of displacement on the
environment. The draft principle covers both international and internal displacement.
(2) Population displacement typically follows the outbreak of an armed conflict, giving
rise to significant human suffering as well as environmental damage. 1057 The United
Nations Environment Programme has reported on “the massive movement of refugees and
internally displaced people … across the country” as perhaps “the most immediate
consequence of the conflict [in Liberia]”,1058 as well as of “clear and significant” “links
between displacement and the environment” in the Sudan.1059 In Rwanda, the population
displacement and resettlement related to the 1990–1994 conflict and genocide “had a major
impact on the environment, substantially altering land cover and land use in many parts of
the country”,1060 as well as causing extensive environmental damage in the neighbouring
Democratic Republic of the Congo. 1061
(3) Reference can also be made to a 2014 study on the protection of the environment
during armed conflict, which emphasizes the humanitarian and environmental impacts of
displacement in various conflicts. 1062 The study notes with reference to the Democratic
Republic of the Congo that “massive conflict-induced displacement of civilian populations
associated with protracted conflict may have even more destructive effects [on] the
environment than actual combat operations”. 1063 Non-international armed conflicts, in
particular, have caused important effects in terms of displacement, including the
environmental strain in the affected areas.1064 In a similar manner, research based on the
post-conflict environmental assessments conducted since the 1990s by the United Nations
Environment Programme, the United Nations Development Programme and the World
Bank has identified human displacement as one of the six principal pathways for direct
environmental damage in conflict.1065
1057 See Office of the United Nations High Commissioner for Refugees (UNHCR), UNHCR
Environmental Guidelines (Geneva, 2005). Available at www.refworld.org/docid/4a54bbd10.html
1058 United Nations Environment Programme, Desk Study on the Environment in Liberia (United Nations
Environment Programme, 2004), p. 23. Available at
http://wedocs.unep.org/handle/20.500.11822/8396 (accessed on 8 July 2019).
1059 United Nations Environment Programme, Sudan Post-Conflict Environmental Assessment (Nairobi,
2007), p. 115. Available at http://wedocs.unep.org/handle/20.500.11822/22234 (accessed on 8 July
2019).
1060 United Nations Environment Programme, Rwanda: From Post-Conflict to Environmentally
Sustainable Development (Nairobi, 2011), p. 74. Available at
https://postconflict.unep.ch/publications/UNEP_Rwanda.pdf (accessed on 8 July 2019).
1061 As more than 2 million people moved in and out of the country, up to 800,000 people in camps along
the border to the Democratic Republic of the Congo had to rely on firewood from the nearby Virunga
national park. Ibid., pp. 65–66.
1062 International Law and Policy Institute, Protection of the Natural Environment in Armed Conflict: An
Empirical Study, Report 12/2014 (Oslo, 2014).
1063 Ibid., p. 5.
1064 Ibid., p. 6.
1065 D. Jensen and S. Lonergan, “Natural resources and post-conflict assessment, remediation, restoration
and reconstruction: lessons and emerging issues”, in Jensen and Lonergan (eds.), Assessing and
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(4) As the Office of the United Nations High Commissioner for Refugees (UNHCR) has
pointed out, considerations relating to access to water, the location of refugee camps and
settlements, as well as food assistance by relief and development agencies, “all have a
direct bearing on the environment”. 1066 Uninformed decisions concerning the siting of a
refugee camp in or near a fragile or internationally protected area may result in irreversible
– local and distant – impacts on the environment. Areas of high environmental value suffer
particularly serious impacts that may be related to the area’s biological diversity, its
function as a haven for endangered species or for the ecosystem services these provide. 1067
The United Nations Environment Programme 1068 and the United Nations Environmental
Assembly have similarly drawn attention to the environmental impact of displacement. 1069
(5) The African Union Convention for the Protection of Internally Displaced Persons in
Africa, also known as the Kampala Convention, stipulates that State Parties shall “[t]ake
necessary measures to safeguard against environmental degradation in areas where
internally displaced persons are located, either within the jurisdiction of the State Parties, or
in areas under their effective control”. 1070 The Kampala Convention applies to internal
displacement “in particular as a result of or in order to avoid the effects of armed conflict,
situation of generalized violence, violations of human rights or natural or human-made
disasters”.1071
(6) Other recent developments related to displacement and the environment include the
Task Force on Displacement, which was set up at the Conference of the Parties to the
United Nations Framework Convention on Climate Change, and mandated to produce
recommendations on integrated approaches to avert, minimize and address displacement
related to the adverse impacts of climate change. 1072 In 2015, States adopted the Sendai
Framework for Disaster Risk Reduction, which calls, inter alia, for the promotion of
transboundary cooperation to build resilience and reduce the risk of disasters and the risk of
displacement.1073 The more recent Global Compact for Safe, Orderly and Regular Migration
likewise includes a section on the relationship between migration and environmental
degradation. 1074 Although these developments focus on the environmental reasons for –
rather than the environmental effects of – displacement, they are indicative of a recognition
among States of the nexus between environment and displacement, and the need to foster
cooperation and regulation in that field.
Restoring Natural Resources in Post-Conflict Peacebuilding (Abingdon, Earthscan from Routledge,

2012), pp. 411–450, p. 414.
1066 UNHCR Environmental Guidelines (footnote 1057 above), p. 5. See also G. Lahn and O. Grafham,
“Heat, light and power for refugees: saving lives, reducing costs” (Chatham House, 2015).
1067 Ibid., p. 7.
1068 See United Nations Environment Programme, Rwanda: From Post-Conflict to Environmentally
Sustainable Development (footnote 1060 above). See also United Nations Environment Programme,
Sudan Post-Conflict Environmental Assessment (footnote 1059 above).
1069 See United Nations Environmental Assembly resolution 2/15 of 27 May 2016 on “Protection of the
environment in areas affected by armed conflict” (UNEP/EA.2/Res.15), para. 1.
1070 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa
(Kampala, 23 October 2009), art. 9, para. 2 (j). Available at https://au.int/en/treaties/african-union-
convention-protection-and-assistance-internally-displaced-persons-africa. The Convention entered
into force on 6 December 2012.
1071 Ibid., art. 1 (k).
1072 Conference of the Parties of the United Nations Framework Convention on Climate Change, Decision
1/CP.21 “Adoption of the Paris Agreement”, para. 49, in Report of the Conference of the Parties on
its twenty-first session, held in Paris from 30 November to 13 December 2015, Addendum
(FCCC/CP/2015/10/Add.1). See also the Nansen Initiative, Agenda for the Protection of Cross-
Border Displaced Persons in the Context of Disasters and Climate Change, vol. 1 (2015). Available
at https://nanseninitiative.org/wp-content/uploads/2015/02/PROTECTION-AGENDA-VOLUME-
1.pdf (accessed on 8 July 2019).
1073 Sendai Framework for Disaster Risk Reduction 2015–2030, para. 28 (adopted at the Third United
Nations World Conference on Disaster Risk Reduction and endorsed by the General Assembly in
resolution 69/283 of 3 June 2015). Available at www.unisdr.org/we/inform/publications/43291
1074 General Assembly resolution 73/195 of 19 December 2018, annex.
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(7) Draft principle 8 addresses States, international organizations and other relevant
actors. International organizations involved in the protection of displaced people, and the
environment, in conflict-affected areas include UNHCR, the United Nations Environment
Programme and other United Nations agencies, as well as the European Union, the African
Union, and NATO. “Other relevant actors” referred to in the draft principle may include,
inter alia, international donors, ICRC, and international non-governmental organizations.
All these actors are to take appropriate measures to prevent and mitigate environmental
degradation in areas where persons displaced by armed conflict are located, while providing
relief and assistance for such persons and local communities. The terms “relief and
assistance” refer generally to the kind of assistance involved where human displacement
occurs. These terms are not intended to convey any different meaning from how these terms
are understood in humanitarian work.
(8) Draft principle 8 includes a reference to relief for displaced persons and local
communities. The UNHCR Environmental Guidelines note in this regard that the “state of
the environment … will have a direct bearing on the welfare and well-being of people
living in that vicinity, whether refugees, returnees or local communities”. 1075 Providing
livelihoods for displaced people is intimately connected to preserving and protecting the
environment in which local and host communities are located. Better environmental
governance increases resilience for host communities, displaced persons, and the
environment as such.
(9) Similarly, the International Organization for Migration has highlighted the
importance of “reducing the vulnerability of displaced persons as well as their impacts on
the receiving society and ecosystem” as an emerging issue that requires addressing, 1076 and
has developed an Atlas of Environmental Migration. 1077 The World Bank, furthermore, has
drawn attention to the issue in its 2009 report “Forced displacement – The development
challenge”.1078 The report highlights the development impacts that displacement can have
on environmental sustainability and development, including through environmental
degradation. 1079 Reference can also be made to the Draft International Covenant on
Environment and Development of the International Union for Conservation of Nature,
which includes a paragraph on displacement reading as follows: “Parties shall take all
necessary measures to provide relief for those displaced by armed conflict, including
internally displaced persons, with due regard to environmental obligations”.1080
(10) The reference to “providing relief” to persons displaced by conflict and to local
communities in draft principle 8 should also be read in the light of the Commission’s
previous work on the topic “Protection of persons in the event of disasters”. 1081 As
explained in the relevant commentary, the draft articles would apply in situations of
displacement that, because of their magnitude, can be viewed as “complex emergencies”,
including where a disaster occurs in an area where there is an armed conflict. 1082
1075 UNHCR Environmental Guidelines (footnote 1057 above), p. 5.

1076 International Organization for Migration, Compendium of Activities in Disaster Risk Reduction and
Resilience (Geneva, 2013), as referenced in IOM Outlook on Migration, Environment and Climate
Change (Geneva, 2014), p. 82.
1077 D. Ionesco, D. Mokhnacheva, F. Gemenne, The Atlas of Environmental Migration (Abingdon,
Routledge 2019).
1078
A. Christensen and N. Harild, “Forced displacement – The development challenge” (Social
Development Department, The World Bank Group, Washington, D.C., 2009).
1079 Ibid., pp. 4 and 11.
1080 International Union for Conservation of Nature, Draft International Covenant on Environment and
Development (2015), art. 40, on military and hostile activities (formerly art. 38). Available from
www.iucn.org.
1081 Draft articles on the protection of persons in the event of disasters, Official Records of the General
Assembly, Seventy-first session, Supplement No. 10 (A/71/10), paras. 48–49.
1082 Para. (9) of the commentary to draft art. 18, para. 2, ibid., at p. 73. See also draft art. 3 (a): “disaster”
was defined, for the purposes of the draft articles, as “a calamitous event or series of events resulting
in widespread loss of life, great human suffering and distress, mass displacement, or large-scale
material or environmental damage, thereby seriously disrupting the functioning of society”. Ibid., at p.
14.
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(11) Draft principle 8 is located in Part Two given that conflict-related human
displacement is a phenomenon that may have to be addressed both during and after an
armed conflict.
Principle 9
State responsibility
1. An internationally wrongful act of a State, in relation to an armed conflict,
that causes damage to the environment entails the international responsibility of that
State, which is under an obligation to make full reparation for such damage,
including damage to the environment in and of itself.
2. The present draft principles are without prejudice to the rules on the
responsibility of States for internationally wrongful acts.
Commentary
(1) Draft principle 9 concerns the international responsibility of States for damage
caused to the environment in relation to armed conflicts. Paragraph 1 restates the general
rule that every internationally wrongful act of a State entails its international responsibility
and gives rise to an obligation to make full reparation for the damage that may be caused by
the act. The paragraph furthermore reaffirms the applicability of this principle to
internationally wrongful acts in relation to armed conflict as well as to environmental
damage, including damage caused to the environment in and of itself.
(2) Paragraph 1 has been modelled on articles 1 and 31, paragraph 1, of the articles on
responsibility of States for internationally wrongful acts. Although no reference is made to
other articles, the draft principle shall be applied in accordance with the rules on the
responsibility of States for internationally wrongful acts, including those specifying the
conditions for internationally wrongful acts. This means, inter alia, that conduct amounting
to an internationally wrongful act may consist of action or omission. Furthermore, for the
international responsibility of a State to arise in relation to armed conflict, the act or
omission must be attributable to that State and amount to a violation of its international
obligation.1083
(3) An act or omission attributable to a State that causes harm to the environment in
relation to an armed conflict is wrongful if two conditions are met. First, the act or omission
in question violates one or more of the substantive rules of the law of armed conflict
providing protection to the environment,1084 or other rules of international law applicable in
the situation, including but not limited to the law of the use of force (jus ad bellum) and
international human rights law. 1085 Second, such a rule, or rules, are binding on the State.
The scope of the responsibility of the State as well as the threshold for compensable
environmental harm depend on the applicable primary rules.
(4) The rules of the law of armed conflict concerning the responsibility of States are
clear and well-established. As lex specialis in armed conflict, the law of armed conflict
extends the responsibility of a State party to an armed conflict to “all acts committed by
1083 Art. 1 of the articles on responsibility of States for internationally wrongful acts (hereinafter, “articles
on State responsibility”): “Every internationally wrongful act of a State entails the international
responsibility of that State”, Yearbook … 2001, vol. II (Part Two) and corrigendum, paras. 76–77, pp.
32–34.
1084 This includes articles 35, paragraph 3, and 55 of Additional Protocol I and their customary
counterparts, the principles of distinction, proportionality, military necessity and precautions in
attack, as well as other rules concerning the conduct of hostilities, and the law of occupation, also
reflected in the present draft principles.
1085 Furthermore, to the extent that international criminal law provides protection to the environment in
armed conflict, the relevant international crimes may trigger State responsibility. See art. 1 of the
articles on State responsibility”, Yearbook … 2001, vol. II (Part Two) and corrigendum, paras. 76–77,
and para. (3) of the commentary to art. 58, ibid., at p. 142. See also Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 116, para. 173.
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persons forming part of its armed forces”, including their private acts.1086 As far as the law
of the use of force is concerned, a violation of Article 2, paragraph 4, of the Charter of the
United Nations entails responsibility for damage caused by that violation, whether or not
resulting from a violation of the law of armed conflict. 1087 A further basis for responsibility
for conflict-related environmental harm – in particular but not exclusively – in situations of
occupation may be found in international human rights obligations. Degradation of
environmental conditions may violate a number of specific human rights, including the
right to life, the right to health and the right to food, as has been established in the
jurisprudence of regional human rights courts and human rights treaty bodies. 1088
(5) Environmental damage caused in armed conflict was first recognized as
compensable under international law by the United Nations Compensation Commission
(UNCC), which was established by the Security Council in 1991 to deal with claims
concerning the Iraqi invasion and occupation of Kuwait. 1089 The UNCC jurisdiction was
based on Security Council resolution 687 (1991), which reaffirmed the responsibility of
Iraq under international law “for any direct loss or damage – including environmental
damage and the depletion of natural resources, or injury to foreign Governments, nationals
and corporations as a result of its unlawful invasion and occupation of Kuwait”.1090
(6) The experience of UNCC in dealing with environmental claims has been
groundbreaking in the area of reparations for wartime environmental harm, and an
important point of reference beyond armed conflicts. 1091 One example is related to how
environmental damage can be quantified. UNCC did not attempt to define the concepts of
“direct environmental damage” and “depletion of natural resources” in Security Council
1086 Convention (IV) respecting the laws and customs of war on land (Hague Convention IV) (The Hague,
18 October 1907), J.B. Scott (ed.), The Hague Conventions and Declarations of 1899 and 1907, 3rd
ed. (New York, Oxford University Press, 1915), p. 100, art. 3: “[a] belligerent party which violates
the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It
shall be responsible for all acts committed by persons forming part of its armed forces.” See also
Additional Protocol I, art. 91. See also Henckaerts and Doswald-Beck, Customary International
Humanitarian Law … (footnote 969 above), rule 150, p. 537: “A State responsible for violations of
international humanitarian law is required to make full reparation for the loss or injury caused”. This
special rule also applies to private acts of members of armed forces.
1087 See Eritrea-Ethiopia Claims Commission, Decision No. 7, Guidance Regarding Jus ad Bellum
Liability, 26 UNRIAA (2009), p. 631, para. 13; ICRC commentary (1987) to Additional Protocol I,
art. 91, para. 3650. See also M. Sassòli, “State responsibility for violations of international
humanitarian law”, International Review of the Red Cross, vol. 84 (2002), pp. 401–434; C.
Greenwood, “State responsibility and civil liability for environmental damage caused by military
operations”, in R.J. Grunawalt, J.E. King and R.S. McClain (eds.), “Protection of the environment
during armed conflict”, International Law Studies, vol. 69 (1996), pp. 397–415, at pp. 405–406.
1088 See Yanomami v. Brazil, Case No. 12/85, Inter-American Commission on Human Rights, resolution
No. 12/85, Case No. 7615, 5 March 1985; Öneryildiz v. Turkey, Application No. 48939/99, Judgment,
European Court of Human Rights, 30 November 2004, ECHR 2004-XII; Powell and Rayner v. the
United Kingdom, Application No. 9310/81, Judgment, European Court of Human Rights, 21 February
1990; López Ostra v. Spain, Application No. 16798/90, Judgment, European Court of Human Rights,
9 December 1994; Guerra and Others v. Italy, Application No. 116/1996/735/532, Judgment,
European Court of Human Rights, 19 February 1998; Fadeyeva v. Russia, Application No. 55723/00,
Judgment, European Court of Human Rights, 9 June 2005. See also R. Pavoni, “Environmental
jurisprudence of the European and Inter-American Courts of Human Rights: comparative insights”, in
B. Boer, Environmental Law Dimensions of Human Rights (Oxford, Oxford University Press, 2015),
pp. 69–106. See also “Mapping human rights obligations relating to the enjoyment of a safe, clean,
healthy and sustainable environment”, individual report of the General Assembly and the Human
Rights Council, including the universal periodic review process, Report No. 6, December 2013, part
III C.
1089 Security Council resolution 692 (1991) of 20 May 1991.
1090 Security Council resolution 687 (1991) of 3 April 1991, para. 16.
1091 D.D. Caron, “The profound significance of the UNCC for the environment”, in C.R. Payne and P.H.
Sand (eds.), Gulf War Reparations and the UN Compensation Commission Environmental Liability
(Oxford, Oxford University Press, 2011), pp. 265–275; P. Gautier, “Environmental damage and the
United Nations Claims Commission: new directions for future international environmental cases?”, in
T.M. Ndiaye and R. Wolfrum (eds.), Law of the Sea, Environmental Law, and Settlement of Disputes.
Liber Amicorum Judge Thomas A. Mensah (Leiden, Martinus Nijhoff, 2007), pp. 177–214; P.H.
Sand, “Compensation for environmental damage from the 1991 Gulf War”, Environmental Policy and
Law, vol. 35 (2005), pp. 244–249.
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resolution 687 (1991) but put forward a non-exhaustive list of compensable losses or
expenses resulting from:
(a) Abatement and prevention of environmental damage, including expenses
directly relating to fighting oil fires and stemming from the flow of oil in coastal and
international waters;
(b) Reasonable measures already taken to clean and restore the environment or
future measures which can be documented as reasonably necessary to clean and restore the
environment;
(c) Reasonable monitoring and assessment of the environmental damage for the
purposes of evaluating and abating the harm and restoring the environment;
(d) Reasonable monitoring of public health and performing medical screenings
for the purposes of investigation and combating increased health risks as a result of the
environmental damage; and
(e) Depletion of or damage to natural resources. 1092
(7) Paragraph 1 of draft principle 9 reaffirms the compensability under international law
of damage to the environment per se. This statement is in line with the Commission’s
earlier work on State responsibility1093 as well as on the allocation of loss in the case of
transboundary harm arising out of hazardous activities. 1094 Reference can also be made to
the statement of UNCC that “there is no justification for the contention that general
international law precludes compensation for pure environmental damage”.1095 Paragraph 1
of the draft principle is furthermore inspired by the judgment of the International Court of
Justice in the Certain Activities (Costa Rica v. Nicaragua) case, in which the Court found
that “it is consistent with the principles of international law governing the consequences of
internationally wrongful acts, including the principle of full reparation, to hold that
compensation is due for damage caused to the environment, in and of itself”.1096
(8) The notion of “the environment in and of itself” has been explained to refer to “pure
environmental damage”.1097 The latter term was used by UNCC in the above citation. Both
concepts, as well as the notion of “harm to the environment per se” that the Commission
used in the principles on the allocation of loss in the case of transboundary harm arising out
of hazardous activities have the same meaning. They refer to harm to the environment that
does not, or not only, cause material damage but leads to the impairment or loss of the
1092 Decision taken by the Governing Council of the United Nations Compensation Commission during its
third session, at the 18th meeting, held on 28 November 1991, as revised at the 24th meeting held on
16 March 1992 (S/AC.26/1991/7/Rev.1), para. 35.
1093 Para. (15) of the commentary to art. 36 of the articles on State responsibility, Yearbook ... 2001, vol.
II (Part Two) and corrigendum, paras. 76–77, at p. 101: “environmental damage will often extend
beyond that which can be readily quantified in terms of clean-up costs or property devaluation.
Damage to such environmental values (biodiversity, amenity, etc. – sometimes referred to as ‘non-use
values’) is, as a matter of principle, no less real and compensable than damage to property, though it
may be difficult to quantify”.
1094 Para. (6) of the commentary to principle 3 of the principles on the allocation of loss in the case of
transboundary harm arising out of hazardous activities, Yearbook ... 2006, vol. II (Part Two), paras.
66–67, at p. 73: “it is important to emphasize that damage to environment per se could constitute
damage subject to prompt and adequate compensation”.
1095 United Nations Compensation Commission, Governing Council, Report and recommendations made
by the Panel of Commissioners concerning the fifth instalment of “F4” claims (S/AC.26/2005/10),
para. 58.
1096 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Compensation Owed by the Republic of Nicaragua to the Republic of Costa Rica, International Court
of Justice, 2 February 2018, General List No. 150, para. 41.
1097 Ibid., Separate Opinion of Judge Donoghue, para. 3: “Damage to the environment can include not
only damage to physical goods, such as plants and minerals, but also to the ‘services’ that they
provide to other natural resources (for example, habitat) and to society. Reparation is due for such
damage, if established, even though the damaged goods and services were not being traded in a
market or otherwise placed in economic use. Costa Rica is therefore entitled to seek compensation for
‘pure’ environmental damage, which the Court calls ‘damage caused to the environment, in and of
itself’.”
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ability of the environment to provide ecosystem services such as sequestration of carbon

from the atmosphere, air quality services and biodiversity. 1098
(9) Paragraph 2 of draft principle 9 clarifies that the draft principles are without
prejudice to the rules on the responsibility of States for internationally wrongful acts.
(10) Draft principle 9 is located in Part Two containing draft principles related to the
phase before armed conflict, and draft principles that are applicable to more than one phase,
including provisions of general applicability. Draft principle 9 belongs to the latter category.
Principle 10
Corporate due diligence
territories exercise due diligence with respect to the protection of the environment,
including in relation to human health, when acting in an area of armed conflict or in
a post-armed conflict situation. Such measures include those aimed at ensuring that
natural resources are purchased or obtained in an environmentally sustainable
manner.
Commentary
(1) Draft principle 10 recommends that States take appropriate legislative and other
measures to ensure that corporations operating in or from their territories exercise due
diligence with respect to the protection of the environment, including in relation to human
health, in areas of armed conflict or in post-conflict situations. The second sentence of draft
principle 10 specifies that such measures include those aimed at ensuring that natural
resources are purchased or obtained in an environmentally sustainable manner. The draft
principle does not reflect a generally binding legal obligation and has been phrased
accordingly as a recommendation.
(2) The concept of “corporate due diligence” refers to a wide network of normative
frameworks that seek to promote responsible business practices, including respect for
human rights and international environmental standards. Such frameworks include non-
binding guidelines as well as binding regulation at the national or regional level, and extend
to codes of conduct created by the businesses themselves. Draft principle 10 builds on and
seeks to complement the existing regulatory frameworks which do not always display a
clear environmental focus, or a focus on areas of armed conflict and post-armed conflict
situations.
(3) The United Nations Guiding Principles on Business and Human Rights 1099 are based
on the obligations of States to respect, protect and fulfil human rights and fundamental
freedoms, and their implementation largely relies on State action. 1100 The Guiding
Principles propose a number of measures that States can take to ensure that business
enterprises operating in conflict-affected areas are not involved with gross human rights
abuses.1101 This includes “[e]nsuring that their current policies, legislation, regulations and
1098
See J.B. Ruhl and J. Salzman, “The law and policy beginnings of ecosystem services”, Journal of
Land Use and Environmental Law, vol. 22 (2007), pp. 157 –172. See also Certain Activities Carried
Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Owed (footnote 1096
above), para. 75.
1099 Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect,
Respect and Remedy” Framework (A/HRC/17/31, annex). The Human Rights Council endorsed the
Guiding Principles in its resolution 17/4 of 16 June 2011.
1100 So far, 21 States have published national action plans on the implementation of the Guiding
Principles, 23 are in the process of preparing such a plan or have committed to preparing one. In nine
other States, either the national human rights institute or civil society has taken steps towards
preparing a national action plan. Information available at
www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx (accessed on 8 July 2019).
1101 Guiding Principles on Business and Human Rights, principle 7.
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enforcement measures are effective in addressing the risk of business involvement in gross
human rights abuses”.1102
(4) The Organization for Economic Cooperation and Development (OECD) Guidelines
for Multinational Enterprises1103 expressly address environmental concerns, recommending
that enterprises “take due account of the need to protect the environment, public health and
safety, and generally to conduct their activities in a manner contributing to the wider goal
of sustainable development”. 1104 The OECD Due Diligence Guidance for Responsible
Supply Chains of Minerals from Conflict-Affected and High-Risk Areas of 2016,1105 inter
alia, encourage companies operating in or sourcing minerals from conflict-affected and
high-risk areas to assess and avoid the risk of being involved in serious human rights
violations. 1106 Regulatory frameworks more specifically related to natural resources and
areas of armed conflict also include the Certification Mechanism of the International
Conference of the Great Lakes Region1107 and the Chinese Due Diligence Guidelines for
Responsible Mineral Supply Chains.1108 Due diligence frameworks have also been created
for specific businesses, including extractive industries, in cooperation between States,
businesses and civil society.1109
(5) In some cases, such initiatives have provided the impetus for States to incorporate
similar standards into their national legislation, making them binding on corporations
subject to their jurisdiction that operate in or deal with conflict-affected areas. Legally
binding instruments have also been developed at the regional level. Examples of such
legally binding frameworks, either at the regional or national level, include the US Dodd-
Frank Act of 2010,1110 The Lusaka Protocol of the International Conference on the Great
Lakes Region, 1111 the regulation of the European Union on conflict minerals 1112 and the
European Union timber regulation.1113
1102 Ibid., principle 7, para. (d).

1103 OECD, OECD Guidelines for Multinational Enterprises. The updated guidelines and the related
decision were adopted by the 42 Governments adhering thereto on 25 May 2011. Available at
www.oecd.org/corporate/mne (accessed on 8 July 2019).
1104 Ibid., chap. VI “Environment”, p. 42.
1105 OECD, OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-
Affected and High-Risk Areas, 3rd ed. (Paris, 2016). Available at
www.oecd.org/daf/inv/mne/mining.htm (accessed on 8 July 2019).
1106 Ibid., p. 16.
1107 See www.icglr-rinr.org/index.php/en/certification (accessed on 8 July 2019).
1108 China, Chamber of Commerce of Metals, Minerals and Chemicals Importers and Exporters, Chinese
Due Diligence Guidelines for Responsible Mineral Supply Chains. The guidelines apply to all
Chinese companies extracting and/or using mineral resources and their related products and come into
play at any point in the supply chain of minerals. Available at http://mneguidelines.oecd.org/chinese-
due-diligence-guidelines-for-responsible-mineral-supply-chains.htm (accessed on 8 July 2019).
1109 For Extractive Industries Transparency Initiative, which aims at increasing transparency in the
management of oil, gas, and mining revenues, see http://eiti.org; for Voluntary Principles on Security
and Human Rights for extractive industry companies, see at www.voluntaryprinciples.org; for the
Equator Principles of the financial industry for determining, assessing and managing social and
environmental risk in project financing, see www.equator-principles.com.
1110 An Act to promote the financial stability of the United States by improving accountability and
transparency in the financial system, to end “too big to fail”, to protect the American taxpayer by
ending bailouts, to protect consumers from abusive financial services practices, and for other
purposes (Dodd–Frank Act), 11 July, 2010, Pub.L.111–203, 124 Stat. 1376–2223. Section 1502 of the
Dodd-Frank Act on conflict minerals originating from the Democratic Republic of the Congo requires
that companies registered in the United States exercise due diligence on certain minerals originating
from the Democratic Republic of the Congo.
1111 Protocol against the Illegal Exploitation of Natural Resources of the International Conference on the
Great Lakes Region (Nairobi, 30 November 2006), available at
https://ungreatlakes.unmissions.org/sites/default/files/icglr_protocol_against_the_illegal_exploitation
_of_natural_resourcess.pdf (accessed on 8 July 2019). Art. 17, para. 1, requires States parties to
establish the liability of legal entities for participating in the illegal exploitation of natural resources.
1112 Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying
down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their
ores, and gold originating from conflict-affected and high-risk areas, Official Journal of the European
Union, L130, p. 1 (European Union conflict minerals regulation). The regulation will enter into force
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(6) The language of draft principle 10 builds on the existing frameworks of corporate
due diligence, inter alia regarding how natural resources are purchased and obtained. At the
same time, in accordance with the scope of the topic, it specifically focuses on the
protection of the environment in areas of armed conflict as well as in post-armed conflict
situations. Reference can in this regard be made to the concept of “conflict-affected and
high-risk areas” used in the OECD Due Diligence Guidance for Responsible Supply Chains
of Minerals, as well as in the conflict minerals regulation of the European Union. The
OECD Due Diligence Guidance defines this concept in terms of “the presence of armed
conflict, widespread violence or other risks of harm to people”.1114 The European Union
conflict minerals regulation gives the following definition: “areas in a state of armed
conflict or fragile post-conflict as well as areas witnessing weak or non-existent governance
and security, such as failed states, and widespread and systematic violations of international
law, including human rights abuses”.1115 The relevance of the notion of “conflict-affected
and high-risk areas” for draft principle 10 was acknowledged. The Commission
nevertheless chose to refer to “area of armed conflict” and “post-armed conflict situation”
as these terms are more closely aligned to the terminology used in the draft principles. They
should be understood in the sense of the concepts of “armed conflict”1116 and “post-armed
conflict”1117 as used in the draft principles.
(7) The first sentence of draft principle 10 refers to “legislative and other measures”. It
is usual that international instruments relying on implementation at the national level refer
explicitly to legislative measures,1118 and seeking to ensure corporate due diligence would
usually require legislative action. “[O]ther measures” may be wide ranging and include,
inter alia, judicial and administrative measures. A further qualification, “appropriate”,
indicates that the measures taken at the national level may differ from one country to
on 1 January 2021. The regulation lays down supply chain due diligence obligations for European
Union importers of certain minerals originating from conflict-affected and high-risk areas.
1113 Regulation (EU) No. 995/2010 of the European Parliament and of the Council of 20 October 2010
laying down obligations of operators who place timber and timber products on the market (12
November 2010), Official Journal of the European Union, L 295, p. 23. The timber regulation
requires that operators exercise due diligence so as to minimize the risk of placing illegally harvested
timber, or timber products containing illegally harvested timber, on the European Union market.
1114 OECD Due Diligence Guidance … (footnote 1105 above), p. 13. The Guidance explains that “Armed
conflict may take a variety of forms such as a conflict of international or non-international character,
which may involve two or more States, or may consist of wars of liberation, or insurgencies, civil
wars, etc. High-risk areas may include areas of political instability or repression, institutional
weakness, insecurity, collapse of civil infrastructure and widespread violence. Such areas are often
characterised by widespread human rights abuses and violations of national or international law.”
1115 European Union conflict minerals regulation (footnote 1112 above), art. 2, para. (f).
1116 See para. (7) of the commentary to draft principle 13 below.
1117 More frequently referred to as “after an armed conflict”. This phrase has not been defined. It is
nevertheless clear that it cannot, for the purpose of the protection of the environment, be limited to the
immediate aftermath of an armed conflict.
1118 See, e.g. International Covenant on Economic, Social and Cultural Rights (New York, 19 December,
1966), United Nations, Treaty Series, vol. 993, No. 14531, p. 3, art .2, para. 1, which refers explicitly
to legislative measures, similarly Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence (Istanbul, 11 May 2011), Council of Europe, Treaty
Series, No. 210, art. 5, para. 2. See also International Convention for the Suppression of the Financing
of Terrorism (New York, 9 December 1999), United Nations, Treaty Series, vol. 2178, No. 38349, p.
197, art. 18, as well as United Nations Convention against Transnational Organized Crime (New
York, 15 November 2000), ibid., vol. 2225, No. 39574, p. 209, art. 7, referring to “comprehensive
domestic regulatory and supervisory regime… within [a State’s] competence”. Reference can in this
regard also be made to the International Law Association’s work on due diligence, which expresses a
clear preference for legislative measures as means to implement the human rights obligation to
protect, and points out, with regard to the International Tribunal for the Law of the Sea Seabed
advisory opinion (Responsibilities and Obligations of States Sponsoring Persons and Entities with
Respect to Activities in the Area, Seabed Dispute Chamber, International Tribunal of the Law of the
Sea, Case No. 17, 1 February 2011), that States’ due diligence obligations are fulfilled and proven if
the State has put in place legislative and regulatory framework. ILA Study Group on Due Diligence in
International Law, First Report, 7 March 2014, pp. 17 and 26. Available at www.ila-
hq.org/index.php/study-groups (accessed on 8 July 2019).
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another. Such measures should in any event be aimed at ensuring that corporations and
other business enterprises operating in or from the country in question exercise due
diligence with respect to the protection of the environment when acting in an area of armed
conflict or in a post-armed conflict situation.
(8) There is no uniform practice on how to refer to the business entities for which the
due diligence guidance is addressed. The different regulatory frameworks use terms ranging
from “transnational corporations” 1119 to “multinational enterprises”, 1120 “business
enterprises” 1121 or “companies”. 1122 The reference to “corporations and other business
enterprises” was chosen for the draft principle as a broad notion that would not be
unnecessarily limitative. How this notion is interpreted would primarily depend on the
national law of each State. There are similarly several ways to describe the connection
between a corporation or other business enterprise and a State. 1123 The phrase “operating in
or from their territories” is the standard phrase in the OECD Due Diligence Guidance. 1124
(9) The notion of “due diligence” as used in the draft principle refers to due diligence
expected of corporations and other business entities when acting in areas of armed conflict
or in post-armed conflict situations. This notion is not used differently from the due
diligence frameworks referred to in paragraphs (2) to (4) above. As for its content,
reference can be made to the parameters of “human rights due diligence” as explained in
the Guiding Principles on Business and Human Rights:
Human rights due diligence:
(a) Should cover adverse human rights impacts that the business
enterprise may cause or contribute to through its own activities, or which may be
directly linked to its operations, products or services by its business relationships;
(b) Will vary in complexity with the size of the business enterprise, the
risk of severe human rights impacts, and the nature and context of its operations;
(c) Should be ongoing, recognizing that the human rights risks may
change over time as the business enterprise’s operations and operating context
evolve.1125
The European Union conflict minerals regulation defines supply chain due diligence in
similar terms as “an ongoing, proactive and reactive process through which economic
operators monitor and administer their purchases and sales with a view to ensuring that they
do not contribute to conflict or the adverse impacts thereof”.1126 Furthermore, the OECD
Guidelines for Multinational Enterprises and the related documentation include detailed
guidance on international environmental standards.1127
1119 Human Rights Council resolution 26/9 of 26 June 2014 setting up a Working Group to elaborate a
legally binding instrument on transnational corporations and other business entities.
1120 OECD Guidelines for Multinational Enterprises (footnote 1103 above).
1121 Guiding Principles on Business and Human Rights.
1122 Chinese Due Diligence Guidelines for Responsible Mineral Supply Chains (footnote 1108 above).
1123 For instance, the Guiding Principles on Business and Human Rights use the notion “business
enterprises domiciled in their territory and/or jurisdiction”, see e.g. principle 2.
1124 OECD Due Diligence Guidance (footnote 1105 above), p. 9; and Recommendation of the Council on
the OECD Due Diligence Guidance for Responsible Business Conduct (2018), pp. 92–94, available at
https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0443 (accessed on 8 July 2019). See
also OECD, Implementing the OECD Due Diligence Guidance, Executive Summary (Paris, 28 May
2018), p. 6, para. 16. Available at https://tuac.org/wp-
content/uploads/2018/05/140PS_E_10_duediligence.pdf (accessed on 8 July 2019).
1125 Guiding Principles on Business and Human Rights, principle 17.
1126 See European Union conflict minerals regulation (footnote 1112 above), eleventh preambular para.
See also OECD Due Diligence Guidance … (footnote 1105 above), p. 13: “Due diligence is an on-
going, proactive and reactive process through which companies can ensure that they respect human
rights and do not contribute to conflict”.
1127 OECD Guidelines for Multinational Enterprises (footnote 1103 above), part I, chap. VI
“Environment”, pp. 42–46. See also OECD, “Environment and the OECD Guidelines for
Multinational Enterprises. Corporate tools and approaches”. Available at
https://oecd.org/env/34992954.pdf (accessed on 8 July 2019).
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(10) The phrase “including in relation to human health” underlines the close link between
environmental degradation and human health as affirmed by international environmental
instruments,1128 regional treaties and case law,1129 the work of the Committee on Economic,
Social and Cultural Rights,1130 as well as of the Special Rapporteur on human rights and the
environment.1131 The phrase thus refers to “human health” in the context of the protection of
the environment.
(11) According to the second sentence of draft principle 10, the measures to be taken
include those aimed at ensuring that natural resources are purchased or obtained in an
environmentally sustainable manner. The requirement of responsible sourcing is included
in a number of documents referred to above. The OECD Guidance, for instance,
recommends that States promote the observance of the Guidance by companies operating
from their territories and sourcing minerals from conflict-affected and high-risk areas “with
the aim of ensuring that they respect human rights, avoid contributing to conflict and
successfully contribute to sustainable, equitable and effective development”. 1132 The
Chinese guidelines require that companies identify and assess the risks of contributing to
1128
For instance, the following instruments refer to “human health and the environment”: Convention on
Long-Range Transboundary Air Pollution (Geneva, 13 November 1979), United Nations, Treaty
Series, vol. 1302, No. 21623, p. 217, art. 7 (d); Vienna Convention for the Protection of the Ozone
Layer (Vienna, 22 March 1985), ibid., vol. 1513, No. 26164, p. 293, preamble and art. 2, para. 2 (a);
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their
Disposal (Basel, 22 March 1989), ibid., vol. 1673, No. 28911, p. 57, preamble, art. 2, paras. 8 and 9,
art. 4, paras. 2 (c), (d) and (f) and para. 11, art. 10, para. 2 (b), art. 13, paras. 1 and 3 (d), art. 15, para.
5 (a); Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements
of Hazardous Wastes and their Disposal (Izmir, 1 October 1996), ibid., vol. 2942, No. 16908, p. 155,
art. 1 (j) and (k); Rotterdam Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade (Rotterdam, 10 September 1998), ibid.,
vol. 2244, No. 39973, p. 337, preamble, art. 1 and art. 15, para. 4; Stockholm Convention on
Persistent Organic Pollutants (Stockholm, 22 May 2001), ibid., vol. 2256, No. 40214, p. 119,
preamble, art. 1, art. 3, para. 2 (b) (iii) a, art. 6, para. 1, art. 11, para. 1 (d), art. 13, para. 4; Minamata
Convention on Mercury (Kumamoto, 10 October 2013), text available from https://treaties.un.org
(Status of Multilateral Treaties Deposited with the Secretary General, chap. XXVII.17), preamble, art.
1, art. 3, para. 6 (b) (i), art. 12, paras. 2 and 3 (c), art. 18, para. 1 (b), art. 19, para. 1 (c); Regional
Agreement on Access to Information, Public Participation and Justice in Environmental Matters in
Latin America and the Caribbean (Escazú, 4 March 2018) (Escazú Agreement), text available from
https://treaties.un.org (Status of Multilateral Treaties Deposited with the Secretary General, chap.
XXVII.18), art. 6, para. 12.
1129 For instance, the African Charter on Human and Peoples’ Rights incorporates both the right to health
and the explicit right to a healthy environment. See African Charter on Human and Peoples’ Rights
(Nairobi, 27 June 1981), United Nations, Treaty Series, vol. 1520, No. 26363, p. 217, art. 16, para. 1
(the right to health), and art. 24 (“the right to a general satisfactory environment favourable to [each
person’s] development”). These rights were resorted to in Social and Economic Rights Action Center
(SERAC) and Center for Economic and Social Rights (CESR) v. Federal Republic of Nigeria,
Communication No. 155/96, Decision, African Commission on Human and Peoples’ Rights, 27 May
2002, and Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria, Judgment No.
ECW/CCJ/JUD/18/12, Community Court of Justice, Economic Community of West African States,
14 December 2012. Similarly, the Additional Protocol to the American Convention on Human Rights
in the area of Economic, Social and Cultural Rights (San Salvador, 17 November 1988), Organization
of American States, Treaty Series, No. 69, includes the right to health. The regional jurisprudence
acknowledges that the right to health includes an element of environmental protection, such as a
pollution-free environment. See Inter-American Commission on Human Rights, Annual Report 1984–
1985, chap. V “Areas in which further steps are needed to give effect to the human rights set forth in
the American Declaration of the Rights and Duties of Man and the American Convention on Human
Rights”, OEA/Ser.L/V/II.66; see also Inter-American Commission on Human Rights, Report on the
situation of human rights in Cuba, 4 October 1983, OEA/Ser.L/V/II.61, Doc. 29 rev. 1, chap. XIII
“The right to health”, para. 41; Inter-American Commission on Human Rights, resolution No. 12/85
in Case No. 7615, 5 March 1985; Inter-American Court of Human Rights, Indigenous Community
Yakye Axa v. Paraguay (footnote 1015 above), para. 167.
1130 Committee on Economic, Social and Cultural Rights, general comment No. 14 (2000) on the right to
the highest attainable standard of health (art. 12), Official Records of the Economic and Social
Council, 2001, Supplement No. 2 (E/2001/22-E/C.12/2000/21), annex IV, para. 30.
1131 See the Report of the Special Rapporteur on the issue of human rights obligations relating to the
enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/37/59).
1132 OECD Due Diligence Guidance (footnote 1105 above), recommendation, pp. 7–9.
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conflict and serious human rights abuses associated with extracting, trading, processing,
and exporting resources from conflict-affected and high-risk areas, 1133 as well as risks
associated with serious misconduct in environmental, social and ethical issues. 1134 The
European Union conflict minerals regulation defines “supply chain due diligence” as
meaning “the obligations of Union importers … in relation to their management systems,
risk management, independent third-party audits and disclosure of information with a view
to identifying and addressing actual and potential risks linked to conflict-affected and high-
risk areas to prevent or mitigate adverse impacts associated with their sourcing
activities”.1135
(12) A view was expressed that the second sentence of draft principle 10 should
recommend that natural resources be purchased or obtained “equitably” and in an
environmentally sustainable manner. While the established understanding of the concept of
sustainability as encompassing environmental, economic and social aspects, or the
importance of all these aspects for corporate due diligence was not questioned, the
Commission did not include the word “equitably” as it was felt that it could create
confusion in the context of draft principle 10.
(13) Draft principle 10 refers to corporate activities in areas of armed conflict or in post-
armed conflict situations but addresses what are essentially preventive measures. The draft
principle is therefore located in Part One which includes principles relating to the time
before conflict, and principles that are applicable in more than one phase including general
principles not tied to any particular phase.
Principle 11
Corporate liability
territories can be held liable for harm caused by them to the environment, including
in relation to human health, in an area of armed conflict or in a post-armed conflict
situation. Such measures should, as appropriate, include those aimed at ensuring that
a corporation or other business enterprise can be held liable to the extent that such
harm is caused by its subsidiary acting under its de facto control. To this end, as
appropriate, States should provide adequate and effective procedures and remedies,
in particular for the victims of such harm.
Commentary
(1) Draft principle 11 is closely related to draft principle 10 concerning corporate due
diligence. The purpose of draft principle 11 is to address situations in which harm has been
caused to the environment, including in relation to human health, in areas of armed conflict
or in post-conflict situations. States are invited to take appropriate legislative and other
measures aimed at ensuring that corporations or other business enterprises operating in or
from the State’s territory can be held liable for having caused such harm. The concepts of
“legislative and other measures”, “corporations and other business enterprises”, “the
environment, including in relation to human health”, “operating in or from their territories”
and “in an area of armed conflict or in a post-armed conflict situation” are to be interpreted
in the same way as in draft principle 10.
(2) The notions of “harm” and “caused by them” are to be interpreted in accordance
with the applicable law, which may be the law of the home State of the corporation or other
business enterprise, or the law of the State in which the harm has been caused. In this
regard, reference can be made to the legal regime applicable in the European Union 1136
which provides that the law applicable to a claim shall in general be that of the State in
1133 Chinese Due Diligence Guidelines for Responsible Mineral Supply Chains (see footnote 1108 above),
sect. 5.1.
1134 Ibid., sect. 5.2.
1135 European Union conflict minerals regulation (footnote 1112 above), art. 2 (d).
1136 As well as in Iceland, Norway and Switzerland.
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which the damage occurred.1137 As for the term “cause”, the Guiding Principles on Business
and Human Rights, in the context of human rights due diligence, refer to adverse impacts
that the business enterprise “may cause or contribute to through its own activities, or which
may be directly linked to its operations, products or services by its business
relationships”.1138
(3) The second sentence of draft principle 11 follows the wording of draft principle 10
in that it begins with a reference to the preceding sentence and adds a further consideration
that is included within its remit. The phrase “as appropriate” which does not appear in draft
principle 10 provides nuance as to how the elements of the provision are to be applied at
the national level. The second sentence of draft principle 11 recommends measures aimed
at ensuring that a corporation or other business enterprise can, under certain circumstances,
be held liable if its subsidiary has caused harm to the environment including in relation to
human health in armed conflict or a post-armed conflict situation. More specifically, this
should be possible when and to the extent that the subsidiary acts under the de facto control
of the parent company. To illustrate the importance of such control, reference can be made
to the statement of the United Kingdom Supreme Court in the Vedanta v. Lungowe case
regarding the possible liability of the British multinational group Vedanta Resources for the
release of toxic substances to a watercourse in Zambia by its subsidiary: “Everything
depends on the extent to which, and the way in which, the parent availed itself of the
opportunity to take over, intervene in, control, supervise or advise the management of the
relevant operations (including land use) of the subsidiary.”1139
(4) The concept of de facto control is to be interpreted in accordance with the
requirements of each national jurisdiction. The OECD Guidelines for Multinational
Enterprises point out in this regard that the companies or other entities forming a
multinational enterprise may coordinate their operations in different ways. “While one or
more of these entities may be able to exercise a significant influence over the activities of
others, their degree of autonomy within the enterprise may vary widely from one
multinational enterprise to another.”1140
(5) Reference can in this regard also be made to national judicial cases that have shed
light on the relevant aspects of the relationship between the parent company and its
subsidiary. For instance, in the Bowoto v. Chevron case,1141 the United States District Court
for the Northern District of California, paid particular attention to: (a) the degree and
content of the communication between the parent and the subsidiary; (b) the degree to
which the parent set or participated in setting policy, particularly security policy, for the
subsidiary; (c) the officers and directors whom the parent and the subsidiary had in
common; (d) the reliance on the subsidiary for revenue production and its importance in the
overall success of the parent’s operations; and (e) the extent to which the subsidiary, if
acting as the agent of the defendants, was acting within the scope of its authority. 1142 In a
further case, 1143 the United States District Court for the Southern District of New York
stated that one corporation may be held legally accountable for the actions of the other if
the corporate relationship between a parent and its subsidiary is sufficiently close. 1144
1137 Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July on the law
applicable to non-contractual obligations (Rome II Regulation), Official Journal of the European
Union, L 199, p. 40, art. 4, para. 1. See also Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters (Lugano, 30 October 2007), Official Journal of the
European Union, L 339, p. 3.
1138 Guiding Principles on Business and Human Rights, principle 17, para. (a).
1139 Vedanta Resources PLC and another v Lungowe and others, Judgment, 10 April 2019, Hilary Term
[2019] UKSC 20, On appeal from [2017] EWCA Civ 1528, para. 49.
1140 OECD Guidelines for Multinational Enterprises (footnote 1103 above), chap. I, para. 4, p. 17.
1141 Bowoto v. Chevron Texaco Corp., 312 F.Supp.2d 1229 (N.D. Cal. 2004). The case was related to
Chevron-Texaco Corporation’s alleged involvement in human rights abuses in Nigeria.
1142 Ibid., p. 1243.
1143 In re South African Apartheid Litigation, 617 F. Supp.2d 228 (S.D.N.Y. 2009). In this case, South
African plaintiffs sued Daimler AG and Barclays National Bank Ltd. for aiding and abetting the
Government of South Africa in its apartheid policy.
1144 Ibid., p. 246.
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Relevant factors in determining whether this was the case included disregard of corporate
formalities, intermingling of funds and overlap of ownership, officers, directors and
personnel. 1145 In the Chandler v. Cape case, the England and Wales Court of Appeal
concluded that, in appropriate circumstances, the parent company may have a duty of care
in relation to the health and safety of the employees of its subsidiary. That may be the case,
for instance, when the business of the parent and the subsidiary are in a relevant aspect the
same and the parent has, or ought to have, superior knowledge of the relevant aspects of
health and safety in the particular industry as well as of the shortcomings in the subsidiary’s
system of work.1146
(6) The third sentence of draft principle 11 concerns to both the first and the second
sentences of the draft principle. Its purpose is to recall that States should provide adequate
and effective procedures and remedies for the victims of environmental and health-related
harm caused by corporations or other business enterprises or their subsidiaries in areas of
armed conflict or in post-armed conflict situations. The sentence thus refers to situations, in
which the host State may not be in the position to effectively enforce its legislation.
Reference can in this regard also be made to the general comment of the Committee on
Economic, Social and Cultural Rights which interprets the obligation to protect as
extending to corporate wrongdoing abroad, “especially in cases where the remedies
available to victims before the domestic courts of the State where the harm occurs are
unavailable or ineffective”.1147
(7) It may be recalled that the collapse of State and local institutions is a common
consequence of armed conflict and one that often casts a long shadow in the aftermath of
conflict, undermining law enforcement and the protection of rights as well as the integrity
of justice. The important role that home States of corporations and other business
enterprises can play in such situations is illustrated by a reference to the Katanga Mining
case,1148 in which the dispute related to events in the Democratic Republic of the Congo.
The company Katanga Mining Ltd. was incorporated in Bermuda and resident in Canada
for tax purposes1149 and had all its actual business operations in the Democratic Republic of
the Congo.1150 The parties had furthermore agreed in a previous contract that any disputes
would be settled in the Court of Great Instance of Kolwezi (Democratic Republic of the
Congo). The English Court nevertheless decided, in view of the situation in which
“attempted interference with the integrity of justice” was “apparently widespread and
endemic”,1151 that the Democratic Republic of the Congo would not be “a forum in which
the case may be tried suitably for the interests of all the parties and for the ends of
justice”.1152
1145 Ibid., p. 251.

1146 Chandler v. Cape PLC, [2012] EWCA (Civ) 525 (Eng.), para. 80. It was furthermore required that the
parent company knew or ought to have known that the subsidiary or its employees relied on it for
protection. See also R. McCorquodale, “Waving not drowning: Kiobel outside the United States”,
American Journal of International Law, vol. 107 (2013), pp. 846–51. See also Lubbe and others v.
Cape PLC Afrika and others v. Same, 20 July 2000, 1 Lloyd’s Rep. 139, as well as P. Muchlinski,
“Corporations in international litigation: problems of jurisdiction and United Kingdom Asbestos
cases”, International and Comparative Law Quarterly, vol. 50 (2001), pp. 1–25. See also Akpan v.
Royal Dutch Shell PLC, The Hague District Court, case No. C/09/337050/HA ZA 09-1580
(ECLI:NL:RBDHA:2013:BY9854), 30 January 2013.
1147 Committee on Economic, Social and Cultural Rights, general comment No. 24 (2017) on State
obligations under the International Covenant on Economic, Social and Cultural Rights in the context
of business activities (E/C.12/GC/24), para. 30. The general comment links such measures to the
obligation to protect Covenant rights.
1148 Alberta Inc. v. Katanga Mining Ltd. [2008] EWHC 2679 (Comm), 5 November 2008 (Tomlinson J.).
1149 Ibid., para. 19.
1150 Ibid., para. 20.
1151 Ibid., para. 34.
1152 Ibid., para. 33. Similarly, in the United States case of In re Xe Services, the District Court dismissed
the private military company’s claim that Iraq would be an appropriate forum and held that it was not
shown that an alternative forum existed. See In re Xe Services Alien Tort Litigation, 665 F. Supp. 2d
569 (E.D. Va. 2009).
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(8) The human rights treaty bodies within the United Nations have also addressed the
issue in their comments on the situation in individual States. The Human Rights Committee,
for instance, has encouraged the relevant State party “to set out clearly the expectation that
all business enterprises domiciled in its territory and/or its jurisdiction respect human rights
standards in accordance with the Covenant throughout their operations” and “to take
appropriate measures to strengthen the remedies provided to protect people who have been
victims of activities of such business enterprises operating abroad”. 1153 Similarly, the
Committee on the Elimination of Racial Discrimination has drawn attention to instances
where the rights of indigenous peoples to land, health, environment and an adequate
standard of living have been adversely affected by the operations of transnational
corporations. In that context, it has encouraged the relevant State party to “ensure that no
obstacles are introduced in the law that prevent the holding of … transnational corporations
accountable in the State party’s courts when [violations of the Covenant] are committed
outside the State party.1154
(9) Reference can furthermore be made to the Montreux Document which refers to the
obligations that home States of private military and security companies have under
international human rights law. 1155 To give effect to such obligations, States “have the
obligation, in specific circumstances, to take appropriate measures to prevent, investigate
and provide effective remedies for relevant misconduct of [private military and security
companies] and their personnel”.1156
(10) The term “victims” refers to persons, whose health or livelihood has been harmed by
the environmental damage referred to in draft principle 11. Environmental damage may
also affect other human rights such as the right to life and the right to food. 1157 The phrase
“in particular for the victims” indicates, in the first place, that the adequate and effective
remedies should be available for the victims of the environmental harm. In the second place,
the phrase acknowledges that such remedies may also be available on a broader basis
depending on the national legislation. This may be a case of public interest litigation by
environmental associations or groups of persons who cannot allege a violation of their
individual rights or interests. 1158 Furthermore, environmental damage can also give rise to
civil claims in which the term “victim” would not be normally used.
1153 Human Rights Committee, concluding observations on the report of Germany (CCPR/C/DEU/CO/6),
para. 16.
1154 Committee on the Elimination of Racial Discrimination, concluding observations on the report of the
United Kingdom (CERD/C/GBR/CO/18-20), para. 29.
1155 “Montreux Document on pertinent legal obligations and good practices for States related to
operations of private military and security companies during armed conflict” (Montreux, ICRC,
2008). Fifty-four States support the Montreux Document, and the European Union endorsed it on 27
July 2012.
1156 Ibid., para. 15. See also Federal Department of Foreign Affairs of Switzerland and Geneva Centre for
the Democratic Control of Armed Forces (DCAF), “Legislative guidance tool for States to regulate
private military and security companies” (Geneva, 2016), which contains also examples of best
practices, available at www.dcaf.ch/sites/default/files/publications/documents/Legislative-Guidance-
Tool-EN_1.pdf (accessed on 8 July 2019). For national legislation, see also the Office of the United
Nations High Commissioner for Human Rights (OHCHR) study, available at
www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/NationalLegislationStudies.aspx
(accessed on 8 July 2019). See also Al-Quraishi et al. v. Nahkla and L-3 Services, 728 F Supp 2d 702
(D Md 2010) at 35–37, 29 July 2010. A settlement was reached in this case, after years of litigation,
in 2012.
1157 See footnotes 1304 and 1306 below.
1158 See L. Rajamani, “Public interest environmental litigation in India: exploring issues of access,
participation, equity, effectiveness and sustainability”, Journal of Environmental Law, vol. 19 (2007),
pp. 293–321. Available at www.researchgate.net/publication/316876795_Public_Interest_
Environmental_Litigation_in_India_Exploring_Issues_of_Access_Participation_Equity_Effectivenes
s_and_Sustainability (accessed on 8 July 2019). See also India Environmental Portal, Public Interest
Litigation, at www.indiaenvironmentportal.org.in/category/1255/thesaurus/public-interest-litigation-
pil (accessed on 8 July 2019). See also the Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) (Aarhus,
Denmark, 25 June 1998), United Nations, Treaty Series, vol. 2161, No. 37770, p. 447, art. 6, as well
as Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing
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(11) The words “adequate and effective procedures and remedies” are general in nature
and, together with the phrase “as appropriate”, allow States a certain flexibility when
applying this provision at the national level.
(12) Draft principle 11 is located in Part Two as a provision of general application for the
same reasons as draft principle 10.
Part Three
Principle 12
Martens Clause with respect to the protection of the environment in relation to
armed conflict
In cases not covered by international agreements, the environment remains
conscience.
Commentary
(1) Draft principle 12 is inspired by the Martens Clause, which originally appeared in
the preamble to the 1899 Hague Convention (II) with Respect to the Laws and Customs of
War on Land, 1159 and has been restated in several later treaties. 1160 The Martens Clause
provides, in essence, that even in cases not covered by specific international agreements,
civilians and combatants remain under the protection and authority of the principles of
international law derived from established custom, from the principles of humanity and
from the dictates of public conscience. 1161 The International Court of Justice has stated that
the clause forms part of customary international law. 1162 While originally conceived in the
context of belligerent occupation, the clause has today a broader application, covering all
areas of the law of armed conflict.1163
(2) The function of the Martens Clause is generally seen as providing residual
protection in cases not covered by a specific rule. 1164 The International Court of Justice
referred to the Martens Clause in Its Advisory Opinion on the Legality of Nuclear Weapons
for public participation in respect of the drawing up of certain plans and programmes relating to the
environment and amending with regard to public participation and access to justice Council
Directives 85/337/EEC and 96/61/EC.
1159 Convention (II) with Respect to the Laws and Customs of War on Land (The Hague, 29 July 1899),
J.B. Scott (ed.), The Hague Conventions and Declarations of 1899 and 1907 (see footnote 1086
above). The 1899 Martens Clause reads: “Until a more complete code of the laws of war is issued, the
high contracting Parties think it right to declare that in cases not included in the Regulations adopted
by them, populations and belligerents remain under the protection and empire of the principles of
international law, as they result from the usages established between civilized nations, from the laws
of humanity, and the requirements of the public conscience.” For a general overview, see
memorandum by the Secretariat on the effect of armed conflicts on treaties: an examination of
practice and doctrine (A/CN.4/550), paras. 140–142.
1160 See Geneva Convention I, art. 63; Geneva Convention II, art. 62; Geneva Convention III, art. 142;
Geneva Convention IV, art. 158. Additional Protocol I, art. 1, para. 2, and Additional Protocol II,
preamble, para. 4. See also Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects (Geneva, 10 October 1980), United Nations, Treaty Series, vol. 1342, No.
22495, p. 137, preamble, para. 5.
1162 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226,
para. 84.
1163 T. Meron, “The Martens Clause, principles of humanity, and dictates of public conscience”, American
Journal of International Law, vol. 94 (2000), pp. 78–89, at p. 87.
1164 Para. (3) of the commentary to art. 29 of the articles on the law of the non-navigational uses of
international watercourses with commentaries and resolution on transboundary confined groundwater,
Yearbook … 1994, vol. II (Part Two), at p. 131; para. (3) of the commentary to art. 18 of the articles
on the law of transboundary aquifers, Yearbook… 2008, vol. II (Part Two), paras. 53–54, at p. 43: “In
cases not covered by a specific rule, certain fundamental protections are afforded by the ‘Martens
clause’”.
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to strengthen the argument about the applicability of international humanitarian law to the
threat or use of nuclear weapons. 1165 Similarly, the ICRC Commentary to Geneva
Convention I mentioned, as a dynamic aspect of the clause, that it confirms “the application
of the principles and rules of humanitarian law to new situations or to developments in
technology, also when those are not, or not specifically, addressed in treaty law”.1166 The
clause thus prevents the argument that any means or methods of warfare that are not
explicitly prohibited by the relevant treaties 1167 are permitted, or, in a more general manner,
that acts of war not expressly addressed by treaty law, customary international law, or
general principles of law, are ipso facto legal.1168
(3) Further than that, however, views differ as to the legal consequences of the Martens
Clause. It has been seen as a reminder of the role of customary international law in the
absence of applicable treaty law, and of the continued validity of customary law beside
treaty law.1169 The Martens Clause has also been seen to provide additional interpretative
guidance “whenever the legal regulation provided by a treaty or customary rule is doubtful,
uncertain or lacking in clarity”.1170 A further interpretation links the Martens Clause to a
method of identifying customary international law in which particular emphasis is given to
opinio juris.1171 The inclusion of the present draft principle in the set of draft principles does
not mean, or imply, that the Commission is taking a position on the various interpretations
regarding the legal consequences of the Martens Clause.
(4) Draft principle 12 is entitled “Martens Clause with respect to the protection of the
environment in relation to armed conflict”. The title draws attention to the environmental
focus of the draft principle, the purpose of which is to provide subsidiary protection to the
environment in relation to armed conflict.
(5) This is not the first time the Martens Clause has been invoked in the context of the
protection of the environment in armed conflict. 1172 The ICRC Guidelines on the Protection
1165 “Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not
to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear
weapons”, Legality of the Threat or Use of Nuclear Weapons (see footnote 1162 above), para. 87.
1166 ICRC commentary (2016) to the Geneva Convention I, art. 63, para. 3298. See also C. Greenwood,
“Historical developments and legal basis”, in D. Fleck (ed.), The Handbook of International
Humanitarian Law (Oxford, Oxford University Press, 2008), pp. 33–34, at p. 34: “as new weapons
and launch systems continue to be developed, incorporating ever more sophisticated robotic and
computer technology, the venerable Martens Clause will ensure that the technology will not outpace
the law.”
1167 ICRC commentary (1987) to Additional Protocol I, art. 1, para. 2, para. 55; ICRC commentary to the
Geneva Convention I (2016), para. 3297.
1168 According to the German Military Manual, “[i]f an act of war is not expressly prohibited by
international agreements or customary law, this does not necessarily mean that it is actually
permissible”. See Federal Ministry of Defence, Humanitarian Law in Armed Conflicts – Manual,
para. 129 (ZDv 15/2, 1992).
1169 Greenwood, “Historical developments and legal basis” (footnote 1166 above), p. 34. See also the
ICRC commentary 2016to the Geneva Convention I, art. 63, para. 3296, which characterizes this as
the minimum content of the clause.
1170 A. Cassese, “The Martens Clause: half a loaf or simply pie in the sky?”, European Journal of
International Law, vol. 11 (2000), pp. 187–216, at pp. 212–213; G. Distefano and E. Henry, “Final
provisions, including the Martens Clause”, in A. Clapham, P. Gaeta and M. Sassóli (eds.), The 1949
Geneva Conventions: A Commentary (Oxford: Oxford University Press, 2015), pp. 155–188, at pp.
185–186. See also Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, Judgment, 14 January 2000,
paras. 525 and 527.
1171 Cassese, “The Martens Clause: half a loaf or simply pie in the sky?” (see previous footnote), p. 214;
Meron, “The Martens Clause, principles of humanity, and dictates of public conscience” (see footnote
1163 above), p. 88.
1172 See P. Sands et al., Principles of International Environmental Law, 4th ed. (Cambridge, Cambridge
University Press, 2018), p. 832: “In modern international law, there is no reason why [the dictates of
public conscience] should not encompass environmental protection”. Similarly M. Bothe et al.,
“International law protecting the environment during armed conflict: gaps and opportunities”,
International Review of the Red Cross, vol. 92 (2010), pp. 569–592, at pp. 588–589; Droege and
Tougas, “The protection of the natural environment in armed conflict: existing rules and need for
further legal protection” (footnote 998 above), pp. 39–40; M. Tignino, “Water during and after armed
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of the Environment in Armed Conflict of 1994 include a provision stating the following:
“In cases not covered by international agreements, the environment remains under the
protection and authority of the principles of international law derived from established
custom, the principles of humanity and the dictates of public conscience.”1173 In 1994, the
General Assembly invited all States to disseminate the revised guidelines widely and to
“give due consideration to the possibility of incorporating them into their military manuals
and other instructions addressed to their military personnel”.1174 The second IUCN World
Conservation Congress, furthermore, in 2000 urged Member States of the United Nations to
endorse a policy reading as follows:
Until a more complete international code of environmental protection has been
adopted, in cases not covered by international agreements and regulations, the
biosphere and all its constituent elements and processes remain under the protection
and authority of the principles of international law derived from established custom,
from dictates of the public conscience, and from the principles and fundamental
values of humanity acting as steward for present and future generations. 1175
The recommendation was adopted by consensus 1176 and was meant to apply during
peacetime as well as during armed conflicts. 1177
(6) The present draft principle follows the wording of the Martens Clause in Additional
Protocol I to the Geneva Conventions (art. 1, para. 2), which states: “In cases not covered
by this Protocol or by other international agreements, civilians and combatants remain
conscience.” The Commission agreed that in particular the reference to “the dictates of
public conscience”, as a general notion not intrinsically limited to one specific meaning,
justified the application of the Martens Clause to the environment. In this regard, reference
can be made to the importance, as generally recognized, of environmental protection, as
well as to the growth and consolidation of international environmental law. More
specifically, the understanding of the environmental impacts of conflict has developed
considerably since the adoption of the treaties codifying the law of armed conflict.
(7) Another essential component of the Martens Clause, the reference to “the principles
of humanity”, displays a more indirect relationship to the protection of the environment. It
has even been asked whether the environment can remain under the protection of “the
principles of humanity”, given that the function of such principles is to specifically serve
human beings. That reference was retained given that humanitarian and environmental
concerns are not mutually exclusive, as pointed out by the International Court of Justice:
“The environment is not an abstraction but represents the living space, the quality of life
and the very health of human beings, including generations unborn”.1178 The intrinsic link
between the survival of people and the environment in which they live has also been
recognized in other authoritative statements. 1179 Similarly, modern definitions of the
conflicts: what protection in international law?”, Brill Research Perspectives in International Water
Law, vol. 1.4 (2016), pp. 1–111, at pp. 26, 28 and 41.
1173 ICRC, Guidelines for Military Manuals and Instructions on the Protection of the Environment in
Times of Armed Conflict (footnote 973 above), guideline 7.
1174 General Assembly resolution 49/50 of 9 December 1994, para. 11.
1175 World Conservation Congress, resolution 2.97, entitled “A Martens Clause for environmental
protection” (Amman, 4–11 October 2000).
1176 The United States and United States agency members did not join the consensus.
1177 D. Shelton and A. Kiss, “Martens Clause for environmental protection”, Environmental Policy and
Law, vol. 30 (2000), pp. 285–286, at p. 286.
1178 See Legality of the Threat or Use of Nuclear Weapons (footnote 1162 above), p. 241, para. 29.
1179 The World Charter for Nature stated that “[m]ankind is a part of nature and life depends on the
uninterrupted functioning of natural systems”. General Assembly resolution 37/7 of 28 October 1982,
annex, preamble. The Special Rapporteur on human rights and the environment has furthermore
linked human dignity with the environment as a “minimum standard of human dignity”: “Without a
healthy environment, we are unable to fulfil our aspirations or even live at a level commensurate with
minimum standards of human dignity.” See, OHCHR, “Introduction”, available at
www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx (accessed
on 8 July 2019).
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environment as an object of protection do not draw a strict dividing line between the
environment and human activities but encourage definitions that include components of
both. 1180 Moreover, the retention of that notion was seen as appropriate to protect the
integrity of the Martens Clause. Additionally, the phrase “principles of humanity” can be
taken to refer more generally to humanitarian standards that are found not only in
international humanitarian law but also in international human rights law, 1181 which
provides important protections to the environment.1182
(8) As originally proposed by the Special Rapporteur, the draft principle included a
reference to “present and future generations”. This reference was ultimately not retained so
as to stay as close to the established language of the Martens Clause as possible. The view
was also expressed that the term “public conscience” could be seen to encompass the notion
of intergenerational equity as an important part of the ethical basis of international
environmental law.
(9) Draft principle 12 is located in Part Three containing draft principles applicable
during an armed conflict. It also applies in situations of occupation.
Principle 13
General protection of the natural environment during armed conflict
1. The natural environment shall be respected and protected in accordance with
applicable international law and, in particular, the law of armed conflict.
2. Care shall be taken to protect the natural environment against widespread,
long-term and severe damage.
3. No part of the natural environment may be attacked, unless it has become a
military objective.
Commentary
(1) Draft principle 13 comprises three paragraphs which broadly provide for the
protection of the natural environment during armed conflict. It reflects the obligation to
respect and protect the natural environment, the duty of care and the prohibition of attacks
against any part of the environment, unless it has become a military objective.
1180 See Sands, Principles of International Environmental Law (footnote 1172 above), p. 14: The concept
of the environment, however, encompasses “both the features and the products of the natural world
and those of human civilisation.” See also C.R. Payne, “Defining the environment: environmental
integrity”, in C. Stahn, J. Iverson and J. Easterday (eds.), Environmental Protection and Transitions
from Conflict to Peace: Clarifying Norms, Principles, and Practices (Oxford, Oxford University
Press, 2017), pp. 40–70, at p. 69, calling for a consideration of “how human activities and
environment function as an interactive system”, not focusing exclusively on one element.
1181 Cassese, “The Martens Clause: half a loaf or simply pie in the sky?” (footnote 1170 above), p. 212,
refers to “general standards of humanity” as deduced from international human rights standards.
Principles of humanity can furthermore be equated with “elementary considerations of humanity”
which, according to the International Court of Justice, are “even more exacting in peace than in war”.
See Corfu Channel case, Judgment of April 9th 1949, I.C.J. Reports 1949, p. 4, at p. 22. See also P.-
M. Dupuy, “‘Les considérations élémentaires d’humanité’ dans la jurisprudence de la Cour
internationale de Justice”, in L.-A. Sicilianos and R.-J. Dupuy (eds.), Mélanges en l’honneur de
Nicolas Valticos: Droit et justice (Paris, Pedone, 1998), pp. 117–130.
1182 Several courts and tribunals have explicitly recognized the interdependence between human beings
and the environment by affirming that environmental harm affects the right to life. Socio-Economic
Rights and Accountability Project (SERAP) v. Nigeria, Judgment No. ECW/CCJ/JUD/18/12,
Community Court of Justice, Economic Community of West African States, 14 December 2012;
Öneryildiz v. Turkey, Application No. 48939/99, Judgment, European Court of Human Rights, 30
November 2004, ECHR 2004-XII, para. 71. As the most recent such ruling, the advisory opinion of
the Inter-American Court of Human Rights Medio Ambiente y Derechos Humanos established that
there is an inalienable relationship between human rights and environmental protection. Inter-
American Court of Human Rights, Advisory Opinion No. OC 23-17, Medio Ambiente y Derechos
Humanos [The environment and human rights], 15 November 2017, Series A, No. 23. See also the
resolution of the Inter-American Commission of Human Rights in Yanomami v. Brazil, resolution No.
12/85, Case No. 7615, 5 March 1985.
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(2) Paragraph 1 sets out the general position that in relation to armed conflict, the
natural environment shall be respected and protected in accordance with applicable
international law and, in particular, the law of armed conflict.
(3) The words “respected” and “protected” were considered fitting for use in this draft
principle as they have been used in several law of armed conflict, international
environmental law and international human rights law instruments. 1183 The International
Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons held that “respect for the environment is one of the elements that go to assessing
whether an action is in conformity with the principle of necessity” and that States have a
duty “to take environmental considerations into account in assessing what is necessary and
proportionate in the pursuit of legitimate military objectives”.1184
(4) As far as the use of the term “law of armed conflict” is concerned, it should be
emphasized that traditionally there was a distinction between the terms “law of armed
conflict” and “international humanitarian law”.1185 International humanitarian law could be
viewed narrowly as only referring to the part of the law of armed conflict which aims at
protecting victims of armed conflict; whereas the law of armed conflict can be seen as more
of an umbrella term covering the protection of victims of armed conflict as well as
regulating the means and methods of war. 1186 The terms are often seen as synonyms in
international law.1187 However, the term “law of armed conflict” was preferred due to its
broader meaning and to ensure consistency with the Commission’s previous work on the
draft articles on effects of armed conflict on treaties, in which context it was pointed out
that the law of armed conflict also includes the law of occupation and the law of
neutrality. 1188 The relationship between the present topic and the topic on the effects of
armed conflict on treaties should be emphasized.
(5) As far as the term “applicable international law” is concerned, it must be noted that
the law of armed conflict is lex specialis during times of armed conflict, but that other rules
of international law providing environmental protection, such as international
environmental law and international human rights law, remain relevant.1189 Paragraph 1 of
draft principle 13 is therefore relevant during all three phases (before, during and after
armed conflict) to the extent that the law of armed conflict applies. This paragraph
highlights the fact that the draft principles are intended to build on existing references to the
protection of the environment in the law of armed conflict together with other rules of
international law in order to enhance the protection of the environment in relation to armed
conflict overall.
1183 A considerable number of instruments on the law of armed conflict, environmental law and human
rights law which contain the terms “respect” and “protect”. Of most relevance is the World Charter of
Nature, General Assembly resolution 37/7 of 28 October 1982, in particular the preamble and
principle 1, and Additional Protocol I, art. 48, para. 1, which provides that civilian objects shall be
respected and protected. See also, for example, the International Covenant on Civil and Political
Rights (New York, 16 December 1964), United Nations, Treaty Series, vol. 999, p. 171, art. 2;
Additional Protocol I, art. 55, and the Rio Declaration on Environment and Development (Rio
Declaration), Report of the United Nations Conference on Environment and Development, Rio de
Janeiro, 3–14 June 1992, vol. I, Resolutions adopted by the Conference (United Nations publication,
Sales No. E.93.I.8 and corrigendum), resolution 1, annex I, principle 10.
1184 Legality of the Threat or Use of Nuclear Weapons (footnote 1162 above), para. 30. See also ibid., p.
253, para. 63.
1185 For a description of the semantics, see Y. Dinstein (ed.), The Conduct of Hostilities under the Law of
International Armed Conflict, 2nd ed. (Cambridge, Cambridge University Press, 2010), at paras. 35–
37 and 41–43.
1186 See e.g., R. Kolb and R. Hyde, An Introduction to the International Law of Armed Conflicts (Oxford,
Hart, 2008), pp. 16–17.
1187 Ibid.
1188 Official Records of the General Assembly, Sixty-Sixth Session, Supplement No. 10 (A/66/10),
Commentary on art. 2, p. 182.
1189 Legality of the Threat or Use of Nuclear Weapons (see footnote 1162 above), pp. 240–242, paras. 25
and 27–30.
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(6) Paragraph 2 is inspired by article 55 of Additional Protocol I, which provides the

rule that care shall be taken to protect the environment against widespread, long term and
severe damage in international armed conflicts. 1190 The term “care shall be taken” should be
interpreted as indicating that there is a duty on the parties to an armed conflict to be vigilant
of the potential impact that military activities can have on the natural environment. 1191
(7) Similar to article 55, draft principle 13 also uses the word “and” which indicates a
triple cumulative standard. However, draft principle 13 differs from article 55 as regards
applicability and generality. First, draft principle 13 does not make a distinction between
international and non-international armed conflicts, with the understanding that the draft
principles are aimed at applying to all armed conflicts. 1192 This includes international armed
conflicts, understood in the traditional sense of an armed conflict fought between two or
more States, as well as armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist régimes in the exercise of their right of
self-determination; as well as non-international armed conflicts, which are fought either
between a State and organized armed group(s) or between organized armed groups within
the territory of a State.1193
(8) The terms “widespread”, “long-term” and “severe” are not defined in Additional
Protocol I. The same terms are used in the Convention on the Prohibition of Military or
Any Other Hostile Use of Environmental Modification Techniques. 1194 However, the
Convention does not contain the triple cumulative requirement as required by Additional
Protocol I, as it uses the word “or” instead of “and”, and also that the context of the
Convention is far narrower than Additional Protocol I.
(9) Second, draft principle 13 differs from article 55 of Additional Protocol I in that it is
of a more general nature. Unlike article 55, draft principle 13 does not explicitly prohibit
the use of methods or means of warfare which are intended or may be expected to cause
damage to the natural environment and thereby prejudice the health or survival of the
population. Concerns that this exclusion may weaken the text of the draft principles should
be considered in light of the general nature of the draft principles. Paragraph 2 should be
read together with draft principle 14, which deals with the application of principles and
rules of the law of armed conflict to the natural environment with the aim of providing
environmental protection.
(10) Paragraph 3 of draft principle 13 is based on the fundamental rule that a distinction
must be made between military objectives and civilian objects. 1195 It underlines the
inherently civilian nature of the natural environment.Paragraph 3 of draft principle 13 can
1190 Article 55 – Protection of the natural environment reads:

“1. Care shall be taken in warfare to protect the natural environment against widespread, long-
term and severe damage. This protection includes a prohibition of the use of methods or means of
warfare which are intended or may be expected to cause such damage to the natural environment and
thereby to prejudice the health or survival of the population.
2. Attacks against the natural environment by way of reprisals are prohibited.”
1191 Pilloud and Pictet, “Article 55: Protection of the natural environment” (see footnote 999 above), p.
663, para. 2133. See also K. Hulme, “Taking care to protect the environment against damage: a
meaningless obligation?” in International Review of the Red Cross, vol. 92 (2010), pp. 675–691.
1192 See A/CN.4/674, paras. 69–78.
1193 Geneva Convention I; Geneva Convention II; Geneva Convention III; Geneva Convention IV,
common articles 2 and 3; Additional Protocol I, art. 1; and Additional Protocol II, art. 1.
1194 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques (New York, 10 December 1976), United Nations, Treaty Series, vol.1108, No. 17119, p.
151, art. 2. In the understanding relating to article I thereof, the terms “widespread”, “long-term” and
“severe” are understood as follows: “‘widespread’: encompassing an area on the scale of several
hundred square kilometers”; “‘long-lasting’: lasting for a period of months, or approximately a
season”; “‘severe’: involving serious or significant disruption or harm to human life, natural and
economic resources or other assets” (Report of the Conference of the Committee on Disarmament,
Official Records of the General Assembly, Thirty-first Session, Supplement No. 27 (A/31/27), vol. I,
pp. 91–92).
1195 See, in general, Henckaerts and Doswald-Beck, Customary International Humanitarian Law …
(footnote 969 above), rule 7 and rule 43, pp. 25–29 and 143.
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be linked to article 52, paragraph 2, of Additional Protocol I, which defines the term
“military objective” as:
… [T]hose objects which by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite military
advantage.1196
The term “civilian object” is defined as “all objects which are not military objectives”.1197
In terms of the law of armed conflict, attacks may only be directed against military
objectives, and not civilian objects. 1198 There are several binding and non-binding
instruments which indicate that this rule is applicable to parts of the natural
environment.1199
(11) Paragraph 3 is, however, temporally qualified with the words “has become”, which
emphasizes that this rule is not absolute: the environment may become a military objective
in certain instances, and could thus be lawfully targeted.1200
(12) Paragraph 3 is based on the first paragraph of rule 43 of the ICRC study on
customary international humanitarian law. However, the other parts of rule 43 were not
included in its current formulation, which raised some concerns. In this regard, it is useful
to reiterate that the draft principles are general in nature. Accordingly, both paragraph 2 and
paragraph 3 must be read together with draft principle 14, which specifically references the
application of the law of armed conflict rules and principles of distinction, proportionality,
military necessity and precautions in attack.
1196 Additional Protocol I, art. 52, para. 2. A similar definition is provided in the following protocols to
the Convention on Certain Conventional Weapons: Protocol II on Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and Other Devices annexed to the Convention on Certain Conventional
Weapons (Geneva, 10 October 1980) (Protocol II to the Convention on Certain Conventional
Weapons), United Nations, Treaty Series, vol. 1342, No. 22495, p. 137, at p. 168; amended Protocol
II to the Convention on Certain Conventional Weapons and Protocol III on Prohibitions or
Restrictions on the Use of Incendiary Weapons, annexed to the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively
Injurious or to Have Indiscriminate Effects (Protocol III to the Convention on Certain Conventional
Weapons), ibid., vol. 1342, No. 22495, p. 171 as well as the 1999 Second Protocol.
1197 See art. 52, para. 1, of Additional Protocol I, as well as art. 2, para. 5 of the Protocol II to the
Convention on Certain Conventional Weapons; art. 2, para. 7, of the amended Protocol II to the
Convention on Certain Conventional Weapons; and art. 1, para. 4, of the Protocol III to the
Convention on Certain Conventional Weapons.
1198 See, in general, Henckaerts and Doswald-Beck, Customary International Humanitarian Law …
(footnote 969 above), rule 7, pp. 25–29. The principle of distinction is codified, inter alia, in article
48 and 52, paragraph 2, of Additional Protocol I, as well as the Amended Protocol II and Protocol III
to the Convention on Certain Conventional Weapons. It is recognized as a rule of customary
international humanitarian law in both international and non-international armed conflict.
1199 The following instruments have been cited, inter alia: art. 2, para. 4, of Protocol III to the Convention
on Certain Conventional Weapons, the Guidelines on the Protection of the Environment in Times of
Armed Conflict, the Final Declaration adopted by the International Conference for the Protection of
War Victims, General Assembly resolutions 49/50 and 51/157, annex, the military manuals of
Australia and the United States, as well as national laws of Nicaragua and Spain. See Henckaerts and
Doswald-Beck, Customary International Humanitarian Law … (footnote 969 above), rule 43, pp.
143–144.
1200 See e.g. M. Bothe et al., “International law protecting the environment during armed conflict: gaps
and opportunities” (footnote 1172 above), at p. 576; R. Rayfuse, “Rethinking international law and
the protection of the environment in relation to armed conflict” in War and the Environment: New
Approaches to Protecting the Environment in Relation to Armed Conflict, R. Rayfuse (ed.) (Leiden,
Brill Nijhoff, 2015) p. 6; see also C. Droege and M.-L. Tougas, “The protection of the natural
environment in armed conflict …” (footnote 998 above), pp. 17–19; D. Fleck, “The protection of the
environment in armed conflict: legal obligations in the absence of specific rules”, ibid., pp. 47–52; E.
Koppe, “The principle of ambiguity and the prohibition against excessive collateral damage to the
environment during armed conflict”, ibid., pp. 76–82; and M. Bothe, “The ethics, principles and
objectives of protection of the environment in times of armed conflict”, ibid., p. 99.
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(13) Draft principle 13 strikes a balance: creating guiding principles for the protection of
the environment in relation to armed conflict without reformulating rules and principles
already recognized by the law of armed conflict.
Principle 14
Application of the law of armed conflict to the natural environment
The law of armed conflict, including the principles and rules on distinction,
proportionality, military necessity and precautions in attack, shall be applied to the
natural environment, with a view to its protection.
Commentary
(1) Draft principle 14 is entitled “Application of the law of armed conflict to the natural
environment” and deals with the application of principles and rules of the law of armed
conflict to the natural environment with a view to its protection. Draft principle 14 is placed
in Part Two of the draft principles indicating that it is intended to apply during armed
conflict. The overall aim of the draft principle is to strengthen the protection of the
environment in relation to armed conflict, and not to reaffirm the law of armed conflict.
(2) The words “law of armed conflict” were chosen instead of “international
humanitarian law” for the same reasons explained in the commentary on draft principle 13.
The use of this term also highlights the fact that draft principle 14 deals exclusively with
the law of armed conflict as lex specialis, and not other branches of international law.
(3) Draft principle 14 lists some specific principles and rules of the law of armed
conflict, namely the principles and rules of distinction, proportionality, military necessity
and precautions in attack.1201 The draft principle itself is of a general character and does not
elaborate on how these well-established principles and rules under the law of armed conflict
should be interpreted. They are explicitly included in draft principle 14 because they have
been identified as being the most relevant principles and rules relating to the protection of
the environment in relation to armed conflict. 1202 However, this reference should not be
interpreted as indicating a closed list, as all other rules under the law of armed conflict
which relate to the protection of the environment in relation to armed conflict remain
applicable and cannot be disregarded.1203
(4) One of the cornerstones of the law of armed conflict 1204 is the principle of distinction
which obliges parties to an armed conflict to distinguish between civilian objects and
military objectives at all times, and that attacks may only be directed against military
objectives.1205 This is considered a rule under customary international law, applicable in
1201 The reference to the rule of military necessity rather than to the principle of necessity reflects the
view of some States that military necessity is not a general exemption, but needs to have its basis in
an international treaty provision.
1202 See R. Rayfuse, “Rethinking international law and the protection of the environment in relation to
armed conflict” (footnote 1200 above), p. 6; United Nations Environment Programme, Protecting the
Environment During Armed Conflict: An Inventory and Analysis of International Law (Nairobi,
United Nations Environment Programme, 2009), pp. 12–13.
1203 These include, inter alia, arts. 35 and 55 of Additional Protocol I. Other provisions of Additional
Protocol I and Additional Protocol II, as well as other instruments of the law of armed conflict which
may indirectly contribute to protecting the environment such as those prohibiting attacks against
works and installations containing dangerous forces (Additional Protocol I, art. 56; Additional
Protocol II, art. 15), those prohibiting attacking objects indispensable to the civilian population
(Additional Protocol I, art. 54; Additional Protocol II, art. 14); the prohibition against pillage
(Regulations respecting the laws and customs of war on land (The Hague, 18 October 1907) (the
Hague Regulations), art. 28); Additional Protocol II, art. 4, para. 2 (g) and the prohibition on the
forced movement of civilians (Additional Protocol II, art. 17). See also United Nations Environment
Programme, Environmental Considerations of Human Displacement in Liberia: A Guide for Decision
Makers and Practitioners (2006).
1204 Legality of the Threat or Use of Nuclear Weapons (see footnote 1162 above), para. 78; M.N. Schmitt,
“Military necessity and humanity in international humanitarian law: preserving the delicate balance”,
Virginia Journal of International Law, vol. 50 (2010), pp. 795–839, at p. 803.
1205 The principle of distinction is now codified in arts. 48, 51, para. 2, and 52, para. 2, of Additional
Protocol I; art. 13, para. 2, of Additional Protocol II; amended Protocol II to the Convention on
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both international and non-international armed conflict.1206 As explained in the commentary

on draft principle 13, the natural environment is not intrinsically military in nature and
should be treated as a civilian object. However, there are certain circumstances in which
parts of the environment may become a military objective, in which case such parts may be
lawfully targeted.
(5) The principle of proportionality establishes that an attack against a legitimate
military target is prohibited if it may be expected to cause incidental damage to civilians or
civilian objects, which would be excessive in relation to the concrete and direct military
advantage anticipated.1207
(6) The principle of proportionality is an important rule under the law of armed conflict
also because of its relation to the rule of military necessity. 1208 It is codified in several
instruments of the law of armed conflict, and the International Court of Justice has also
recognized its applicability in its Advisory Opinion on Legality of the Threat or Use of
Nuclear Weapons.1209 It is considered a rule under customary international law, applicable
in both international and non-international armed conflict.1210
(7) As the environment is often indirectly rather than directly affected by armed conflict,
rules relating to proportionality are of particular importance in relation to the protection of
the natural environment in armed conflict. 1211 The particular importance of the principle of
proportionality in relation to the protection of the natural environment in armed conflict has
been emphasized by the ICRC customary law study, which found that the potential effect of
an attack on the environment needs to be assessed. 1212
(8) If the rules relating to proportionality are applied in relation to the protection of the
natural environment, it means that attacks against legitimate military objectives must be
refrained from if such an attack would have incidental environmental effects that exceed the
value of the military objective in question. 1213 On the other hand, the application of the
principle of proportionality also means that “if the target is sufficiently important, a greater
Certain Conventional Weapons; Protocol III to the Convention on Certain Conventional Weapons;
and the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-
Personnel Mines and on their Destruction (Oslo, 18 September 1997), United Nations, Treaty Series,
vol. 2056, No. 35597, p. 211.
1206 See Henckaerts and Doswald-Beck, Customary International Humanitarian Law … (footnote 969
above), rule 7, p. 25.
1207 Art. 51, para. 5 (b), of Additional Protocol I. See also Y. Dinstein, “Protection of the environment in
international armed conflict” Max Planck Yearbook of United Nations Law, vol. 5 (2001), pp. 523–
549, at pp. 524–525. See also L. Doswald-Beck, “International humanitarian law and the advisory
opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear
Weapons”, International Review of the Red Cross, vol. 37 (1997), pp. 35–55, at p. 52.
1208 Schmitt, “Military necessity and humanity …” (footnote 1204 above), p. 804.
1209 Additional Protocol I, arts. 51 and 57, Additional Protocol II, and amended Protocol II to the
Convention on Certain Conventional Weapons as well as the Statute of the International Criminal
Court, art. 8, para. 2 (b) (iv). See also Legality of the Threat or Use of Nuclear Weapons (footnote
1162 above), at p. 242, para. 30.
1210 Henckaerts and Doswald-Beck, Customary International Humanitarian Law … (footnote 969 above),
rule 14, p. 46.
1211 Ibid., rule 44, p. 150; Droege and Tougas, “The protection of the natural environment in armed
conflict …” (footnote 998 above), p. 19; see also United Nations Environment Programme, Desk
Study on the Environment in Liberia (footnote 1058 above) and United Nations Environment
Programme, Environmental Considerations of Human Displacement in Liberia … (footnote 1203
above).
rule 44, p. 150.
1213 See also Dinstein, “Protection of the environment …” (footnote 1207 above), pp. 524–525; Doswald-
Beck, “International humanitarian law and the advisory opinion of the International Court of Justice
…” (footnote 1207 above); United Nations Environment Programme, Protecting the Environment
During Armed Conflict … (footnote 1202 above), p. 13; Rayfuse, “Rethinking international law and
the protection of the environment in relation to armed conflict” (footnote 1200 above), p. 6; Droege
and Tougas, “The protection of the natural environment …” (footnote 998 above), pp. 19–23.
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degree of risk to the environment may be justified”.1214 It therefore accepts that “collateral
damage” to the natural environment may be lawful in certain instances.
(9) Under the law of armed conflict, military necessity allows “measures which are
actually necessary to accomplish a legitimate military purpose and are not otherwise
prohibited”.1215 It means that an attack against a legitimate military objective which may
have negative environmental effects will only be allowed if such an attack is actually
necessary to accomplish a specific military purpose and is not covered by the prohibition
against the employment of methods or means of warfare which are intended, or may be
expected, to cause widespread, long-term and severe damage to the natural environment,1216
or other relevant prohibitions, and meets the criteria contained in the principle of
proportionality.1217
(10) The rule concerning precautions in attack lays out that care must be taken to spare
the civilian population, civilians and civilian objects from harm during military operations;
and also that all feasible precautions must be taken to avoid and minimize incidental loss of
civilian life, injury to civilians as well as damage to civilian objects which may occur. The
rule is codified in several instruments of the law of armed conflict 1218 and is also considered
to be a customary international law rule in both international and non-international armed
conflict.1219
(11) The fundamental rule concerning precautions in attack obliges parties to an armed
conflict to take all feasible precautions in planning and deciding an attack. Therefore in
relation to the protection of the environment, it means that parties to an armed conflict are
obliged to take all feasible precautions to avoid and minimize collateral environmental
damage.1220
(12) Lastly, the words “shall be applied to the natural environment, with a view to its
protection” introduces an objective which those involved in armed conflict or military
operations should strive towards, and thus it goes further than simply affirming the
application of the rules of armed conflict to the environment.
Principle 15
Environmental considerations
Environmental considerations shall be taken into account when applying the
principle of proportionality and the rules on military necessity.
Commentary
(1) Draft principle 15 is entitled “Environmental considerations” and provides that
environmental considerations shall be taken into account when applying the principle of
proportionality and the rules on military necessity.
(2) The text is drawn from and inspired by the Advisory Opinion of the International
Court of Justice on Legality of the Threat or Use of Nuclear Weapons, which held that:
“States must take environmental considerations into account when assessing what is
1214 International Criminal Tribunal for the Former Yugoslavia, Final Report to the Prosecutor by the
Committee Established to Review the NATO Bombing Campaign against the Federal Republic of
Yugoslavia, para. 19. Available from www.icty.org/x/file/Press/nato061300.pdf (accessed on 8 July
2019). See also Dinstein, “Protection of the environment …” (footnote 1207 above), pp. 524–525.
1215 M. Sassoli, A. Bouvier and A. Quintin, “How does law protect in war: online glossary”. Available
from https://casebook.icrc.org/glossary/military-necessity (accessed on 8 July 2019).
1217 Ibid., art. 51, para. 5 (b).
1218 The principle of precautions in attack is codified in art. 2, para. 3, of the Convention (IX) of 1907
concerning Bombardment by Naval Forces in Time of War (The Hague, 18 October 1907), J. B. Scott
(ed.), The Hague Conventions and Declarations of 1899 and 1907 (see footnote 1086 above); art. 57,
para. 1, of Additional Protocol I, as well as amended Protocol II to the Convention on Certain
Conventional Weapons, and the 1999 Second Protocol.
rule 15, p. 51.
1220 Ibid., rule 44, p. 147.
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necessary and proportionate in the pursuit of legitimate military objectives. Respect for the
environment is one of the elements that goes into assessing whether an action is in
conformity with the principles of necessity and proportionality”.1221
(3) Draft principle 15 is closely linked with draft principle 14. The added value of this
draft principle in relation to draft principle 14 is that it provides specificity with regard to
the application of the principle of proportionality and the rules of military necessity. It is
therefore of operational importance. However, a view was expressed that it should be
deleted altogether.
(4) Draft principle 15 aims to address military conduct and does not deal with the
process of determining what constitutes a military objective as such. This is already
regulated under the law of armed conflict, and is often reflected in military manuals and
domestic law of States. 1222 The words “when applying the principle” were specifically
chosen to make this point clear. Also for purposes of clarity and in order to emphasize the
link between draft principles 14 and 15, it was decided to refer explicitly to the principle of
proportionality and the rules on military necessity. These principles have been discussed in
the commentary to draft principle 14 above.
(5) Draft principle 15 becomes relevant once the legitimate military objective has been
identified. Since knowledge of the environment and its eco-systems is constantly increasing,
better understood and more widely accessible to humans, it means that environmental
considerations cannot remain static over time, they should develop as human understanding
of the environment develops.
Principle 16
Prohibition of reprisals
Attacks against the natural environment by way of reprisals are prohibited.
Commentary
(1) Draft principle 16 is entitled “Prohibition of reprisals” and is identical to paragraph
2 of article 55 of Additional Protocol I.
(2) Although the draft principle on the prohibition of reprisals against the natural
environment was welcomed and supported by some members, other members raised several
issues concerning its formulation and were of the view that it should not have been
included in the draft principles at all. The divergent views centred around three main points:
(a) the link between draft principle 16 and article 51 of Additional Protocol I; (b) whether
or not the prohibition of reprisals against the environment reflected customary law; and (c)
if so, whether both international and non-international armed conflicts were covered by
such a customary law rule.
(3) Those who expressed support for the inclusion of the draft principle stressed the link
between draft principle 16 and article 51 of Additional Protocol I. In their view, article 51
(which is placed under the section “General protection against effects of hostilities”) is one
of the most fundamental articles of Additional Protocol I. It codifies the customary rule that
civilians must be protected against danger arising from hostilities, and, in particular, also
provides that “attacks against the civilian population or civilians by way of reprisals are
1222 See Additional Protocol I, arts. 48, 50, 51 (in particular para. 4), 52 (in particular para. 2) and 57,
para. 2, and Additional Protocol II, art. 13, para. 2. See Y. Dinstein, “Legitimate military objectives
under the current jus in bello”, International Law Studies, vol. 78 (2002), p. 139, and L.R. Blank,
“Extending positive identification from persons to places: terrorism, armed conflict, and the
identification of military objectives”, Utah Law Review, No. 5 (2013), pp. 1227–1261. See, e.g.,
United Kingdom, Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford, Oxford
University Press, 2004), para. 5.4; Canada, National Defence, Law of Armed Conflict at the
Operational and Tactical Levels (2001) B-GJ-005-104/FP-021, pp. 405–427; United States,
Department of Defense, Law of War Manual (Office of General Counsel, Washington D.C., 2015).
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prohibited”.1223 This made the inclusion of draft principle 16 essential. In their view, if the
environment, or part thereof, became an object of reprisals, it would be tantamount to an
attack against the civilian population, civilians or civilian objects, and would thus violate
the laws of armed conflict.
(4) In this context, some members took the view that the prohibition of reprisals forms
part of customary international law. However, other members questioned the existence of
this rule, and were of the view that the rule exists only as a treaty obligation under
Additional Protocol I.1224
(5) Concerns were raised that including draft principle 16 as a copy of article 55,
paragraph 2, of Additional Protocol I risked the draft principles going against their main
aim, which is to apply generally. Although Additional Protocol I is widely ratified and thus
the prohibition of reprisals against the environment is recognized by many States,
Additional Protocol I is not universally ratified. 1225 Some members were concerned that
reproducing article 55, paragraph 2, verbatim in draft principle 16 could therefore be
misinterpreted as trying to create a binding rule on non-State parties. It was also pointed out
in this regard that paragraph 2 of article 55 has been subject to reservations and declarations
by some States parties.1226
1223 Additional Protocol I, art. 51, in particular para. 6. See C. Pilloud and J. Pictet, “Article 51: Protection
of the civilian population” in ICRC Commentary on the Additional Protocols …, Sandoz and others
(footnote 976 above), p. 615, para. 1923.
1224 For a discussion on the customary law status of reprisals, see Henckaerts and Doswald-Beck,
Customary International Humanitarian Law … (footnote 969 above), rules 147–149, pp. 523–530; Y.
Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law
and its Interaction with International Human Rights Law (Leiden, Martinus Nijhoff, 2009), pp. 285–
289; M. A. Newton, “Reconsidering reprisals” Duke Journal of Comparative and International Law,
vol. 20 (2010), pp. 361–388; S. Darcy, Collective Responsibility and Accountability under
International Law (Leiden, Brill, 2007) pp. 154–156.
1225 There are currently 174 State parties to Additional Protocol I. See the ICRC website
(www.icrc.org/ihl/INTRO/470 (accessed on 8 July 2019)).
1226 For a description of declarations, statements and reservations made by States in connection with
regard to, inter alia, article 55, see A/CN.4/685, paras. 129 and 130. It should also be noted that the
United Kingdom declared that: “The obligations of Articles 51 and 55 are accepted on the basis that
any adverse party against which the United Kingdom might be engaged will itself scrupulously
observe those obligations. If an adverse party makes serious and deliberate attacks, in violation of
Article 51 or Article 52 against the civilian population or civilians or against civilian objects, or, in
violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the United
Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in
question to the extent that it considers such measures necessary for the sole purpose of compelling the
adverse party to cease committing violations under those Articles, but only after formal warning to
the adverse party requiring cessation of the violations has been disregarded and then only after a
decision taken at the highest level of government. Any measures thus taken by the United Kingdom
will not be disproportionate to the violations giving rise there to and will not involve any action
prohibited by the Geneva Conventions of 1949 nor will such measures be continued after the
violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal
warning given to an adverse party, and if that warning has been disregarded, of any measures taken as
a result.” The text of the reservation is available on the ICRC website
www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument (accessed
on 8 July 2019), at para. (m). The conditions under which belligerent reprisals against the natural
environment may be taken are partly described in United Kingdom, Ministry of Defence, The Manual
of the Law of Armed Conflict … (footnote 1222 above), paras. 16.18–16.19.1. For declarations that
relate to the understanding of whether Additional Protocol I is applicable only to conventional
weapons and not to nuclear weapons, see A/C.N/4/685, para. 130. See declarations and reservations
of Ireland: “Article 55: In ensuring that care shall be taken in warfare to protect the natural
environment against widespread, long-term and severe damage and taking account of the prohibition
of the use of methods or means of warfare which are intended or may be expected to cause such
damage to the natural environment thereby prejudicing the health or survival of the population,
Ireland declares that nuclear weapons, even if not directly governed by Additional Protocol I, remain
subject to existing rules of international law as confirmed in 1996 by the International Court of Justice
in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Ireland will
interpret and apply this Article in a way which leads to the best possible protection for the civilian
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(6) It is therefore worth summarizing the position of article 55, paragraph 2 (as a treaty
provision), as follows: the prohibition of attacks against the natural environment by way of
reprisals is a binding rule for the 174 State parties to Additional Protocol I. The extent to
which States have made declarations or reservations that are relevant to its application must
be evaluated on a case by case basis, since only a few States have made an explicit
reference to paragraph 2 of article 55.1227
(7) Another contentious issue raised which merits discussion is the fact that there is no
corresponding rule to article 55, paragraph 2, in common article 3 to the four Geneva
Conventions or in Additional Protocol II which explicitly prohibits reprisals in non-
international armed conflicts (including against civilians, the civilian population, or civilian
objects). The drafting history of Additional Protocol II reveals that at the time of drafting,
some States were of the view that reprisals of any kind are prohibited under all
circumstances in non-international armed conflicts. 1228 There are, however, also valid
arguments that reprisals may be permitted in non-international armed conflicts in certain
situations.1229
(8) In the light of this uncertainty, some members expressed concern that by not
differentiating between the position in international armed conflicts and non-international
armed conflicts, draft principle 16 would attempt to create a new international law rule. It
was therefore suggested that the principle be redrafted with appropriate caveats, or
excluded from the draft principles altogether.
(9) Concerning reprisals against the natural environment in particular, it is worth
mentioning that the International Criminal Tribunal for the Former Yugoslavia considered
that the prohibition against reprisals against civilian populations constitutes a customary
international law rule “in armed conflicts of any kind”.1230 As the environment should be
considered as a civilian object unless parts of it becomes a military objective, some
members expressed the view that reprisals against the environment in non-international
armed conflicts are prohibited.
(10) Given the controversy surrounding the formulation of this draft principle, various
suggestions were made regarding ways in which the principle could be rephrased to address
the issues in contention. However, it was ultimately considered that any formulation other
than the one adopted could be interpreted as weakening the existing rule under the law of
armed conflict. This would be an undesirable result, given the fundamental importance of
the existing rules of the law of armed conflict. Despite the concerns raised during drafting,
including a draft principle on the prohibition of reprisals against the natural environment
population.” The declaration is available on the ICRC website at

www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?documentId=27BBCD34A4918BFBC1256402003F
B43A&action=OpenDocument (accessed on 8 July 2019). It should also be noted that in the Legality
of the Threat or Use of Nuclear Weapons (see footnote 1162 above), at p. 246, para. 46, the Court
stated that: “Certain States asserted that the use of nuclear weapons in the conduct of reprisals would
be lawful. The Court does not have to examine, in this context, the question of armed reprisals in time
of peace, which are considered to be unlawful. Nor does it have to pronounce on the question of
belligerent reprisals save to observe that in any case any right of recourse to such reprisals would, like
self-defence, be governed inter alia by the principle of proportionality.”
1227 France, Ireland and the United Kingdom.
1228 See Official Records of the Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts (Geneva, 1974–1977) vol. IX,
available from www.loc.gov/rr/frd/Military_Law/RC-dipl-conference-records.html (accessed on 8
July 2019), most notably the statements made by Canada (p. 428), Greece (p. 429), the Islamic
Republic of Iran (p. 429), Iraq (p. 314), Mexico (p. 318). See also Henckaerts and Doswald-Beck,
Customary International Humanitarian Law … (footnote 969 above), rule 148, p. 528.
1229 See V. Bílková, “Belligerent reprisals in non-international armed conflicts”, International and
Comparative Law Quarterly, vol. 63 (2014), p. 31; S. Sivakumaran, The Law of Non-International
Armed Conflict (Oxford, Oxford University Press, 2012), pp. 449–457.
1230 Prosecutor v. Duško Tadić, case No. IT-94-1-A72, Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, of 2 October 1995, International Criminal Tribunal for the Former
Yugoslavia, Judicial Reports 1994–1995, vol. I, p. 353, at pp. 475–478, paras. 111–112. See also in
general Henckaerts and Doswald-Beck, Customary International Humanitarian Law … (footnote 969
above), pp. 526–529.
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was viewed as being particularly relevant and necessary, given that the overall aim of the
draft principles is to enhance environmental protection in relation to armed conflict. In the
light of the comments made above, the inclusion of this draft principle can be seen as
promoting the progressive development of international law, which is one of the mandates
of the Commission.
Principle 17
Protected zones
An area of major environmental and cultural importance designated by
agreement as a protected zone shall be protected against any attack, as long as it
does not contain a military objective.
Commentary
(1) This draft principle corresponds with draft principle 4. It provides that an area of
major environmental and cultural importance designated by agreement as a protected zone
shall be protected against any attack, as long as it does not contain a military objective.
Unlike the earlier draft principle, it only covers areas that are designated by agreement.
There has to be an express agreement on the designation. Such an agreement may have
been concluded in peacetime or during armed conflict. The reference to the term
“agreement” should be understood in its broadest sense as including mutual as well as
unilateral declarations accepted by the other party, treaties and other types of agreements,
as well as agreements with non-State actors. Such zones are protected from attack during
armed conflict. The reference to the word “contain” in the phrase “as long as it does not
contain a military objective” is intended to denote that it may be the entire zone, or only
parts thereof. Moreover, the protection afforded to a zone ceases if one of the parties
commits a material breach of the agreement establishing the zone.
(2) As mentioned above, a designated area established in accordance with draft
principle 4 may lose its protection if a party to an armed conflict has military objectives
within the area, or uses the area to carry out any military activities during an armed conflict.
The term “military objective” in the present draft principle frames the description of
military objectives as “so long as it does not contain a military objective”, which is
different from draft principle 13, paragraph 3, which stipulates “unless it has become a
military objective”. The relationship between these two principles is that principle 17 seeks
to enhance the protection established in draft principle 13, paragraph 3.
(3) The conditional protection is an attempt to strike a balance between military,
humanitarian, and environmental concerns. This balance mirrors the mechanism for
demilitarized zones as established in article 60 of Additional Protocol I to the Geneva
Conventions. Article 60 states that if a party to an armed conflict uses a protected area for
specified military purposes, the protected status shall be revoked.
(4) Under the 1954 Hague Convention referred to above, State parties are similarly
under the obligation to not destroy property that has been identified as cultural property in
accordance with article 4 of the Convention. However, the protection can only be granted
as long as the cultural property is not used for military purposes.
(5) The legal implications of designating an area as a protected area will depend on the
origin and contents, as well as the form, of the proposed protected area. For example, the
pacta tertiis rule will limit the application of a formal treaty to the parties. As a minimum,
the designation of an area as a protected zone could serve to alert parties to an armed
conflict that they should take this into account when applying the principle of
proportionality or the principle of precautions in attack. In addition, preventive and
remedial measures may need to be tailored so as to take the special status of the area into
account.
Principle 18
Prohibition of pillage
Pillage of natural resources is prohibited.
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Commentary
(1) The purpose of draft principle 18 is to restate the prohibition of pillage as well as its
applicability to natural resources. Illegal exploitation of natural resources has been a driving
force for many, in particular non-international, armed conflicts in recent decades,1231 and
has caused severe environmental strain in the affected areas. 1232 In this context, the
prohibition of pillage was identified as one of the provisions of the law of armed conflict
that provide protection to the environment in armed conflict.
(2) Pillage is an established violation of the law of armed conflict and a war crime.
Geneva Convention IV contains an absolute prohibition of pillage, both in the territory of a
party to an armed conflict, and in an occupied territory. 1233 Additional Protocol II to the
Geneva Conventions confirms the applicability of this general prohibition in non-
international armed conflicts meeting the criteria set out in the Protocol and, in that context,
“at any time and in any place whatsoever”. 1234 The prohibition has been widely
incorporated into national legislation as well as in military manuals. 1235 There is
considerable case law from both post-Second World War and modern international criminal
tribunals confirming the criminal nature of pillage. 1236 The war crime of pillaging is also
1231 According to the United Nations Environment Programme, 40 per cent of internal armed conflicts
over the past 60 years were related to natural resources, and since 1990, at least 18 armed conflicts
have been fuelled directly by natural resources. See Renewable Resources and Conflict: Toolkit and
Guidance for Preventing and Managing Land and Natural Resources Conflicts (New York, United
Nations Interagency Framework Team for Preventive Action, 2012), p. 14. Available at
www.un.org/en/land-natural-resources-conflict/renewable-resources.shtml (accessed on 8 July 2019).
1232 Interim report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other
Forms of Wealth of the Democratic Republic of the Congo (S/2002/565), para. 52. See also United
Nations Environment Programme, The Democratic Republic of the Congo: Post-Conflict
Environmental Assessment. Synthesis Report for Policy Makers (Nairobi, United Nations
Environment Programme, 2011), pp. 26–28, available at http://wedocs.unep.org/handle/20.500.11822
/22069 (accessed on 8 July 2019); Report of the Panel of Experts pursuant to paragraph 25 of Security
Council resolution 1478 (2003) concerning Liberia (S/2003/779), para. 14; United Nations
Environment Programme, Desk Study on the Environment in Liberia (footnote 1058 above), pp. 16–
18 and 42–51; C. Nellemann et al. (eds.), The Rise of Environmental Crime – A Growing Threat to
Natural Resources Peace, Development and Security (United Nations Environment Programme–
INTERPOL, 2016), p. 69.
1233 Geneva Convention IV, art. 33, para. 2. See also Geneva Convention I, art. 15, first para., according
to which “At all times, and particularly after an engagement, Parties to the conflict shall, without
delay, take all possible measures to search for and collect the wounded and sick, to protect them
against pillage”.
1234 Additional Protocol II, art. 4, para. 2 (g). See also African Charter on Human and Peoples’ Rights, art.
21, para. 2: “In case of spoliation, the dispossessed people shall have the right to the lawful recovery
of its property as well as to an adequate compensation”. Furthermore, the Lusaka Protocol of the
International Conference on the Great Lakes Region reproduces the same provision, see Protocol
Against the Illegal Exploitation of Natural Resources of the International Conference on the Great
Lakes Region art. 3, para. 2.
rule 52, “Pillage is prohibited”, pp. 182–185.
1236 See, e.g., In re Krupp and Others, Judgment of 30 June 1948, Trials of War Criminals before the
Nürnberg Military Tribunals, Vol. IX, p. 1337–1372; U.S.A. v. von Weizsäcker et al. (Ministries
case), Trials of War Criminals before the Nürnberg Military Tribunals, vol. XIV, p. 741; Prosecutor
v. Goran Jelisić, Case No. IT-95-10-T, Judgment, Trial Chamber, International Criminal Tribunal for
the Former Yugoslavia, 14 December 1999; The Prosecutor v. Zejnil Delalić, Zdravko Mucić a/k/a
“Pavo”, Hazim Delić and Esad Landžo a/k/a “Zenga”, Case No. IT-96-21-T, Judgement,
International Criminal Tribunal for the Former Yugoslavia, 16 November 1998, and Sentencing
Judgement, International Criminal Tribunal for the Former Yugoslavia, 9 October 2001; Prosecutor
v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (with Declaration of Judge Shahabuddeen),
Trial Chamber, International Criminal Tribunal for the Former Yugoslavia, 3 March 2000, Judicial
Reports 2000; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement,
Trial Chamber, International Criminal Tribunal for the Former Yugoslavia, 26 February 2001;
Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Case No. SCSL-04-15-T-1234,
Judgment, Trial Chamber, Special Court for Sierra Leone, 2 March 2009; Prosecutor v. Charles
Ghankay Taylor, Case No. SCSL-03-1-T, Judgment, 18 May 2012 (Taylor Trial Judgment);
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prosecutable under the Rome Statute, in both international and non-international

conflicts.1237 The prohibition of pillage has been found to constitute a customary rule of
international law.1238
(3) According to the ICRC commentary, the prohibition applies to all categories of
property, whether public or private. 1239 The scope of the present draft principle is limited to
the pillage of natural resources, which is a common phenomenon in armed conflicts, and
one that leads to severe environmental impacts. While such pillage only applies to natural
resources that can be subject to ownership and constitute “property”, this requirement is
easily met for high-value natural resources. The prohibition covers pillage of natural
resources, whether owned by the State, communities or private persons. 1240 The
applicability of the prohibition of pillage to natural resources has been confirmed by the
International Court of Justice, which found in the Armed Activities judgment, that Uganda
was internationally responsible “for acts of looting, plundering and exploitation of the
[Democratic Republic of the Congo]’s natural resources” committed by members of the
Ugandan Armed Forces in the territory of the Democratic Republic of the Congo.1241
(4) Pillage is a broad term that applies to any appropriation of property in armed conflict
that violates the law of armed conflict. At the same time, the law of armed conflict provides
a number of exceptions under which appropriation or destruction of property is lawful.1242
According to the ICRC commentaries, the prohibition of pillage covers both organized
pillage and individual acts, 1243 whether committed by civilians or military personnel. 1244
Acts of pillage do not necessarily involve the use of force or violence.1245
(5) The terminology used for illegal appropriation of property, including natural
resources, in armed conflict has not been consistent. The International Court of Justice, in
the Armed Activities judgment, referred to “looting, plundering and exploitation”, 1246 the
Statute of the International Criminal Tribunal for the Former Yugoslavia referred to
“plunder”, 1247 while the African Charter uses the term “spoliation”. 1248 Research shows,
however, that the terms “pillage”, “plunder”, “spoliation” and “looting” have a common
Prosecutor against Charles Ghankay Taylor, Case No. SCSL-03-01-A, Judgment, Appeals Chamber,
Special Court for Sierra Leone, 26 September 2013.
1237 Rome Statute of the International Criminal Court (Rome, 17 July 1998), United Nations, Treaty
Series, vol. 2187, No. 38544, p. 3, art. 8, para. 2 (b) (xvi) and (e) (v).
1238 Henckaerts and Doswald-Beck, Customary International Humanitarian Law … (footnote 969 above)
rule 52, pp. 182–185.
1239 ICRC commentary (1987) on Additional Protocol II, art. 4, para. 2 (g), para. 4542 of the commentary.
See also ICRC commentary (1958) to Geneva Convention IV, art. 33, para. 2.
1240 Property rules have also been widely used at the national level “for settling disputes concerning
access, use and control of resources” and constitute therefore “a critical mechanism for environmental
protection”. T. Hardman Reis, Compensation for Environmental Damage under International Law.
The Role of the International Judge (Alphen aan den Rijn, Wolters Kluwer, 2011), p. 13.
1241 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, I.C.J. Reports 2005, p. 168, at p. 253, para. 250.
1242 For capture of an adversary’s movable public property that can be used for military purposes, see
Geneva Convention I, art. 50. Adversary’s property can also be lawfully destroyed or appropriated if
required by imperative military necessity; see the Hague Regulations (1907), art. 23 (g). See also
Henckaerts and Doswald-Beck, Customary International Humanitarian Law … (footnote 969 above),
rule 50, pp. 175–177. For the lawful use by an Occupying Power of the resources of the occupied
territory for the maintenance and needs of the army of occupation, see commentary to draft principle
21 below.
1243 ICRC commentary (1987) on Additional Protocol II, art. 4, para. 2 (g), para. 4542 of the commentary.
See also ICRC commentary (1958) on Geneva Convention IV, art. 33, para. 2.
1244 ICRC commentary (2016) on Geneva Convention I, art. 15, para. 1495.
1245 Ibid., para. 1494.
1246 Armed Activities on the Territory of the Congo (see footnote 1241 above), para. 248.
1247 Art. 3 (e). Originally adopted by Security Council resolution 827 (1993) on 25 May 1993. The
updated Statute is available at www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf
1248 African Charter on Human and Peoples’ Rights, art. 21, para. 2.
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legal meaning and been used interchangeably by international courts and tribunals. 1249 The
Nürnberg Judgment thus used “pillage” and “plunder” as synonyms. 1250 While the post-
Second World War jurisprudence preferred the term “spoliation”, it confirmed that the term
was synonymous with “plunder”, which was the term appearing in Control Council Law No.
10. 1251 The jurisprudence of the modern international criminal courts and tribunals has
further confirmed that “pillage”, “plunder” and “looting” all signify unlawful appropriation
of public or private property in armed conflict. 1252
(6) The term “pillage” has been used in the Hague Regulations 1253 and Geneva
Convention IV, 1254 Additional Protocol II 1255 and the Rome Statute. 1256 The Nürnberg
Charter1257 used the term “plunder”. The concept of pillage has been defined in the ICRC
Commentaries to the Geneva Conventions and Additional Protocol II, as well as in the
jurisprudence of the international criminal tribunals. It has therefore been deemed
appropriate to use the term “pillage” in the draft principle.
(7) Pillage of natural resources is part of the broader context of illegal exploitation of
natural resources that thrives in areas of armed conflict and in post-armed conflict situations.
The Security Council and the General Assembly have drawn attention in this regard to the
connections between transnational criminal networks, terrorist groups and armed conflicts,
including in relation to illicit trade in natural resources.1258 Frequently characterized by poor
governance, widespread corruption and weak protection of resource rights, post-armed
conflict situations are vulnerable to exploitation through transnational environmental
crime. 1259 “Illegal exploitation of natural resources”, as used in the relevant Security
Council resolutions1260 is a general notion that may cover the activities of States, non-State
1249 J.G. Stewart, Corporate War Crimes. Prosecuting the Pillage of Natural Resources (Open Society
Foundations, 2011), pp. 15–17.
1250 Trial of the Major War Criminals before the International Military Tribunal, vol. I (Washington
D.C., Nürnberg Military Tribunals, 1945), p. 228.
1251 See United States v. Krauch et al. in Trials of War Criminals before the Nuernberg Military Tribunals
(The I.G. Farben Case), vols. VII-VIII (Washington D.C., Nürnberg Military Tribunals, 1952), p.
1081, at p. 1133.
1252 Prosecutor v. Delalić et al., Case No. IT-96-21-T, Judgment, 16 November 1998 (see footnote 1236
above), para. 591: “the offence of the unlawful appropriation of public and private property in armed
conflict has varyingly been termed ‘pillage’, ‘plunder’ and ‘spoliation’. … The Trial Chamber
reaches this conclusion on the basis of its view that [plunder], as incorporated in the Statute of the
International Criminal Tribunal, should be understood to embrace all forms of unlawful appropriation
of property in armed conflict for which individual criminal responsibility attaches under international
law, including those acts traditionally described as ‘pillage’”. See also Prosecutor v. Alex Tamba
Brima et al., Case No. SCSL-04-16-T, Judgment, Special Court for Sierra Leone, 20 June 2007, para.
751; and Prosecutor v. Blagoje Simić, Case No. IT-95-9-T, Judgment, Trial Chamber, International
Criminal Tribunal for the Former Yugoslavia, 17 October 2003, para. 98.
1253 Arts. 28 and 47 of the 1907 Hague Regulations.
1254 Art. 33, para. 2, of Geneva Convention IV.
1255 Art. 4, para. 2(g), of Additional Protocol II.
1256 Rome Statute, art. 8, para. 2 (b) (xvi), and art. 8, para. 2 (e) (v), referring to “pillaging”.
1257 Nürnberg Charter, art. 6 (b).
1258 Security Council resolution 2195 (2014) of 19 December 2014, para. 3; General Assembly resolution
69/314 of 30 July 2015, paras. 2–5. See also Security Council resolutions 2134 (2014) of 28 January
2014 and 2136 (2014) of 30 January 2014 on the Security Council’s sanctions against persons and
entities involved in wildlife poaching and trade. See also United Nations Environmental Assembly
resolution 2/15 of 27 May 2016 on “Protection of the environment in areas affected by armed
conflict” (UNEP/EA.2/Res.15), para. 4, and resolution 3/1 of 6 December 2017 on “Pollution
mitigation and control in areas affected by armed conflict or terrorism”, paras. 2–3.
1259 Corruption has been identified as the most important enabling factor behind illegal trade in wildlife
and timber. See Nellemann et al., The Rise of Environmental Crime … (footnote 1232 above), p. 25:
transnational environmental crime thrives in permissive environments. See also C. Cheng and D.
Zaum, “Corruption and the role of natural resources in post-conflict transitions”, in C. Bruch, C.
Muffett, and S.S. Nichols (eds.), Governance, Natural Resources, and Post-Conflict Peacebuilding
(Abingdon, Earthscan from Routledge, 2016), pp. 461–480.
1260 See, e.g., Security Council resolution 1457 (2003) of 24 January 2003, para. 2, in which the Council
“[s]trongly condemns the illegal exploitation of the natural resources of the Democratic Republic of
the Congo”.
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armed groups, or other non-State actors, including private individuals. Accordingly, the
notion may refer to illegality under international or national law. While the notion of
“illegal exploitation of natural resources” is partly overlapping with the concept of pillage,
it has not been defined 1261 and may also refer to environmental crime, whether in times of
armed conflict or in times of peace. This broader context underscores the application of the
prohibition of pillage to natural resources.
(8) Draft principle 18 is located in Part Three containing draft principles applicable
during an armed conflict. It also applies in situations of occupation.
Principle 19
Environmental modification techniques
In accordance with their international obligations, States shall not engage in
military or any other hostile use of environmental modification techniques having
widespread, long-lasting or severe effects as the means of destruction, damage or
injury to any other State.
Commentary
(1) Draft principle 19 has been modelled on article 1, paragraph 1, of the 1976
Convention on the Prohibition of Military or Any Hostile Use of Environmental
Modification Techniques.1262 The Convention prohibits military or any other hostile use of
environmental modification techniques having widespread, long-lasting or severe
effects.1263 Environmental modification techniques are defined in the convention as “any
technique for changing – through the deliberate manipulation of natural processes – the
dynamics, composition or structure of the Earth, including its biota, lithosphere,
hydrosphere and atmosphere, or of outer space”. 1264 The present draft principle uses the
concept of environmental modification technique in the same sense.
(2) The mention of international obligations in the draft principle refers to the treaty
obligations of States parties to the Convention and, to the extent that the prohibition
overlaps with a customary obligation that, according to the ICRC study on customary
international humanitarian law, prohibits the use of the environment as a weapon, the
obligations under customary international law. To quote the ICRC study, “there is
sufficiently widespread, representative and uniform practice to conclude that the destruction
of the natural environment may not be used as a weapon”, and this irrespective of whether
the provisions of the Convention are themselves customary. 1265 The ICRC Guidelines for
Military Manuals and Instructions on the Protection of the Environment in Times of Armed
Conflict also contain a guideline based on articles I and II of the Convention. 1266
(3) The Convention does not spell out clearly whether the prohibition of the use of
environmental modification techniques could be applicable in a non-international armed
conflict. The formulation of paragraph 1 of article I only prohibits environmental
modification that causes damage to another State Party to the Convention. It has been
argued that this condition could nevertheless also be fulfilled in a non-international armed
conflict provided that a hostile use of an environmental modification technique by a State in
the context of such a conflict causes environmental or other damage in the territory of
another State party. 1267 The environmental modification techniques addressed in the
1261 The term “illegal exploitation of natural resources” appears in Lusaka Protocol of the International
Conference on the Great Lakes Region, art. 17, para. 1, but has not been defined.
1262 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques (New York, 10 December 1976), United Nations, Treaty Series, vol. 1108, No. 17119, p.
151.
1263 Ibid., art. I, para. 1.
1264 Ibid., art. II.
above), p. 156.
1266 ICRC, Guidelines for Military Manuals and Instructions on the Protection of the Environment in
Times of Armed Conflict (see footnote 973 above), guideline 12.
above) rule 44, commentary, p. 148: “it can be argued that the obligation to pay due regard to the
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Convention – capable of causing “earthquakes, tsunamis, an upset in the ecological balance

of a region, changes in weather patterns (clouds, precipitation, cyclones of various types
and tornadic storms); changes in climate patterns; changes in ocean currents; changes in the
state of the ozone layer, and changes in the state of the ionosphere”1268 – could well be
expected to produce transboundary effects.
(4) The Convention only addresses the hostile or military use of environmental
modification techniques by States, excluding hostile use of such techniques by non-State
actors. The ICRC study on customary international humanitarian law concludes that the
prohibition of the destruction of the natural environment as a weapon is a norm of
customary international law “applicable in international armed conflicts and arguably also
in non-international armed conflicts”.1269
(5) Draft principle 19 has been located in Part Three, which contains draft principles
applicable during armed conflict. This location reflects the most likely situations in which
the Convention would be applied, even though the prohibition of the convention is broader,
and also covers other hostile uses of environmental modification techniques.
(6) The Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques deserves particular attention in the context of the
present draft principles as the first and, so far, the only international treaty to specifically
address means and methods of environmental warfare. The inclusion of draft principle 19 in
the set of draft principles is without prejudice to the existing conventional or customary
rules of international law regarding specific weapons that have serious impacts on the
environment.
Part Four
Introduction
Commentary
(1) The three draft principles related to situations of occupation are placed in a separate
Part Four. The new category of draft principles is not intended as a deviation from the
temporal approach chosen for the topic but as a practical solution reflecting the great
variety of circumstances that may qualify as a situation of occupation. While military
occupation under the law of armed conflict is a specific form of international armed
conflict, 1270 situations of occupation differ from armed conflicts in many respects. Most
notably, occupations are typically not characterized by active hostilities and can even take
place in situations in which the invading armed forces meet no armed resistance. 1271 A
environment also applies in non-international armed conflicts if there are effects in another State.”
See also Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd
ed. (Cambridge, Cambridge University Press, 2010), p. 243, referring to cross-border damage caused
by environmental modification techniques. See also T. Meron, “Comment: protection of the
environment during non-international armed conflicts”, in J.R. Grunawalt, J.E. King and R.S.
McClain (eds.), International Law Studies, vol. 69, Protection of the Environment during Armed
Conflicts (Newport, Rhode Island, Naval War College, 1996), pp. 353–358, stating, at p. 354, that the
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques “is applicable in all circumstances”.
1268
Understanding relating to article II, Official Records of the General Assembly, Thirty-first Session,
Supplement No. 27 (A/31/27), p. 92.
explanation of rule 45, p. 151. See also Part 2 of the ICRC Customary International Humanitarian
Law Study (available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule45) and
related practice.
1270 It is worth recalling in this context that the end of an international armed conflict is determined by the
general close of military operations or, in the case of occupation, the termination of the occupation.
See Geneva Convention IV, art. 6, and Additional Protocol I, art. 3 (b). See also United Kingdom,
Ministry of Defence, The Manual of the Law of Armed Conflict … (footnote 1222 above), p. 277,
para. 11.8, and R. Kolb and S. Vité, Le droit de l’occupation militaire. Perspectives historiques et
enjeux juridiques actuels (Brussels, Bruylant, 2009), p. 166.
1271 Geneva Convention IV, art. 2.
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stable occupation shares many characteristics with a post-conflict situation and may with
time even come to “approximating peacetime” conditions.1272 Occupations can nevertheless
also be volatile and conflict-prone. The Occupying Power may confront armed resistance
during the occupation and even temporarily lose control of part of the occupied territory
without this affecting the characterization of the situation as one of occupation. 1273
Furthermore, the beginning of an occupation does not necessarily coincide with the
beginning of an armed conflict, nor is there any necessary concurrence between the
cessation of active hostilities and the termination of an occupation. Parallels can therefore
be drawn between occupations and armed conflicts, on the one hand, and occupations and
post-conflict circumstances, on the other, depending on the nature of the occupation.
(2) In spite of this variety, all occupations display certain common characteristics,
namely that the authority over a certain territory is transferred from a territorial State,
without its consent, to the Occupying Power. The established understanding of the concept
of occupation is based on article 42 of the Hague Regulations, 1274 which stipulates that a
territory is considered occupied “when it is actually placed under the authority of the hostile
army. The occupation extends only to the territory where such authority has been
established and can be exercised.” According to the judgment in Armed Activities on the
Territory of the Congo case, it was necessary “that the Ugandan armed forces in the
[Democratic Republic of the Congo] were not only stationed in particular locations but also
that they had substituted their own authority for that of the Congolese Government”.1275
Authority in this context is a fact-based concept: occupation “does not transfer the
sovereignty to the occupant, but simply the authority or power to exercise some of the
rights of sovereignty”.1276
(3) Once established in the territory of an occupied State, at least when the whole
territory is occupied, the temporary authority of an Occupying Power extends to the
adjacent maritime areas over which the territorial State is entitled to exercise sovereign
rights. Similarly, the authority of the Occupying Power may extend to the airspace over the
occupied territory and over the territorial sea. Such authority underscores the obligation of
the Occupying Power to take appropriate steps to prevent transboundary environmental
harm.1277
(4) The status of a territory as occupied is often disputed, including in situations in
which the Occupying Power relies on a local surrogate, transitional government or rebel
1272 A. Roberts, “Prolonged military occupation: the Israeli-occupied territories since 1967”, American
Journal of International Law, vol. 84 (1990), pp. 44–103, p. 47. The article mentions several cases of
occupations lasting more than five years in the period since the Second World War.
1273 ICRC commentary (2016) to Geneva Convention I, art. 2, para. 302. See, similarly, United Kingdom,
para. 11.7.1.
1274 Hague Regulations, art. 42. The definition contained in art. 42 has been confirmed by the
International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia,
which have referred to it as the exclusive standard for determining the existence of a situation of
occupation under the law of armed conflict. See, respectively, Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004,
p. 136, at p. 167, para. 78, and Prosecutor v. Mladen Naletilić, aka “TUTA” and Vinko Martinović,
aka “ŠTELA”, Case No. IT-98-34-T, Judgment of 31 March 2003, Trial Chamber, para. 215. See also
ICRC commentary (2016) to Geneva Convention I, art. 2, para. 298.
1275 Armed Activities on the Territory of the Congo (see footnote 1241 above), para. 173; see also United
Kingdom, Ministry of Defence, The Manual of the Law of Armed Conflict … (footnote 1222 above),
p. 275, para. 11.3.
1276 United States, Department of Defence, Law of War Manual (see footnote 1222 above), sect. 11.4, pp.
772–774. See also H.-P. Gasser and K. Dörmann, “Protection of the civilian population”, in D. Fleck
(ed.), The Handbook of International Humanitarian Law (footnote 1165 above), pp. 231–320, at p.
274, para. 529.
1277 Manual of the Laws of Naval War (Oxford, 9 August 1913), sect. VI, art. 88. Available from
https://ihl-databases.icrc.org/ihl/INTRO/265?OpenDocument (accessed on 8 July 2019). See also Y.
Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009), p.
47; E. Benvenisti, The International Law of Occupation, 2nd ed. (Oxford University Press, 2012), p.
55, referring to the practice of several occupants, and M. Sassòli, “The concept and the beginning of
occupation”, in A. Clapham, P. Gaeta and M. Sassòli (eds.), The 1949 Geneva Conventions: A
Commentary (Oxford University Press, 2015), pp. 1389–1419, at p. 1396.
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group for the purposes of exercising control over the occupied territory. 1278 It is widely
acknowledged that the law of occupation applies to such cases provided that the local
surrogate acting on behalf of a State exercises effective control over the occupied
territory.1279 The possibility of such an “indirect occupation” has been acknowledged by the
International Criminal Tribunal for the Former Yugoslavia, 1280 the International Court of
Justice,1281 and the European Court of Human Rights. 1282
(5) The law of occupation is applicable to situations that fulfil the factual requirements
of effective control of a foreign territory irrespective of whether the Occupying Power
invokes the legal regime of occupation. 1283 It also extends to territories with unclear status
that are placed under foreign rule.1284 Similarly, and in accordance with the fundamental
distinction between jus ad bellum and jus in bello, the law of occupation applies equally to
all occupations, whether or not they result from a use of force that is lawful in the sense of
jus ad bellum.1285 The law of occupation may also be applicable to territorial administration
by an international organization, provided that the situation meets the criteria of article 42
of the Hague Regulations.1286 Even where this is not the case, as in operations relying on the
1278 Roberts, “Prolonged military occupation …” (see footnote 1272 above), p. 95; Gasser and Dörmann,
“Protection of the civilian population” (see footnote 1276 above), p. 272.
1279 Benvenisti, The International Law of Occupation (see footnote 1277 above), pp. 61–62. Similarly,
ICRC, “Occupation and other forms of administration of foreign territory”, Report of an expert
meeting (2012), pp. 10 and 23 (the theory of “indirect effective control” was met with approval). See
also United Kingdom, Ministry of Defence, The Manual of the Law of Armed Conflict … (footnote
1222 above), p. 276, para. 11.3.1 (“likely to be applicable”). See also Kolb and Vité, Le droit de
l’occupation militaire … (footnote 1270 above), p. 181, as well as ICRC commentary (2016) to
Geneva Convention I, art. 2, paras. 328–332.
1280 See Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Trial Judgment, 7 May 1997, Judicial Reports
1997, para. 584, which refers to circumstances, in which “the foreign Power ‘occupies’ or operates in
certain territory solely through the acts of local de facto organs or agents”. See also Prosecutor v.
Tihomir Blaskić, Case No. IT-95-14-T, Judgment, 3 March, 2000, Judicial Reports 2000, paras. 149–
150.
1281 The Court seems to have accepted in the Armed Activities case that Uganda would have been an
occupying power in the areas controlled and administered by Congolese rebel movements, had these
non-State armed groups been “under the control” of Uganda. See Armed Activities on the Territory of
the Congo (footnote 1241 above), p. 231, para. 177. See also the separate opinion of Judge
Kooijmans, ibid., p. 317, para. 41.
1282 The European Court of Human Rights has confirmed that the obligation of a State party to the
European Convention on Human Rights to secure the rights and freedoms set out in the Convention in
an area outside its national territory, over which it exercises effective control, “derives from the fact
of such control whether it be exercised directly, through its armed forces, or through a subordinate
local administration”, see Loizidou v. Turkey, Judgment (Merits), 18 December 1996, Reports of
Judgments and Decisions 1996-VI, para. 52.
1283 The Hostages Trial: Trial of Wilhelm List and Others, Case No. 47, United States Military Tribunal at
Nuremberg, Law Reports of Trial of War Criminals, vol. VIII (London, United Nations War Crimes
Commission, 1949, London), p. 55: “[w]hether an invasion has developed into an occupation is a
question of fact”. See also Armed Activities on the Territory of the Congo (footnote 1241 above), p.
230, para. 173; Naletilić and Martinović (footnote 1274 above), para. 211; and ICRC commentary
(2016) to Geneva Convention I, art. 2, para. 300.
1284 Legal Consequences of the Construction of a Wall (see footnote 1274 above), pp. 174–175, para. 95.
1285 See ICRC, “Occupation and other forms of administration of foreign territory” (footnote 1279 above),
Foreword by K. Dörmann, p. 4. Similarly, the war crime trials after the Second World War relied on
and interpreted the Hague Regulations and customary law.
1286 M. Sassòli, “Legislation and maintenance of public order and civil life by Occupying Powers”,
European Journal of International Law, vol. 16 (2005), pp. 661–694, at p. 688; T. Ferraro, “The
applicability of the law of occupation to peace forces”, ICRC and International Institute of
Humanitarian Law, International Humanitarian Law, Human Rights and Peace Operations, G.L.
Beruto (ed.), 31st Round Table on Current Problems of International Humanitarian Law, San Remo,
4–6 September 2008, Proceedings, pp. 133–156; D. Shraga, “The applicability of international
humanitarian law to peace operations, from rejection to acceptance”, ibid. pp. 90–99; S. Wills,
“Occupation law and multi-national operations: problems and perspectives”, British Yearbook of
International Law, vol. 77 (2006), pp. 256–332, Benvenisti, The International Law of Occupation
(see footnote 1277 above), p. 66; See also ICRC, “Occupation and other forms of administration of
foreign territory” (footnote 1279 above), pp. 33–34. See, however, also Dinstein, The International
Law of Belligerent Occupation (footnote 1277 above), p. 37 for a more reserved view.
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consent of the territorial State, the law of occupation may provide guidance and inspiration
for international territorial administration entailing the exercise of functions and powers
over a territory that are comparable to those of an Occupying Power under the law of armed
conflict. 1287 The term “Occupying Power” as used in the present draft principles is
sufficiently broad to cover such cases.
(6) While the type and duration of occupation do not affect the applicability of the law
of occupation as lex specialis, the obligations of the Occupying Power under the law of
occupation are, to a certain extent, context specific. As has been pointed in the ICRC
commentary to common article 2 of the Geneva Conventions, negative obligations – mostly
prohibitions – under the law of occupation apply immediately, whereas the implementation
of positive obligations depends on “the level of control exerted, the constraints prevailing in
the initial phases of the occupation, and the resources available to the foreign forces”.1288
Certain flexibility is thus recognized in the implementation of the law of occupation, and
the exact scope of the respective obligations depends on the nature and duration of the
occupation. In other words, the responsibilities falling on the Occupying Power are
“commensurate with the duration of the occupation”. 1289 Furthermore, while protracted
occupations remain governed by the law of occupation, other bodies of law, such as human
rights law and international environmental law, gain more importance as time goes by.
(7) Given the variety of different situations of occupation, the draft principles in Parts
Two, Three and Five apply mutatis mutandis to situations of occupation. For instance, the
draft principles in Part Two, which cover measures to be taken with a view to enhancing the
protection of the environment in the event of an armed conflict, remain relevant whether or
not an armed conflict takes place and whether or not it includes an occupation. To the
extent that periods of intense hostilities during an occupation are governed by the rules
concerning the conduct of hostilities, the draft principles in Part Three concerning the
protection of the environment in the “during” phase are directly relevant. Additionally, the
environment of an occupied territory continues to enjoy the protection accorded to the
environment during an armed conflict in accordance with applicable international law and
as reflected in draft principle 13. The draft principles in Part Five addressing post-armed
conflict situations would primarily have relevance for situations of prolonged occupation.
For each part, the draft principles may require some adjustment, hence the phrase mutatis
mutandis.
Principle 20
General obligations of an Occupying Power
1. An Occupying Power shall respect and protect the environment of the
occupied territory in accordance with applicable international law and take
environmental considerations into account in the administration of such territory.
2. An Occupying Power shall take appropriate measures to prevent significant
harm to the environment of the occupied territory that is likely to prejudice the
health and well-being of the population of the occupied territory.
3. An Occupying Power shall respect the law and institutions of the occupied
territory concerning the protection of the environment and may only introduce
changes within the limits provided by the law of armed conflict.
Commentary
(1) Paragraph 1 of draft principle 20 sets forth the general obligation of an Occupying
Power to respect and protect the environment of the occupied territory and to take
environmental considerations into account in the administration of such territory. The
1287
Gasser and Dörmann, “Protection of the civilian population” (see footnote 1276 above), p. 267; Arai-
Takahashi, The Law of Occupation … (see footnote 1224 above), p. 605; M. Zwanenburg,
“Substantial relevance of the law of occupation for peace operations”, ICRC and International
Institute of Humanitarian Law, International Humanitarian Law, Human Rights and Peace
Operations (see previous footnote), pp. 157–167.
1288 ICRC commentary (2016) to Geneva Convention I, art. 2, para. 322.
1289 Ibid.
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provision is based on the Occupying Power’s obligation to take care of the welfare of the
occupied population, derived from article 43 of the Hague Regulations which requires that
the Occupying Power restores and maintains public order and security in the occupied
territory.1290 The obligation to ensure that the occupied population lives as normal a life as
possible in the prevailing circumstances 1291 entails environmental protection as a widely
recognized public function of the modern State. Moreover, environmental concerns relate to
an essential interest of the territorial sovereign, 1292 which the occupying State as a
temporary authority must respect.
(2) The law of occupation is a subset of the law of armed conflict, and draft principle 20
shall be read in the context of draft principle 13, which provides that the “natural
environment shall be respected and protected in accordance with applicable international
law and, in particular, the law of armed conflict”. Both draft principles refer to the
obligation to “respect and protect” the environment in accordance with applicable
international law, although draft principle 20 does so in the more specific context of
occupation.1293
(3) The term “applicable international law” refers, in particular, to the law of armed
conflict, but also to the law of the environment and international human rights law.
Concurrent application of human rights law is of particular relevance in situations of
occupation. The International Court of Justice has notably interpreted respect for the
applicable rules of international human rights law to be part of the obligations of the
Occupying Power under article 43 of the Hague Regulations. 1294 As for the application of
1290 Hague Regulations, art. 43: “The authority of the legitimate power having actually passed into the
hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in
the country.” The authentic French text of article 43 uses the expression “l’ordre et la vie publics”,
and the provision has been accordingly interpreted to refer not only to physical safety but also to the
“‘social functions and ordinary transactions which constitute daily life’, in other words, to the entire
social and economic life of the occupied region”, see M. S. McDougal and F.P. Feliciano, Law and
Minimum World Public Order: the Legal Regulation of International Coercion (New Haven, Yale
University, 1961), p. 746. See also Dinstein, The International Law of Belligerent Occupation
(footnote 1277 above), p. 89, and Sassòli, “Legislation and maintenance of public order…” (footnote
1286 above). This interpretation is also supported by the travaux préparatoires: in the Brussels
Conference of 1874, the term “vie publique” was interpreted as referring to “des fonctions sociales,
des transactions ordinaires, qui constituent la vie de tous les jours”. See Belgium, Ministry of Foreign
Affairs, Actes de la Conférence de Bruxelles de 1874 sur le projet d’une convention internationale
concernant la guerre, p. 23. Available from https://babel.hathitrust.org/.
1291 T. Ferraro, “The law of occupation and human rights law: some selected issues”, in R. Kolb and G.
Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law (Cheltenham, Edward
Elgar, 2013), pp. 273–293, p. 279.
1292 Gabčíkovo–Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, para. 53.
1293 Reference can furthermore be made to the Rio Declaration, which states that “[t]he environment and
natural resources of people under oppression, domination and occupation shall be protected”. See the
Rio Declaration, principle 23.
1294 Armed Activities on the Territory of the Congo (see footnote 1241 above), p. 231, para. 178. See also
p. 243, para. 216, in which the Court confirms that international human rights arguments are
applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory,
“particularly in occupied territories”. See also Legal Consequences of the Construction of a Wall
(footnote 1274 above), pp. 177–181, paras. 102–113. The International Criminal Tribunal for the
Former Yugoslavia, likewise, has stated that the distinction between a phase of hostilities and a
situation of occupation “imposes more onerous duties on an occupying power than on a party to an
international armed conflict”, see Naletilić, and Martinović (footnote 1274 above), para. 214. See also
the European Court of Human Rights: Loizidou v. Turkey (Preliminary Objections), Judgment, 23
March 1995, Series A, No. 310, para. 62, and Judgment (Merits), 18 December 1996 (footnote 1282
above), para. 52; and Al-Skeini and others v. United Kingdom [Grand Chamber], Application No.
55721/07, Reports of Judgments and Decisions 2011, para. 94, in which reference was made to the
Inter-American Court of Human Rights case Mapiripán Massacre v. Colombia, Judgment, 15
September 2005, Series C, No. 134, in support of the duty to investigate alleged violations of the right
to life in situations of armed conflict and occupation. The applicability of human rights during
occupation has been further recognized by the Human Rights Committee, see, general comment No.
26 (1997) on continuity of obligations, Official Records of the General Assembly, Fifty-third Session,
Supplement No. 40, vol. I (A/53/40 (Vol. I)), annex VII, para. 4; general comment No. 29 (2001) on
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environmental law, reference can be made to the 1996 Advisory Opinion of the
International Court of Justice on Legality of the Threat or Use of Nuclear Weapons which
provides important support to the claim that customary international environmental law and
treaties on the protection of the environment continue to apply in situations of armed
conflict.1295 Similarly, the Commission’s 2011 articles on the effects of armed conflicts on
treaties indicate that treaties relating to the international protection of the environment,
treaties relating to international watercourses or aquifers, and multilateral law-making
treaties may continue in operation during armed conflict. 1296 Furthermore, to the extent that
multilateral environmental agreements address environmental problems that have a
transboundary nature, or a global scope, and the treaties have been widely ratified, it may
be difficult to conceive of suspension only between the parties to a conflict.1297 Obligations
established under such treaties protect a collective interest and are owed to a wider group of
States than the ones involved in the conflict or occupation. 1298
(4) Paragraph 1 is also related to draft principle 15 entitled “Environmental
considerations”. The reference to environmental considerations in both provisions is drawn
from and inspired by the advisory opinion of the International Court of Justice on Legality
of the Threat or Use of Nuclear Weapons. While the statement referred to in the
derogation during a state of emergency, Official Records of the General Assembly, Fifty-sixth Session,
Supplement No. 40, vol. I (A/56/40 (Vol. I)), annex VI, para. 3; general comment No. 31 (2004) on
the nature of the general legal obligation imposed on States parties to the Covenant, Official Records
of the General Assembly, Fifty-ninth Session, Supplement No. 40, vol. I (A/59/40 (Vol. I)), annex III,
para. 10. See also Committee on Economic, Social and Cultural Rights, concluding observations:
Israel, E/C.12/1/Add.69, 31 August 2001; and concluding observation: Israel, E/C.12/ISR/CO/3, 16
December 2011, as well as the report on the situation of human rights in Kuwait under Iraqi
occupation, prepared by Mr. Walter Kälin, Special Rapporteur of the Commission on Human Rights,
in accordance with Commission resolution 1991/67, E/CN.4/1992/26, 16 June 1992. Such
applicability has also been widely endorsed in scholarly writings: see, for example, Dinstein, The
International Law of Belligerent Occupation (footnote 1277 above), pp. 69–71; Kolb and Vité, Le
droit de l’occupation militaire … (footnote 1270 above), pp. 299–332; A. Roberts, “Transformative
military occupation: applying the laws of war and human rights”, American Journal of International
Law, vol. 100 (2006), pp. 580–622; J. Cerone, “Human dignity in the line of fire: the application of
international human rights law during armed conflict, occupation, and peace operations”, Vanderbilt
Journal of Transnational Law, vol. 39 (2006), pp. 1447–1510; Benvenisti, The International Law of
Occupation (see footnote 1277 above), pp. 12–16; Arai-Takahashi, The Law of Occupation …
(footnote 1224 above); N. Lubell, “Human rights obligations in military occupation”, International
Review of the Red Cross, vol. 94 (2012), pp. 317–337; Ferraro, “The law of occupation and human
rights law ...” (footnote 1291 above), pp. 273–293; and M. Bothe, “The administration of occupied
territory”, in Clapham, Gaeta and Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (see
footnote 1277 above), pp. 1455–1484. See, differently, M.J. Dennis, “Application of human rights
treaties extraterritorially in times of armed conflict and military occupation”, American Journal of
International Law, vol. 99 (2005), pp. 119–141.
1295 Legality of the Threat or Use of Nuclear Weapons (see footnote 1162 above), at pp. 241–243, paras.
27–33.
1296 Draft articles on the effects of armed conflicts on treaties, Yearbook … 2011, vol. II (Part Two), pp.
106–130, paras. 100–101. See also ICRC, Guidelines for Military Manuals and Instructions on the
Protection of the Environment in Times of Armed Conflict (footnote 973 above), guideline 5, which
states that “[i]nternational environmental agreements and relevant rules of customary law may
continue to be applicable in times of armed conflict to the extent that they are not inconsistent with
the applicable law of armed conflict. Obligations concerning the protection of the environment that
are binding on States not party to an armed conflict (e.g. neighbouring States) and that relate to areas
beyond the limits of national jurisdiction (e.g. the high seas) are not affected by the existence of the
armed conflict to the extent that those obligations are not inconsistent with the applicable law of
armed conflict”.
1297 K. Bannelier-Christakis, “International Law Commission and protection of the environment in times
of armed conflict: a possibility for adjudication?”, Journal of International Cooperation Studies, vol.
20 (2013), pp. 129 –145, at pp. 140–141; D. Dam-de Jong, International Law and Governance of
Natural Resources in Conflict and Post-Conflict Situations (Cambridge, Cambridge University Press,
2015), pp. 110–111.
1298 In the sense of art. 48, para. 1 (a), of the articles on responsibility of States for internationally
wrongful acts, the relevant commentary, para. (7), mentions environmental treaties in this context.
See Yearbook … 2001, vol. II (Part Two) and corrigendum, paras. 76–77, pp. 26–143, at p. 126.
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commentary to draft principle 15 is related to the principle of proportionality and rules of

military necessity, the Court also held more generally that “the existing international law
relating to the protection and safeguarding of the environment … indicates important
environmental factors that are properly to be taken into account in the context of the
implementation of the principles and rules of the law applicable in armed conflict”.1299 The
Arbitral Tribunal, furthermore, has stated that “where a State exercises a right under
international law within the territory of another State, considerations of environmental
protection also apply”.1300 The term “environmental considerations” as used in paragraph 1
is comparable to the phrases “environmental factors” or “considerations of environmental
protection” in that it does not have a specific content. It is a generic notion that is widely
used but rarely defined. 1301 Furthermore, environmental considerations are context
dependent 1302 and evolving: they cannot remain static over time but have to reflect the
development of the human understanding of the environment and its ecosystems. 1303
(5) Paragraph 2 provides that an Occupying Power shall take appropriate measures to
prevent significant harm to the environment of the occupied territory that is likely to
prejudice the health and well-being of the population of the occupied territory. This
provision should be read in the context of the general obligation in paragraph 1. The
purpose of paragraph 2 is to indicate that significant harm to the environment of an
occupied territory may have adverse consequences for the population of the occupied
territory, in particular with respect to the enjoyment of certain human rights, such as the
right to life, 1304 right to health, 1305 or right to food. 1306 There is in general a close link
1300 Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of
Belgium and the Kingdom of the Netherlands, 24 May 2005, Reports of International Arbitral
Awards (UNRIAA), vol. XXVII, pp. 35–131 (Iron Rhine), at paras. 222–223. See also Final Award
regarding the Indus Waters Kishenganga Arbitration between Pakistan and India, 20 December 2013,
UNRIAA, vol. XXXI, pp. 1–358, e.g. at paras. 101, 104 and 105. Available at https://pca-
cpa.org/en/cases/20/ (accessed on 8 July 2019).
1301 See, however, United States, Department of Defense, Dictionary of Military and Associated Terms
(2005), p. 186: “Environmental considerations: The spectrum of environmental media, resources, or
programs that may impact on, or are affected by, the planning and execution of military operations.
Factors may include, but are not limited to, environmental compliance, pollution prevention,
conservation, protection of historical and cultural sites, and protection of flora and fauna”. Available
from www.jcs.mil/Doctrine/Joint-Doctrine-Pubs/Reference-Series/ (accessed on 8 July 2019).
1302 For practical examples of environmental considerations in the context of an armed conflicts, see D.E.
Mosher et al., Green Warriors: Army Environmental Considerations for Contingency Operations
from Planning Through Post-Conflict (RAND Corporation, 2008), pp. 71–72: “given the importance
placed on military expedience during combat, a unit’s environmental responsibilities are fairly
limited. Experience in recent contingency operations has shown that environmental considerations are
significantly more important in other areas, including base camps, stability and reconstruction, and
the movement of forces and materiel”; p. 75: “The movement of forces and materiel … can involve
significant environmental considerations”; p. 121: “Balancing environmental considerations with
other factors that contribute to mission success is a constant undertaking and requires better
awareness, training, information, doctrine, and guidelines”; p. 126: “For example, experience in Iraq
… points to the need for high-quality information about environmental conditions and infrastructure
before an operation is initiated”. See also UNHCR Environmental Guidelines (footnote 1057 above),
p. 5: “Environmental considerations need to be taken into account in almost all aspects of UNHCR’s
work with refugees and returnees.” See furthermore European Commission, “Integrating
environmental considerations into other policy areas – a stocktaking of the Cardiff process”,
document COM(2004) 394 final.
1303 See para. (5) of the commentary to draft principle 15 above.
1304 See International Covenant on Civil and Political Rights, art. 6, para. 1. See also Human Rights
Committee, general comment No. 36 (2018), para. 26 [this general comment has not yet been
published so citations and paragraph numbers may be subject to change in the final version], in which
the Committee lists “degradation of the environment” among general conditions in society that may
give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity.
See also Human Rights Committee, concluding observations: Israel (CCPR/C/ISR/CO/3), para. 18.
See also Convention on the Rights of the Child (New York, 20 November 1989), United Nations,
Treaty Series vol. 1577, No. 27531, p. 3, art. 6, para. 1, which provides that “States Parties recognize
that every child has the inherent right to life”. In general comment No. 16, the Committee on the
Rights of the Child has related the child’s right to life with environmental degradation and
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between key human rights, on the one hand, and the protection of the quality of the soil and
water, as well as biodiversity to ensure viable and healthy ecosystems, on the other. 1307
(6) The formulation of paragraph 2 is based on article 55, paragraph 1, of Additional
Protocol I to the Geneva Conventions1308 and international human rights law. Unlike article
55, paragraph 1, which refers to “the health or survival” of the population, the present
paragraph uses the formulation “health and well-being”. Reference can in this regard be
made to the common objectives between economic, social and cultural rights, such as the
right to health, on the one hand, and the law of occupation, on the other, such as the well-
being of the population. The notion of “health and well-being” is furthermore consistently
used by the World Health Organization, which recalls that health and well-being affect both
contamination resulting from business activities, see general comment No. 16 (2013) on State
obligations regarding the impact of the business sector on children’s rights (CRC/C/GC/16), para. 19.
See further African Charter on Human and Peoples’ Rights (Nairobi, 27 June 1981), United Nations,
Treaty Series, vol. 1520, No. 26363, p. 217, art. 4 which stipulates i.e. that human beings are entitled
to respect for their life. In SERAP v. Nigeria case, the Community Court of Justice of the Economic
Community of West African States affirmed that that “[t]he quality of human life depends on the
quality of the environment”. See Socio-Economic Rights and Accountability Project (SERAP) v.
Nigeria, Judgment No. ECW/CCJ/JUD/18/12, 14 December 2012, para. 100. See also American
Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, 2 May 1948, reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9
(2003), art. 1; American Convention on Human Rights (San José, 22 November 1969), United
Nations, Treaty Series, vol. 1144, No. 17955, art. 4, para. 1, as well as Yanomami v. Brazil, Case No.
7615, Inter-American Commission on Human Rights, resolution No. 12/85, 5 March 1985, which
acknowledged that a healthy environment and the right to life are interlinked. See also Inter-American
Court of Human Rights, Medio Ambiente y Derechos Humanos (footnote 1182 above), paras. 55 and
59.
1305 See Universal Declaration of Human Rights, art. 25, para. 1; International Covenant on Economic,
Social and Cultural Rights, art. 12. See also Committee on Economic, Social and Cultural Rights,
general comment No. 14 (2000) on the right to the highest attainable standard of health (art. 12),
Official Records of the Economic and Social Council, 2001, Supplement No. 2 (E/2001/22-
E/C.12/2000/21), annex IV, para. 4. See also Committee on the Rights of the Child, general comment
No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health
(CRC/C/GC/15), paras. 49–50. Similarly, the Additional Protocol to the American Convention on
Human Rights in the area of Economic, Social and Cultural Rights (Protocol of San Salvador)
includes the right to health, and the regional jurisprudence acknowledges the connection between the
right to health and environmental protection in the context of the universal periodic reviews. See
Additional Protocol to the American Convention on Human Rights in the area of Economic, Social
and Cultural Rights and Office of the United Nations High Commissioner for Human Rights,
“Mapping human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable
environment: individual report on the General Assembly and the Human Rights Council, including
the universal periodic review process”, Report No. 6, December 2013, part III C. See also the Report
of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe,
clean, healthy and sustainable environment (A/HRC/37/59).
1306 See International Covenant on Economic, Social and Cultural Rights, art. 11. See also Committee on
Economic, Social and Cultural Rights, general comment No. 12 (1999) on the right to adequate food
(art. 11), Official Records of the Economic and Social Council, 2001, Supplement No. 2
(E/C.12/2000/22-E/C.12/1999/11), annex V, para. 7, which determines that the concept of adequacy
is interlinked with the notion of sustainability, meaning that food must also be available for the future
generations. See also paras. 8 and 10, which require that available food must be free from adverse
substances. Moreover, the right to food has been related to the depletion of natural resources
traditionally possessed by indigenous communities. Official Records of the Economic and Social
Council, 2001, Supplement No. 2 (E/2000/22-E/C.12/1999/11), para. 337; ibid., 2010, Supplement No.
2 (E/2010/22-E/C.12/2009/3), para. 372; ibid., 2012, Supplement No. 2 (E/2012/22-E/C.12/2011/3),
para. 268; ibid., 2008, Supplement No. 2 (E/2008/22-E/C.12/2007/3), para. 436.
1307 See, for example, World Health Organization, “Our planet, our health, our future: human health and
the Rio Conventions: Biological Diversity, Climate Change and Desertification”, discussion paper,
2012, p. 2, acknowledging the role of biodiversity as the “foundation for human health”. Available at
www.who.int/globalchange/publications/reports/health_rioconventions.pdf (accessed on 8 July 2019).
1308 See Additional Protocol I, art. 55, para. 1: “Care shall be taken in warfare to protect the natural
environment against widespread, long-term and severe damage. This protection includes a prohibition
of the use of methods or means of warfare which are intended or may be expected to cause such
damage to the natural environment and thereby to prejudice the health or survival of the population.”
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the society at present and future generations and are dependent on a healthy
environment.1309 Reference can also be made to the Stockholm Declaration, which reaffirms
“the fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being”.1310
(7) As for the standard of “significant harm” in paragraph 2, reference can be made to
the Commission’s earlier work on the prevention of transboundary harm from hazardous
activities1311 and the allocation of loss in the case of such harm.1312 “Significant harm” is
thus “something more than ‘detectable’ but need not be at the level of ‘serious’ or
‘substantial’”.1313 Such harm must lead to real detrimental effects on the environment. At
the same time, “the determination of ‘significant damage’ involves both factual
considerations and objective criteria, and a value determination”, which is dependent on the
circumstances of the particular case.1314 In the context of paragraph 2, harm that is likely to
prejudice the health and well-being of the population of the occupied territory would
amount to “significant harm”. The two phrases in paragraph 2 should thus not be read as
two cumulative thresholds.
(8) Paragraph 2 refers to “the population of the occupied territory” in general terms.
This wording has been aligned with article 55, paragraph 1, of Additional Protocol I, which
refers to “population” without the qualifying adjective “civilian”. This omission, according
to the ICRC commentary, “serves to emphasize the fact that damage caused to the
environment may continue for a long time and affect the whole population without any
distinction”.1315 Similarly, health and well-being affect society at present as well as future
generations.1316
(9) Paragraph 3 of draft principle 20 provides that an Occupying Power shall respect the
law and institutions of the occupied territory concerning the protection of the environment
1309 According to the Constitution of the World Health Organization, “[h]ealth is a state of complete
physical, mental and social well-being and not merely the absence of disease or infirmity”. The
Constitution was adopted by the International Health Conference held in New York from 19 June to
22 July 1946, and has been amended in 1977, 1984, 1994 and 2005, the consolidated text is available
at www.who.int/governance/eb/who_constitution_en.pdf (accessed on 8 July 2019).
1310 Stockholm Declaration, principle 1. See also UNHCR Environmental Guidelines (footnote 1057
above), p. 5: “The state of the environment … will have a direct bearing on the welfare and well-
being of people living in that vicinity”.
1311 Paras. (1)–(7) of the commentary to draft art. 2 of draft articles on prevention of transboundary harm
from hazardous activities, Yearbook … 2001, vol. II (Part Two) and corrigendum, paras. 97–98, at pp.
152–153.
1312 Paras. (1)–(3) of the commentary to principle 2 of the principles on the allocation of loss in the case
of transboundary harm arising out of hazardous activities Yearbook … 2006, vol. II (Part Two), paras.
66–67, at pp. 64–65.
1313 Para. (4) of the commentary to draft art. 2 of the draft articles on prevention of transboundary harm
from hazardous activities, Yearbook … 2001, vol. II (Part Two) and corrigendum, paras. 97–98, at p.
152 (emphasis removed).
1314 Para. (3) of the commentary to principle 2 of the principles on the allocation of loss in the case of
transboundary harm arising out of hazardous activities, Yearbook … 2006, vol. II (Part Two), paras.
66–67, at p. 65. In the context of the Convention on the Law of the Non-navigational Uses of
International Watercourses ((New York, 21 May 1997), Official Records of the General Assembly,
Fifty-first Session, Supplement No. 49 (A/51/49), vol. III, resolution 51/229, annex), “significant
harm” has been similarly defined as “the real impairment of a use, established by objective evidence.
For harm to be qualified as significant it must not be trivial in nature but it need not rise to the level of
being substantial; this is to be determined on a case by case basis”. See “No significant harm rule”,
User’s Guide Fact Sheet, No. 5. Available at
www.unwatercoursesconvention.org/documents/UNWC-Fact-Sheet-5-No-Significant-Harm-Rule.pdf
1315 ICRC commentary (1987) to Additional Protocol 1, art. 55, para. 1, p. 663, para. 2134. See also
Payne, “Defining the environment: environmental integrity” (footnote 1180 above), p. 58: “the word
‘population’ was used without its usual qualifier of ‘civilian’ because the future survival or health of
the population in general, whether or not combatants, might be at stake” and “[t]he population might
be that of today or that of tomorrow, in the sense that both short-term and long-term survival was
contemplated”.
1316 See Health 2020, Health and well-being – a common purpose, a shared responsibility (World Health
Organization Regional Office for Europe, 2012), p. 1.
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and may only introduce changes within the limits provided by the law of armed conflict. 1317
The term “law and institutions” is intended to also cover the international obligations of the
occupied State.1318 The paragraph is based on the last phrase of article 43 of the Hague
Regulations, “while respecting, unless absolutely prevented, the laws in force in the
country”, as well as on article 64 of Geneva Convention IV.1319 These provisions embody
the so-called conservationist principle, which underlines the temporary nature of occupation
and the need for maintaining the status quo ante.
(10) In spite of their strict wording, the two provisions have been interpreted to allow the
Occupying Power the competence to legislate when necessary for the maintenance of
public order and civil life and to change legislation that is contrary to established human
rights standards.1320 The ICRC commentary to article 47 of Geneva Convention IV points
out that some changes to the institutions “might conceivably be necessary and even an
improvement” and explains that the object of the text in question was “to safeguard human
beings and not to protect the political institutions and government machinery of the State as
such”.1321 It is furthermore evident that “civil life” and “orderly government” are evolving
concepts, comparable to the notions of “well-being and development”, or “sacred trust”
which the International Court of Justice described in the Namibia Advisory Opinion as “by
definition evolutionary”.1322 The longer the occupation lasts, the more evident is the need
1317 Environmental rights have been recognized at national level in the constitutions of more than a
hundred States. There are nevertheless considerable variations in how the respective rights and duties
are conceived. See P. Sands, Principles of International Environmental Law (footnote 1172 above), p.
816. A list of relevant constitutions is available in Earthjustice, Environmental Rights Report 2008, at
http://earthjustice.org/sites/default/files/library/reports/2008-environmental-rights-report.pdf,
Appendix (accessed on 8 July 2019).
1318 Major multilateral environmental agreements have attracted a high number of ratifications. See
https://research.un.org/en/docs/environment/treaties.
1319 Art. 64 of Geneva Convention IV reads as follows:
“The penal laws of the occupied territory shall remain in force, with the exception that they may be
repealed or suspended by the Occupying Power in cases where they constitute a threat to its security
or an obstacle to the application of the present Convention. Subject to the latter consideration and to
the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory
shall continue to function in respect of all offences covered by the said laws.
“The Occupying Power may, however, subject the population of the occupied territory to provisions
which are essential to enable the Occupying Power to fulfil its obligations under the present
Convention, to maintain the orderly government of the territory, and to ensure the security of the
Occupying Power, of the members and property of the occupying forces or administration, and
likewise of the establishments and lines of communication used by them.” The ICRC commentary
points out that, in spite of the reference to penal law, occupation authorities are bound to respect the
whole of the law in the occupied territory, see ICRC commentary (1958) to Geneva Convention IV,
art. 64, p. 335; see also Sassòli, Legislation and maintenance of public order …” (footnote 1286
above), p. 669; similarly, Dinstein, The International Law of Belligerent Occupation (footnote 1277
above), p. 111; Benvenisti, The International Law of Occupation (footnote 1277 above), p. 101; Kolb
and Vité, Le droit de l’occupation militaire … (footnote 1270 above), pp. 192–194.
1320 Sassòli, “Legislation and maintenance of public order…” (see footnote 1286 above), p. 663. See also
United Kingdom, Ministry of Defence, The Manual of the Law of Armed Conflict … (footnote 1222
above), p. 284, para. 11.25, acknowledging that new legislation may be necessitated by the exigencies
of armed conflict, the maintenance of order, or the welfare of the population. Similarly, McDougal
and Feliciano, Law and Minimum World Public Order … (footnote 1290 above), p. 757.
1321 ICRC commentary (1958) to Geneva Convention IV, art. 47, p. 274.
1322 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 16, at p. 31, para. 53. Similarly Aegean Sea Continental Shelf, Judgment, I.C.J. Reports
1978, p. 3, at p. 32, para. 77, in which the Court stated that the meaning of certain generic terms was
“intended to follow the evolution of the law and to correspond with the meaning attached to the
expression by the law in force at any given time”. See also World Trade Organization, United States-
Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Appellate Body
Report), 6 November 1998, Dispute Settlement Reports, vol. VII (1998), p. 2755, at para. 129,
according to which the expression “exhaustible natural resources” had to be interpreted in the light of
contemporary concerns about the protection and conservation of the environment. Available at
https://docs.wto.org; Permanent Court of Arbitration, Award in the Arbitration regarding the Iron
Rhine (footnote 1300 above), at paras. 79–81. See also the Commission’s work on subsequent
agreements and subsequent practice, commentary to draft conclusion 3 (Interpretation of treaty terms
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for proactive action and to allow the Occupying Power to fulfil its duties under the law of
occupation, including for the benefit of the population of the occupied territory.1323 At the
same time, the Occupying Power is not supposed to take over the role of a sovereign
legislator.
(11) Paragraph 3 takes into account that armed conflict may have caused significant
stress on the environment of the occupied State and resulted in institutional collapse, which
is a common feature of many armed conflicts,1324 and recognizes that an Occupying Power
may have to take proactive measures to address immediate environmental problems. The
more protracted the occupation, the more diversified measures are likely to be required for
the protection of the environment. Furthermore, as the objectives of such proactive action
are limited, it would be appropriate in a prolonged occupation to engage the population of
the occupied territory in decision-making.1325
(12) While some active interference in the law and institutions concerning the
environment of the occupied territory may thus be required, the Occupying Power may not
introduce permanent changes in fundamental institutions of the country and shall be guided
by a limited set of considerations: the concern for public order, civil life, and welfare in the
occupied territory.1326 The phrase “within the limits provided by the law of armed conflict”
in paragraph 3 also refers to article 64 of Geneva Convention IV. According to this
provision, local laws may be changed when it is essential: (a) to enable the Occupying
Power to fulfil its obligations under the Convention; (b) to maintain the orderly government
of the territory; or (c) to ensure the security of occupying forces or administration. 1327
as capable of evolving over time), Official Records of the General Assembly, Sixty-eighth session,
Supplement No. 10 (A/68/10), para. 39, at pp. 24–30.
1323 E.H. Feilchenfeld, The International Economic Law of Belligerent Occupation (Washington, D.C.,
Carnegie Endowment for International Peace, 1942), p. 49, who pointed to the need to modify tax
legislation in an occupation that lasts through several years, noting that “[a] complete disregard of
these realities may well interfere with the welfare of the country and ultimately with ‘public order and
safety’ as understood in Article 43”. Similarly, McDougal and Feliciano, Law and Minimum World
Public Order … (footnote 1290 above), p. 746. See also ICRC, “Occupation and other forms of
administration of foreign territory” (footnote 1279 above), p. 58, stressing the ability of the occupant
to legislate to fulfil its obligations under Geneva Convention IV or to enhance civil life in the
occupied territory. Sassòli, “Legislation and maintenance of public order…” (see footnote 1286
above), p. 676, nevertheless holds that the occupant should “introduce only as many changes as is
absolutely necessary under its human rights obligations”.
1324 See Jensen and Lonergan, “Natural resources and post-conflict assessment, remediation, restoration
and reconstruction: lessons and emerging issues” (footnote 1065 above), p. 415. See also K. Conca
and J. Wallace, “Environment and peacebuilding in war-torn societies: lessons from the UN
Environment Programme’s experience with post-conflict assessment” in Assessing and Restoring
Natural Resources in Post-Conflict Peacebuilding (footnote 1065 above), pp. 63–84.
1325 See the Rio Declaration, principle 10: “Environmental issues are best handled with the participation
of all concerned citizens, at the relevant level. At the national level, each individual shall have
appropriate access to information concerning the environment that is held by public authorities,
including information on hazardous materials and activities in their communities, and the opportunity
to participate in decision-making processes. States shall facilitate and encourage public awareness and
participation by making information widely available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided.” See also Framework principles on
human rights and the environment (A/HRC/37/59, annex), principle 9: “States should provide for and
facilitate public participation in decision-making related to the environment and take the views of the
public into account in the decision-making process.” See further Aarhus Convention.
1326 Feilchenfeld, The International Economic Law of Belligerent Occupation (footnote 1323 above), p.
89. See also Ferraro, “The law of occupation and human rights law …” (footnote 1291 above), pp.
273–293; see similarly the Supreme Court of Israel: H.C. 351/80, The Jerusalem District Electricity
Company Ltd. v. (a) Minister of Energy and Infrastructure, (b) Commander of the Judea and Samaria
Region 35(23), Piskei Din 673, partly reprinted in Israel Yearbook on Human Rights (1981), pp. 354–
358.
1327 Geneva Convention IV, art. 64.
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Principle 21
Sustainable use of natural resources
To the extent that an Occupying Power is permitted to administer and use the
natural resources in an occupied territory, for the benefit of the population of the
occupied territory and for other lawful purposes under the law of armed conflict, it
shall do so in a way that ensures their sustainable use and minimizes environmental
harm.
Commentary
(1) The purpose of draft principle 21 is to set forth the obligations of an Occupying
Power with respect to the sustainable use of natural resources. As indicated in the first part
of the sentence, the draft principle applies “to the extent that an Occupying Power is
permitted to administer and use the natural resources in an occupied territory”. The phrase
refers to the various limitations set forth by the law of armed conflict and other
international law to the exploitation of the wealth and natural resources of the occupied
territory.
(2) The provision is based on article 55 of the Hague Regulations, which regards the
Occupying Power “only as administrator and usufructuary” of immovable public property
in the occupied territory. 1328 This description has traditionally been interpreted to forbid
“wasteful or negligent destruction of the capital value, whether by excessive cutting or
mining or other abusive exploitation”.1329 A similar limitation deriving from the nature of
occupation as temporary administration of the territory prevents the Occupying Power from
using the resources of the occupied country or territory for its own domestic purposes. 1330
Furthermore, any exploitation of property is permitted only to the extent required to cover
the expenses of the occupation, and “these should not be greater than the economy of the
country can reasonably be expected to bear”.1331
(3) The second sentence of the draft principle mentions explicitly that the Occupying
Power’s administration and use of natural resources in the occupied territory may only be
“for the benefit of the population of the occupied territory and for other lawful purposes
under the law of armed conflict”. 1332 The reference to “the population of the occupied
territory” is to be understood in this context in the sense of article 4 of Geneva Convention
1328 See Hague Regulations, art. 55: “The occupying State shall be regarded only as administrator and
usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile
State, and situated in the occupied country. It must safeguard the capital of these properties, and
administer them in accordance with the rules of usufruct.”
1329 J. Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes- and War-
Law (London, Stevens and Sons Limited, 1954), p. 714. See also G. von Glahn, The Occupation of
Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (Minneapolis,
University of Minnesota Press, 1957), p. 177, who emphasizes that the Occupying Power “is not
permitted to exploit immovable property beyond normal use, and may not cut more timber than was
done in pre-occupation days” and L. Oppenheim, International Law: A Treatise, vol. II, War and
Neutrality, 2nd ed. (London, Longmans, Green and Co., 1912), p. 175, pointing out that the
Occupying Power “is … prohibited from exercising his right in a wasteful or negligent way that
would decrease the value of the stock and plant” and “must not cut down a whole forest unless the
necessities of war compel him”.
1330 Singapore, Court of Appeal, N.V. de Bataafsche Petroleum Maatschappij and Others v. The War
Damage Commission, 13 April 1956, Reports: 1956 Singapore Law Reports, p. 65; reprint in
International Law Reports, vol. 23 (1960), pp. 810–849, p. 822 (Singapore Oil Stocks case); In re
Krupp and Others, Judgment of 30 June 1948, Trials of War Criminals before the Nürnberg Military
Tribunals, vol. IX, p. 1340.
1331 The United States of America and Others v. Goering and Others, Judgment of 1 October 1946, in
Trial of the Major War Criminals before the International Military Tribunal, vol. I (Nuremberg,
1947), p. 239.
1332 As summarized by the Institute of International Law, “the occupying power can only dispose of the
resources of the occupied territory to the extent necessary for the current administration of the
territory and to meet the essential needs of the population”. See Institute of International Law,
Yearbook, vol. 70, Part II, Session of Bruges (2003), pp. 285 et seq.; available from www.idi-iil.org,
Declarations, at p. 288.
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IV, which defines protected persons as “those who, at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to
the conflict or Occupying Power of which they are not nationals”.1333
(4) A further limitation that provides protection to the natural resources and certain
other components of the environment of the occupied territory is contained in the general
prohibition of destruction or seizure of property, whether public or private, movable or
immovable, in the occupied territory unless such destruction or seizure is rendered
absolutely necessary by military operations (or, with respect to seizure of movable public
property, is necessary for military operations). 1334 The prohibition of pillage of natural
resources is furthermore applicable in situations of occupation. 1335 An “extensive
destruction and appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly” is also defined as a grave breach in article 147 of Geneva
Convention IV (see also article 53) and as a war crime of “pillage” in the Rome Statute of
the International Criminal Court.1336
(5) The principle of permanent sovereignty over natural resources also has a bearing on
the interpretation of article 55 of the Hague Regulations. According to this principle, as
enshrined in both the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights, all peoples may, for their
own ends, freely dispose of their natural wealth and resources without prejudice to any
obligations arising out of international economic cooperation, based upon the principle of
mutual benefit, and international law. In no case may a people be deprived of its own
means of subsistence.1337 The International Court of Justice has confirmed the customary
nature of the principle.1338 Similarly, the principle of self-determination may be invoked in
relation to the exploitation of natural resources in territories under occupation, particularly
in the case of territories that are not part of any established State. 1339
(6) While the right of usufruct has traditionally been regarded as applicable to the
exploitation of all kinds of natural resources, including non-renewable ones,1340 the various
limitations outlined above serve to curtail the Occupying Power’s rights to exploit the
natural resources of the occupied territory. These limitations are also reflected in the use of
“permitted”.
(7) The last sentence of draft principle 21 addresses situations in which an Occupying
Power is permitted to administer and use the natural resources in an occupied territory. It
1333
Geneva Convention IV, art. 4. See also ICRC commentary (1958) to Geneva Convention IV, art. 4, p.
45, according to which there are two main classes of civilians whose “protection against arbitrary
action on the part of the enemy was essential in time of war – on the one hand, persons of enemy
nationality living in the territory of a belligerent State, and on the other, the inhabitants of occupied
territories.”
1334 Art. 23 (g) and art. 53 of the Hague Regulations, and art. 53 of Geneva Convention IV.
1335 See draft principle 18 and the commentary thereto above.
1336 Rome Statute, art. 8, para. 2 (a) (iv) and (b) (xiii).
1337 International Covenant on Civil and Political Rights, art. 1, para. 2; International Covenant on
Economic, Social and Cultural Rights, art. 1, para. 2. See also General Assembly resolutions 1803
(XVII) of 14 December 1962; 3201 (S-VI) of 1 May 1974 (Declaration on the Establishment of a
New International Economic Order); 3281 (XXIX) of 12 December 1974 (Charter of Economic
Rights and Duties of States).
1338 Armed Activities on the Territory of the Congo (footnote 1241 above), at p. 251, para. 244.
1339 In the Wall Advisory Opinion, the International Court of Justice stated that the construction of the
wall, as well as other measures by the occupying State, “severely impedes the exercise by the
Palestinian people of its right to self-determination”: Legal Consequences of the Construction of a
Wall (see footnote 1274 above), at p. 184, para. 122. The right to self-determination was also referred
to in the Namibia, Advisory Opinion (see footnote 1322 above), p. 31, paras. 52–53, in Western
Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at pp. 32–33, paras. 56–59, as well as in the
East Timor case, in which the Court affirmed the erga omnes nature of the principle, see East Timor
(Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, at p. 102, para. 29.
1340 Feilchenfeld, The International Economic Law of Belligerent Occupation (see footnote 1323 above),
p. 55. See also Oppenheim, International Law … (footnote 1329 above), p. 175, and Von Glahn, The
Occupation of Enemy Territory … (footnote 1329 above), p. 177. Similarly, United Kingdom,
para. 11.86.
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sets forth an obligation to do so in a way that ensures the sustainable use of such resources
and minimizes environmental harm. This requirement is based on the Occupying Power’s
duty under article 55 of the Hague Regulations to safeguard the capital of public
immovable property, which has for long been interpreted to entail certain obligations with
regard to the protection of the natural resources in the occupied territory. In the light of the
development of the international legal framework for the exploitation and conservation of
natural resources, environmental considerations and sustainability are to be seen as integral
elements of the duty to safeguard the capital. Reference can in this respect be made to the
Gabčíkovo-Nagymaros judgment, in which the International Court of Justice, in
interpreting a treaty that predated certain recent norms of environmental law, accepted that
“the Treaty is not static, and is open to adapt to emerging norms of international law”.1341
An arbitral tribunal has furthermore stated that principles of international environmental
law must be taken into account even when interpreting treaties concluded before the
development of that body of law. 1342
(8) The notion of sustainable use of natural resources can in this regard be seen as the
modern equivalent of the concept of “usufruct”, which is in essence a standard of good
housekeeping, according to which the Occupying Power “must not exceed what is
necessary or usual” 1343 when exploiting the relevant resource. This entails that the
Occupying Power should exercise caution in the exploitation of non-renewable resources,
not exceeding pre-occupation levels of production, and exploit renewable resources in a
way that ensures their long-term use, and capacity for regeneration.
(9) The notion of minimization of environmental harm follows from the purpose of the
draft principles. Draft principle 2 notably states that the draft principles are aimed at
enhancing the protection of the environment in relation to armed conflict, including through
preventive measures for minimizing damage to the environment during armed conflict and
through remedial measures. While the obligation to ensure the sustainable use of natural
resources is most relevant in a long-term perspective, the use of natural resources, and the
need to minimize environmental harm, is relevant both in short-term and more protracted
occupations.
Principle 22
Due diligence
An Occupying Power shall exercise due diligence to ensure that activities in
the occupied territory do not cause significant harm to the environment of areas
beyond the occupied territory.
1341 Gabčíkovo-Nagymaros (see footnote 1292 above), pp. 67–68, para. 112. See also p. 78, para. 140, in
which the Court rules that, whenever necessary for the application of a treaty, “new norms have to be
taken into consideration, and … new standards given proper weight.” Further, see Permanent Court of
Arbitration, Award in the Arbitration regarding the Iron Rhine (footnote 1300 above), in which the
Court applied concepts of customary international environmental law to treaties dating back to the
mid-nineteenth century.
1342 Indus Waters Kishenganga (see footnote 1300 above), para. 452, in which the Court held that: “It is
established that principles of international environmental law must be taken into account even when
… interpreting treaties concluded before the development of that body of law … It is therefore
incumbent upon this Court to interpret and apply this 1960 Treaty in light of the customary
international principles for the protection of the environment in force today”. Furthermore, the
International Law Association has suggested that treaties and rules of customary international law
should be interpreted in the light of the principles of sustainable development unless doing so would
conflict with a clear treaty provision or be otherwise inappropriate: “[I]nterpretations which might
seem to undermine the goal of sustainable development should only take precedence where to do
otherwise would be to undermine … fundamental aspects of the global legal order, would otherwise
infringe the express wording of a treaty or would breach a rule of jus cogens.” See International Law
Association, Committee on International Law on Sustainable Development, Resolution No. 7 (2012),
annex (Sofia Guiding Statement), para. 2.
1343 The Law of War on Land Being Part III of the Manual of Military Law (Great Britain, War Office,
1958), sect. 610. Similarly, United Kingdom, Ministry of Defence, The Manual of the Law of Armed
Conflict … (footnote 1222 above), p. 303, para. 11.86.
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Commentary
(1) Draft principle 22 contains the established principle that each State has an obligation
not to cause significant harm to the environment of other States or to areas beyond national
jurisdiction. The International Court of Justice referred to this principle in the Legality of
the Threat or Use of Nuclear Weapons case and confirmed its customary nature, stating that
the general obligation of States to ensure that activities within their jurisdiction and control
respect the environment of other States and of areas beyond national control constitutes
“part of the corpus of international law relating to the environment”.1344
(2) The obligation not to cause significant harm to the environment of other States has
an established status in a transboundary context and has been particularly relevant with
regard to shared natural resources, such as sea areas, international watercourses and
transboundary aquifers. This obligation is explicitly contained in the Convention on the
Law of the Non-navigational Uses of International Watercourses and in the Convention on
the Protection and Use of Transboundary Watercourses and International Lakes as well as
in the United Nations Convention on the Law of the Sea. 1345 Numerous regional treaties
establish corresponding obligations of prevention, cooperation, notification or
compensation with regard to damage caused to rivers or lakes. 1346 The principle has also
been confirmed and clarified in international and regional jurisprudence. 1347
(3) Furthermore, the Commission has included this principle in its draft articles on
prevention of transboundary harm from hazardous activities. 1348 According to the
commentary thereto, the obligation of due diligence can be deduced from a number of
international conventions as the standard basis for the protection of the environment from
harm.1349
(4) As regards the applicability of this principle in the specific context of occupation,
reference can be made to the International Court of Justice’s Advisory Opinion in the
1344 Legality of the Threat or Use of Nuclear Weapons (see footnote 1162 above), pp. 241–242, para. 29.
The principle is also contained in contained in principle 21 of the Stockholm Declaration and
principle 2 of the Rio Declaration: see Stockholm Declaration, principle 21: “States have, in
accordance with the Charter of the United Nations and the principles of international law … the
responsibility to ensure that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction.” See furthermore
Sands, Principles of International Environmental Law (footnote 1172 above), p. 206, as well as U.
Beyerlin, “Different types of norms in international environmental law: policies, principles and
rules”, in D. Bodansky, J. Brunnée and E. Hey (eds.), The Oxford Handbook of International
Environmental Law (Oxford, Oxford University Press, 2008), pp. 425–448, p. 439.
1345 Convention on the Law of the Non-navigational Uses of International Watercourses (New York, 21
May 1997), text available from https://treaties.un.org (Status of Multilateral Treaties Deposited with
the Secretary-General, chap. XXVII), art.7; Convention on the Protection and Use of Transboundary
Watercourses and International Lakes (Helsinki, 17 March 1992), United Nations, Treaty Series, vol.
1936, No. 33207, p. 269, art. 2; United Nations Convention on the Law of the Sea (Montego Bay, 10
December 1982), United Nations, Treaty Series, vol. 1833, p. 397, art. 194, para. 2.
1346 See, e.g., Convention on the Protection of the Rhine (1999), Agreement on the Action Plan for the
Environmentally Sound Management of the Common Zambezi River System (1987); Agreement on
Co-operation for the Sustainable Development of the Mekong River Basin (1995), all available at
www.ecolex.org; Revised Great Lakes Water Quality Agreement (United States, Canada, 2012),
available at https://ijc.org.
1347 Several of the cases in which the International Court of Justice has clarified environmental obligations
have been related to the use and protection of water resources such as wetlands or river; e.g., the
Construction of a Road (Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v.
Costa Rica), Judgment, I.C.J. Reports 2015, p. 665) and Pulp Mills (Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14) cases, as well as the case of
Gabčíkovo-Nagymaros (see footnote 1292 above). See also Indus Waters Kishenganga (see footnote
1300 above), paras. 449–450. Regional jurisprudence is widely available at www.ecolex.org.
1348 Art. 3 of the articles on prevention of transboundary harm from hazardous activities, Yearbook …
2001, vol. II (Part Two) and corrigendum, paras. 97–98, at p. 146: “The State of origin shall take all
appropriate measures to prevent significant transboundary harm or at any event to minimize the risk
thereof”.
1349 Para. (8) of the commentary to art. 3, ibid., at p. 154.
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Namibia case, in which the Court underlined the international obligations and
responsibilities of South Africa towards other States while exercising its powers in relation
to the occupied territory, stating that “[p]hysical control of a territory, and not sovereignty
or legitimacy of title, is the basis of State liability for acts affecting other States”. 1350
Furthermore, the Court has referred to the general obligation of States to ensure that
activities within their jurisdiction and control respect the environment of other States or of
areas beyond national control in its judgment concerning the Pulp Mills on the River
Uruguay case,1351 as well as in the joint cases of Certain Activities and Construction of a
Road.1352
(5) The Commission’s draft articles on prevention of transboundary harm from
hazardous activities state that this obligation applies to activities carried out within the
territory or otherwise under the jurisdiction or control of a State.1353 It should be recalled
that the Commission has consistently used this formulation to refer not only to the territory
of a State but also to activities carried out in other territories under the State’s control. As
explained in the commentary to draft article 1, “it covers situations in which a State is
exercising de facto jurisdiction, even though it lacks jurisdiction de jure, such as in cases of
unlawful intervention, occupation and unlawful annexation”.1354
(6) The “no harm” or due diligence principle in customary international environmental
law only applies to harm above a certain threshold, most often indicated as “significant
harm”,1355 and it is an obligation of conduct that requires in situations of occupation that the
Occupying Power takes all measures it can reasonably be expected to take. 1356 The notion of
significant harm is the same as referred to above in the commentary to draft principle 20. 1357
(7) The wording of draft principle 22 is different from the established precedents in that
it refers to “the environment of areas beyond the occupied territory”. The consideration
behind this formulation was related to situations in which the occupied territory extends to
only a part of the territory of a State and not its entirety. The concern was expressed that the
term “to the environment of another State or to areas beyond national jurisdiction” could be
interpreted as excluding the territory of other parts of the occupied State. It was therefore
decided to indicate that the territorial scope of the provision should cover “areas beyond the
occupied territory”. Furthermore, the reference to the conduct required of the Occupying
Power to ensure that activities in the occupied territory do not cause significant
transboundary harm was replaced by the term “due diligence”. A view was nevertheless
expressed that language commonly used in international instruments would be preferable.
Part Five
Principle 23
Peace processes
1. Parties to an armed conflict should, as part of the peace process, including
where appropriate in peace agreements, address matters relating to the restoration
and protection of the environment damaged by the conflict.
2. Relevant international organizations should, where appropriate, play a
facilitating role in this regard.
1350 Namibia, Advisory Opinion (see footnote 1322 above), p. 54, para. 118.
1351
Pulp Mills (see footnote 1347 above), pp. 55–56, para. 101.
1352 See footnote 1347 above.
1353 Para. (10) of the commentary to art. 2 (use of terms) of the articles on prevention of transboundary
harm from hazardous activities, Yearbook … 2001, vol. II (Part Two) and corrigendum, paras. 97–98,
at p. 153.
1354 Para. (12) of the commentary to art. 1, ibid., at p. 151.
1355 See, for instance, K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Leiden,
Martinus Nijhoff, 2004), p. 68, pointing out that in case of environmental harm, it is common to use
the standard of “significant” damage. See similarly T. Koivurova, “Due diligence”, Max Planck
Encyclopedia of Public International Law, p. 241, para. 23. Available from www.mpepil.com.
1356 Second report of the International Law Association, Study Group on Due Diligence in International
Law, July 2016, p. 8.
1357 See para. (5) of the commentary to para. 2 of draft principle 20 above.
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Commentary
(1) Draft principle 23 aims to reflect that environmental considerations are, to a greater
extent than before, being taken into consideration in the context of peace processes,
including through the regulation of environmental matters in peace agreements. Reference
can also be made to the heavy environmental impact of non-international armed conflicts
that has led a growing number of States to include measures to protect and restore the
environment in transitional justice processes.1358
(2) Including the term “peace process” in the draft principle is intended to broaden its
scope to cover the entire peace process, as well as any formal peace agreements
concluded.1359 Modern armed conflicts have a variety of outcomes that do not necessarily
take the form of formal agreements. For example, at the end of an armed conflict, a
ceasefire agreement, an armistice or a situation of de facto peace with no agreement could
be reached. A peace process may also begin well before the actual end of an armed conflict.
The conclusion of a peace agreement thus represents only one aspect, which, if at all, may
take place several years after the cessation of hostilities. For this purpose, and to also avoid
any temporal lacuna, the words “as part of the peace process” have been employed. The
outcome of a peace process often involves different steps and the adoption of a variety of
instruments.
(3) The phrase “[p]arties to an armed conflict” is used in paragraph 1 to indicate that the
provision covers both international and non-international armed conflicts. This is in line
with the general understanding that the draft principles apply to international, as well as
non-international armed conflicts.
(4) The word “should” is used to reflect the normative ambition of the provision, while
also recognizing that it does not correspond to any existing legal obligation.
(5) The draft principle is cast in general terms to accommodate the wide variety of
situations that may exist after an armed conflict. The condition of the environment after an
1358 “[T]ransitional justice … comprises the full range of processes and mechanisms associated with a
society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure
accountability, serve justice and achieve reconciliation. These may include both judicial and non-
judicial mechanisms, with differing levels of international involvement (or none at all) and individual
prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination
thereof”, Report of the Secretary-General on “The rule of law and transitional justice in conflict and
post-conflict societies” (S/2004/616), para. 8; numerous countries affected by post-conflict crises
have adopted transitional justice mechanisms to enhance their environmental protection and
restoration, some under assistance of the United Nations Environment Programme: see, for instance,
United Nations Environment Programme, “Reporting on the state of the environment in Afghanistan:
workshop report” (2019); United Nations Environment Programme, South Sudan: First State of the
Environment and Outlook Report 2018 (Nairobi, 2018); A. Salazar et al., “The ecology of peace:
preparing Colombia for new political and planetary climates”, Frontiers in Ecology and the
Environment (September 2018), available at http://www.researchgate.net/publication/327605932_
The_ecology_of_peace_preparing_Colombia_for_new_political_and_planetary_climates/download
(accessed on 8 July 2019); United Nations Environment Programme, “Addressing the role of natural
resources in conflict and peacebuilding” (Nairobi, 2015); United Nations Environment Programme,
Rwanda: From Post-Conflict to Environmentally Sustainable Development (footnote 1060 above);
United Nations Environment Programme, “Sierra Leone: environment, conflict and peacebuilding
assessment” (Geneva, 2010); Cambodia, Ministry of Environment, “Cambodia environment outlook”
(2009); Sierra Leone, An Agenda for Change (2008); United Nations Environment Programme,
Environmental assessment of the Gaza Strip following the escalation of hostilities in December 2008–
January 2009 (Nairobi, 2009).
1359 The United Nations peace agreements database, a “reference tool providing peacemaking
professionals with close to 800 documents that can be understood broadly as peace agreements and
related material”, contains a huge variety of documents, such as “formal peace agreements and sub-
agreements, as well as more informal agreements and documents such as declarations, communiqués,
joint public statements resulting from informal talks, agreed accounts of meetings between parties,
exchanges of letters and key outcome documents of some international or regional conferences …
The database also contains selected legislation, acts and decrees that constitute an agreement between
parties and/or were the outcome of peace negotiations”. Selected resolutions of the Security Council
are also included. The database is available at http://peacemaker.un.org/document-search.
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armed conflict can vary greatly depending on a number of factors. 1360 In some instances, the
environment may have suffered serious and severe damage which is immediately apparent
and which may need to be addressed as a matter of urgency; whereas, in others, the damage
the environment has suffered may not be so significant as to warrant urgent restoration. 1361
Some environmental damage may only become apparent months or even years after the
armed conflict has ended.
(6) The draft principle aims to cover all formal peace agreements, as well as other
instruments or agreements concluded or adopted at any point during the peace process,
whether concluded between two or more States, between State(s) and non-State armed
group(s), or between two or more non-State armed group(s). Such agreements and
instruments may take different forms, such as sub-agreements to formal peace agreements,
informal agreements, declarations, communiqués, joint public statements resulting from
informal talks, agreed accounts of meetings between parties, as well as relevant legislation,
acts and decrees that constitute an agreement between parties and/or were the outcome of
peace negotiations.1362
(7) Some modern peace agreements contain environmental provisions. 1363 The types of
environmental matters that have been addressed in the instruments concluded during the
1360 For example, the intensity and duration of the conflict as well as the weapons used can all influence
how much environmental damage is caused in a particular armed conflict.
1361 Well-known examples of environmental damage caused in armed conflict is the damage caused by
the United States Armed Forces’ use of Agent Orange in the Viet Nam War and the burning of
Kuwaiti oil wells by Iraqi troops in the Gulf War, which are well documented. Instances of
environmental damage, which range in severity, have also been documented in other armed conflicts,
such as the conflicts in Colombia, as well as in the Democratic Republic of the Congo, Iraq and Syria.
See United Nations Environment Programme Colombia, “UN Environment will support
environmental recovery and peacebuilding for post-conflict development in Colombia”, available at
www.unenvironment.org/news-and-stories/story/un-environment-will-support-environmental-
recovery-and-peacebuilding-post (accessed on 8 July 2019); United Nations Environment
Programme, “Post-conflict environmental assessment of the Democratic Republic of the Congo”,
available at https://postconflict.unep.ch/publications/UNEP_DRC_PCEA_EN.pdf (accessed on 8 July
2019); United Nations Environment Programme, “Post-conflict environmental assessment, clean-up
and reconstruction in Iraq”, available at
https://wedocs.unep.org/bitstream/handle/20.500.11822/17462/UNEP_Iraq.pdf?sequence=1&isAllow
ed=y (accessed on 8 July 2019); “Lebanon Environmental Assessment of the Syrian Conflict”
(supported by UNDP and EU), available at
www.undp.org/content/dam/lebanon/docs/Energy%20and%20Environment/Publications/EASC-
WEB.pdf (accessed on 8 July 2019). See also International Law and Policy Institute, “Protection of
the natural environment in armed conflict: an empirical study” (Oslo, 2014), pp. 34–40.
1362 See C. Bell, “Women and peace processes, negotiations, and agreements: operational opportunities
and challenges”, Norwegian Peacebuilding Resource Centre, Policy Brief, March 2013, available at
http://noref.no under “Publications”, p. 1.
1363 Such instruments are predominantly concluded in non-international armed conflicts, between a State
and a non-State actor and include the following: Final Agreement to End the Armed Conflict and
Build a Stable and Lasting Peace between the National Government of Colombia and the
Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP), (Bogotá, 24 November
2016), available at http://www.altocomisionadoparalapaz.gov.co/procesos-y-
conversaciones/Documentos%20compartidos/24-11-2016NuevoAcuerdoFinal.pdf (in Spanish) and at
http://especiales.presidencia.gov.co/Documents/20170620-dejacion-armas/acuerdos/acuerdo-final-
ingles.pdf (in English) (accessed on 5 August, 2019); Agreement on Comprehensive Solutions
between the Government of the Republic of Uganda and Lord’s Resistance Army/Movement (Juba, 2
May 2007), available from
https://peacemaker.un.org/sites/peacemaker.un.org/files/UG_070502_AgreementComprehensiveSolut
ions.pdf (accessed on 5 August 2019), para. 14.6; Darfur Peace Agreement (Abuja, 5 May 2006),
available from http://peacemaker.un.org/node/535 (accessed on 5 August 2019), chap. 2, at p. 21, art.
17, para. 107 (g) and (h), and at p. 30, art. 20; Final Act of the Inter-Congolese Political Negotiations
(Sun City, 2 April 2003), available from http://peacemaker.un.org/drc-suncity-agreement2003
(accessed on 5 August 2019), resolution No. DIC/CEF/03, pp. 40–41, and resolution No.
DIC/CHSC/03, pp. 62–65; Comprehensive Peace Agreement between the Government of the
Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation
Army (Machakos, 20 July 2002), available from http://peacemaker.un.org/node/1369 (accessed on 5
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peace process or in peace agreements include, for example, obligations for or

encouragement to parties to cooperate regarding environmental issues, and provisions that
set out in detail the authority that will be responsible for matters relating to the environment,
such as preventing environmental crimes and enforcing national laws and regulations on
natural resources and the sharing of communal resources. 1364 The present draft principle
aims to encourage parties to consider including such provisions in the agreements.
(8) Paragraph 2 aims to encourage relevant international organizations to take
environmental considerations into account when they act as facilitators in peace processes.
The wording of the paragraph is intended to be broad enough to cover situations where
Chapter VII resolutions of the United Nations Security Council have been passed, as well
as situations where relevant international organizations play a facilitating role at the consent
of the relevant State or parties to an armed conflict in question.
(9) Paragraph 2 refers to “relevant international organizations” to signal that not all
organizations are suited to address this particular issue. The organizations that are
envisioned as being relevant in the context of this draft principle include those that have
been recognized as playing an important role in the peace processes of various armed
conflicts in the past, inter alia, the United Nations and its organs in particular, as well as the
African Union, the European Union and the Organization of American States. 1365 The draft
principle also includes the words “where appropriate” to reflect the fact that the
involvement of international organizations for this purpose is not always required, or
wanted by the parties.
August 2019), chap. V, p. 71 and chap. III, p. 45, which set out as guiding principles that “the best
known practices in the sustainable utilization and control of natural resources shall be followed”
(para. 1.10) – further regulations further regulations on oil resources are found in paras. 3.1.1 and 4;
Arusha Peace and Reconciliation Agreement for Burundi (Arusha, 28 August 2000), available from
http://peacemaker.un.org/node/1207 (accessed on 5 August 2019), Additional Protocol III, at p. 62,
art. 12, para. 3 (e), and Additional Protocol IV, at p. 81, art. 8 (h); Peace Agreement between the
Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Lomé, 7 July
1999), available from https://peacemaker.un.org/sierraleone-lome-agreement99 (accessed on 5
August 2019), S/1999/777, annex, art. VII; Interim Agreement for Peace and Self-Government in
Kosovo (Rambouillet Accords) (Paris, 18 March 1999), S/1999/648, annex; Peace Agreement
between the Government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional
(Chapultepec Agreement) (Mexico City, 16 January 1992), A/46/864, annex, chap. II.
1364 Chapultepec Agreement, chap. II. Further regulations are found in art. 13 contained in annex II to the
Peace Agreement; they prescribe that it is the role of the Environment Division of the National Civil
Police to “be responsible for preventing and combating crimes and misdemeanours against the
environment”. The Arusha Peace and Reconciliation Agreement for Burundi, Protocol III, at p. 62,
art. 12, para. 3 (e), and at p. 81, art. 8 (h), contains several references to the protection of the
environment, one of which prescribes that one of the missions of the intelligence services is “[t]o
detect as early as possible any threat to the country’s ecological environment”. Furthermore, it states
that “[t]he policy of distribution or allocation of new lands shall take account of the need for
environmental protection and management of the country’s water system through protection of
forests”.
1365 The United Nations has acted as a facilitator in numerous armed conflicts, inter alia the armed
conflicts in Angola, the Democratic Republic of the Congo, Libya and Mozambique. Regional
organizations have also played a facilitating role in the peace processes across the world. For
example, the African Union has been involved in aspects of the peace processes in, inter alia,
Comoros, Côte d’Ivoire, Guinea-Bissau, Liberia and Somalia. See Chatham House, Africa
Programme, “The African Union’s role in promoting peace, security and stability: from reaction to
prevention?”, meeting summary, available from www.chathamhouse.org, p. 3. The Organization of
American States was involved in the peace process in, inter alia, the Plurinational State of Bolivia
and Colombia. See P.J. Meyer, “Organization of American States: background and issues for
Congress” (Congressional Research Service, 2014), available at www.fas.org, p. 8. See also African
Union and Centre for Humanitarian Dialogue, Managing Peace Processes: Towards more inclusive
processes, vol. 3 (2013), p. 106. The European Union has been involved in the peace processes in
armed conflicts in, inter alia, the Middle East and Northern Ireland. See also Switzerland, Federal
Department of International Affairs, “Mediation and facilitation in today’s peace processes: centrality
of commitment, coordination and context”, presentation by Thomas Greminger, a retreat of the
International Organization of la Francophonie, 15–17 February 2007, available from
www.swisspeace.ch, under “Publications”.
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Principle 24
Sharing and granting access to information
1. To facilitate remedial measures after an armed conflict, States and relevant
international organizations shall share and grant access to relevant information in
accordance with their obligations under international law.
2. Nothing in the present draft principle obliges a State or international
organization to share or grant access to information vital to its national defence or
security. Nevertheless, that State or international organization shall cooperate in
good faith with a view to providing as much information as possible under the
circumstances.
Commentary
(1) Draft principle 24 refers generally to “States”, as this term is broader than “parties to
an armed conflict”. States not parties to an armed conflict may be affected as third States,
and may have relevant information useful for the taking of remedial measures that could
usefully be provided to other States or international organizations. This obligation applies
to States, even though non-State actors are addressed in other draft principles, and the set of
draft principles covers both international and non-international armed conflicts.
(2) While States are typically the most relevant subjects, the draft principle also refers to
international organizations, with the addition of the qualifier “relevant”. The specific term
“national defence” applies only to States. For some international organizations,
confidentiality requirements may also affect the extent of information that they can share or
grant access to in good faith. 1366
(3) Draft principle 24 consists of two paragraphs. Paragraph 1 refers to the obligations
States and international organizations may have under international law to share and grant
access to information with a view to facilitating remedial measures after an armed conflict.
Paragraph 2 refers to security considerations to which such access may be subject.
(4) The expression “in accordance with their obligations under international law”
reflects that treaties contain obligations relevant in the context of the protection of the
environment in relation to armed conflicts, which may be instrumental for the purpose of
the taking of remedial measures after an armed conflict, 1367 such as, for instance, keeping a
record of the placement of landmines. Obligations to grant access to and/or share
information which provide protection for the environment in relation to armed conflicts
have been listed above. Also relevant is paragraph 2 of article 9 on “Recording and use of
information on minefields, mined areas, mines, booby-traps and other devices” of Protocol
II to the Convention on Certain Conventional Weapons, as well as article 4, paragraph 2, on
“Recording, retaining and transmission of information” of Protocol V to the Convention on
Certain Conventional Weapons.
(5) Furthermore, this expression reflects that the obligations to grant access to and/or
share information as contained in the relevant treaties are commonly accompanied by
exceptions or limitations regarding grounds for which the disclosure of information may be
refused. Such grounds relate, inter alia, to “national defence and public security” or
situations in which the disclosure would make it more likely that the environment to which
such information related would be damaged.1368
1366 Cf. e.g. UNHCR, Policy on the Protection of Personal Data of Persons of Concern to UNHCR
(2015), available at www.refworld.org/pdfid/55643c1d4.pdf (accessed on 8 July 2019).
1367 Additional Protocol I, art. 33; Geneva Convention I, art. 16; Geneva Convention II, arts. 19 and 42;
Geneva Convention III, art. 23; Geneva Convention IV, art. 137.
1368 See Aarhus Convention, art. 4, para. 4 (b); Convention for the Protection of the Marine Environment
of the North-East Atlantic (Paris, 22 September 1992), United Nations, Treaty Series, vol. 2354, No.
42279, p. 67, art. 9, para. 3 (g). See also the Regional Agreement on Access to Information, Public
Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú
Agreement), article 5, paragraph 6 (b).
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(6) While the term “share” refers to information provided by States and international
organizations in their mutual relations and as a means of cooperation, the term “granting
access” refers primarily to allowing access to individuals for example to such information,
and thus signifies a more unilateral relationship.
(7) The obligation to share and grant access to information pertaining to the
environment can be found in numerous sources of international law, both at global and
regional level.
(8) The origins of the right to access to information in modern international human
rights law can be found in article 19 of the Universal Declaration of Human Rights, 1369 as
well as in article 19 of the International Covenant on Civil and Political Rights.1370 General
comment No. 34 on article 19 of the International Covenant on Civil and Political Rights
provides that article 19, paragraph 2, should be read as including a right to access to
information held by public bodies.1371
(9) A right to environmental information has also developed within the context of the
European Convention on Human Rights as exemplified in the case of Guerra and Others v.
Italy,1372 in which the European Court of Human Rights decided that the applicants had a
right to environmental information on the basis of article 8 of the Convention (the right to
family life and privacy). Reference can also be made to the European Union directive on
public access to environmental information and to a related judgment of the European
Court of Justice of 2011.1373 In addition to the right to privacy, a right to environmental
information has also been based on the right to freedom of expression (as in e.g. Claude-
Reyes et al. v. Chile before the Inter-American Court of Human Rights). 1374
(10) Principle 10 of the 1992 Rio Declaration also provides that individuals shall have
appropriate access to information, including on hazardous materials. The recently adopted
Sustainable Development Goal 16 on peaceful and inclusive societies calls upon States to
ensure public access to information concerning the environment and protect fundamental
freedoms, in accordance with national legislation and international agreements. 1375
(11) Article 2 of the Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)
defines “environmental information” as any information pertaining to the state of elements
of the environment, factors affecting or likely to affect elements of the environment, as well
as the state of human health and safety insofar as it may be affected by these elements. 1376
Article 4 of the Aarhus Convention stipulates that State parties must “make such
[environmental] information available to the public, within the framework of national
legislation”. Such a right necessarily entails a duty for States to collect such environmental
information for the purposes of making it available to the public if and when requested to
do so. In addition, the Regional Agreement on Access to Information, Public Participation
and Justice in Environmental Matters in Latin America and the Caribbean (Escazú
Agreement), adopted on 4 March 2018, comprises similar provisions.
(12) The United Nations Framework Convention on Climate Change addresses access to
information in its article 6, noting that the Parties shall “[p]romote and facilitate at the
national and, as appropriate, subregional and regional levels, and in accordance with
national laws and regulations, and within their respective capacities: … public access to
1369 General Assembly resolution 217 (III) A of 10 December 1948.

1370 New York, 16 December 1966, United Nations, Treaty Series, vol. 993, No. 14531, p. 3.
1371 Human Rights Committee, general comment No. 34 (2011) on article 19 (freedoms of opinion and
expression), Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 40, vol. I
(A/66/40 (Vol. I), annex V, para. 18.
1372 Guerra and Others v. Italy, 19 February 1998, Reports of Judgments and Decisions 1998-I.
1373 Directive 2003/4/EC of the European Parliament and of the Council on public access to
environmental information; Office of Communications v. Information Commissioner, case C-71/10,
judgment of 28 July 2011.
1374 Case of Claude-Reyes et al. v. Chile, Inter-American Court of Human Rights, Judgement of 19
September 2006 (merits, reparations and costs), Series C, No. 151 (2006).
1375 General Assembly resolution 70/1 of 25 September 2015.
1376 Aarhus Convention, art. 2.
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information on climate change and its effects”.1377 In addition, the Cartagena Protocol on
Biosafety to the Convention stipulates that Parties shall promote and facilitate access to
information on living modified organisms. 1378 Both the Rotterdam Convention on the Prior
Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in
International Trade,1379 and the Stockholm Convention on Persistent Organic Pollutants 1380
contain provisions on access to information. Similarly, article 18 of the 2013 Minamata
Convention on Mercury1381 stipulates that Parties shall “promote and facilitate” access to
such information. The recently concluded Paris Agreement similarly addresses access to
information in numerous paragraphs and articles, e.g. as part of the responsibility for States
to provide intended nationally determined contributions in article 4, paragraph 8, of the
Agreement, and more generally regarding climate change education and public access to
information in article 12.1382
(13) In accordance with the United Nations Convention to Combat Desertification in
Those Countries Experiencing Serious Drought and/or Desertification, particularly in
Africa, Parties thereto shall make information on desertification “fully, openly and
promptly available”. 1383 Similarly, the 2010 Bali Guidelines provide that “affordable,
effective and timely access to environmental information held by public authorities upon
request” should be ensured.1384
(14) Within the particular regime of humanitarian demining and remnants of war, a
number of instruments contain requirements on providing environmental information. For
instance, a request to extend the deadline for completing the clearance and destruction of
cluster munition remnants under the Convention on Cluster Munitions must outline any
potential environmental and humanitarian impacts of such an extension. 1385 Similarly, in
connection to the destruction of cluster munitions, the “location of all destruction sites and
the applicable safety and environmental standards” must be outlined.1386 Similar obligations
are contained in the Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on their Destruction. 1387 Reference can also be made
to the International Mine Action Standard 10.70, which states, inter alia, that national mine
action authorities should “promulgate information about significant environmental
incidents to other demining organizations within the programme”.1388
(15) Regarding the practice of international organizations, the Environmental Policy for
United Nations Field Missions of 2009 stipulates that peacekeeping missions shall assign
an Environmental Officer with the duty to “[p]rovide environmental information relevant to
the operations of the mission and take actions to promote awareness on environmental
1377 United Nations Framework Convention on Climate Change (New York, 9 May 1992), ibid., vol.
1771, No. 30882, p. 107.
1378 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, art. 23.
1379 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals
and Pesticides in International Trade, art. 15.
1380 Stockholm Convention on Persistent Organic Pollutants, art. 10.
1381 Text available from https://treaties.un.org (Status of Multilateral Treaties Deposited with the
Secretary-General, chap. XXVII.17).
1382 Report of the Conference of the Parties to the United Nations Framework Convention on Climate
Change on its twenty-first session, held in Paris from 30 November to 13 December 2015, addendum:
decisions adopted by the Conference of the Parties (FCCC/CP/2015/10/Add.1), decision 1/CP.21,
annex.
1383 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious
Drought and/or Desertification, particularly in Africa (Paris, 14 October 1994), United Nations,
Treaty Series, vol. 1954, No. 33480, p. 3, art. 16, also art. 19.
1384 United Nations Environment Programme, Guidelines for the development of national legislation on
access to information, public participation and access to justice in environmental matters, adopted by
the Governing Council of the United Nations Environment Programme in decision SS.XI/5, part A, of
26 February 2010. Available from www.unep.org, under “Resources”.
1385 Art. 4, para. 6 (h).
1386 Art. 7 (transparency measures), para. 1 (e).
1387 Art. 5.
1388 IMAS 10.70, 1 October 2007, “Safety and occupational health, protection of the environment”, para.
12.1 (a). Available from www.mineactionstandards.org.
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issues”.1389 The policy also contains a requirement to disseminate and study information on
the environment, which would presuppose access to information that can in fact be
disseminated and that thus is not classified.
(16) Moreover, the ICRC Guidelines for Military Manuals and Instructions on the
Protection of the Environment in Times of Armed Conflict contain a provision on
protection of organizations,1390 which could include environmental organizations gathering
environmental data as a means of “contributing to prevent or repair damage to the
environment”.1391
(17) In connection with post-armed conflict environmental assessments, it is worth
recalling that the United Nations Environment Programme guidelines on integrating
environment in post-conflict assessments include a reference to the importance of public
participation and access to information, as “natural resource allocation and management is
done in an ad-hoc, decentralized, or informal manner” in post-conflict contexts.1392
(18) The obligation to share information and to cooperate in this context is reflected in
the Convention on the Law of the Non-navigational Uses of International Watercourses.1393
Moreover, the Convention on Biological Diversity contains a provision on exchange of
information in its article 14, requiring that each Contracting Party shall, as far as possible
and as appropriate, promote “notification, exchange of information and consultation on
activities under their jurisdiction or control which are likely to significantly affect adversely
the biological diversity of other States or areas beyond the limits of national jurisdiction, by
encouraging the conclusion of bilateral, regional or multilateral arrangements, as
appropriate”.1394 In addition, article 17 of the Convention calls upon the Parties to facilitate
the exchange of information relevant to the conservation and sustainable use of biological
diversity.
(19) Previous work of the Commission of relevance to this aspect of the draft principle
includes the articles on nationality of natural persons in relation to the succession of States
(1999), 1395 the articles on prevention of transboundary harm from hazardous activities
(2001),1396 the principles on the allocation of loss in the case of transboundary harm arising
out of hazardous activities (2006)1397 and the articles on the law of transboundary aquifers
(2008).1398
(20) Paragraph 2 serves a similar purpose in the context of draft principle 24. The
exception to the obligation set out under paragraph 1 concerns information vital to the
national defence of a State or the security of a State or an international organization. This
exception is not absolute. The second sentence of the paragraph provides that States and
international organizations shall provide as much information as possible under the
1389 United Nations, Department of Peacekeeping Operations and Department of Field Support,
“Environmental Policy for UN Field Missions”, 2009, para. 23.5.
1390 See ICRC, Guidelines for Military Manuals and Instructions on the Protection of the Environment in
Times of Armed Conflict (footnote 973 above), guideline 19, referring to Geneva Convention IV, art.
63, para. 2, and Additional Protocol I, arts. 61–67.
1391 It should be noted that guideline 19 refers to pursuant to special agreements between the parties
concerned or permission granted by one of them.
1392 United Nations Environment Programme, Guidance Note, Integrating Environment in Post-Conflict
Needs Assessments (Geneva, 2009), available from
http://postconflict.unep.ch/publications/environment_toolkit.pdf (accessed on 8 July 2019) (as
referenced in para. 144 and footnote 237 of A/CN.4/700).
1393 Convention on the Law of the Non-navigational Uses of International Watercourses, arts. 9, 11, 12,
14–16, 19, 30, 31 and 33, para. 7.
1394 Art. 14, para. 1 (c).
1395 General Assembly resolution 55/153 of 12 December 2000, annex, art. 18. The draft articles and the
commentaries thereto are reproduced in Yearbook … 1999, vol. II (Part Two), paras. 47–48.
1396 Arts. 8, 12–14 and 17.
1397 General Assembly resolution 61/36 of 4 December 2006, annex, principle 5. The draft principles and
the commentaries thereto are reproduced in Yearbook … 2006, vol. II (Part Two), paras. 66–67.
1398 General Assembly resolution 63/124 of 11 December 2008, annex, arts. 8, 13, 15, 17 and 19. The
draft articles adopted by the Commission and commentaries thereto are reproduced in Yearbook …
2008, vol. II (Part Two), paras. 53–54.
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circumstances, through cooperation in good faith. Paragraph 2 is based on provisions

contained in the Convention on the Law of the Non-navigational Uses of International
Watercourses. Article 31 of the Convention provides that a watercourse State is not obliged
to provide data and information vital to its national defence or security, while noting that
obligation to cooperate in good faith is still applicable. The articles on prevention of
transboundary harm from hazardous activities 1399 and the articles on the law of
transboundary aquifers1400 contain a similar exception.
(21) Draft principle 24 is closely linked to the duty to cooperate, as well as draft principle
25 on post-armed conflict environmental assessments and remedial measures.
Principle 25
Post-armed conflict environmental assessments and remedial measures
Cooperation among relevant actors, including international organizations, is
encouraged with respect to post-armed conflict environmental assessments and
remedial measures.
Commentary
(1) The purpose of draft principle 25 is to encourage relevant actors to cooperate in
order to ensure that environmental assessments and remedial measures can be carried out in
post-conflict situations. The draft principle is closely linked to draft principle 8.
(2) The reference to “relevant actors” includes both State and non-State actors. Not only
States, but also a wide range of actors, including international organizations and non-State
actors, have a role to play in relation to environmental assessments and remedial measures.
The phrase “are encouraged” is hortatory in nature and is to be seen as an acknowledgment
of the scarcity of practice in this field.
(3) The term “environmental assessment” is distinct from an “environmental impact
assessment”, which is typically undertaken ex ante as a preventive measure.1401 Such impact
assessments play an important role in the preparation and adoption of plans, programmes,
and policies and legislation, as appropriate. This may involve the evaluation of the likely
environmental, including health, effects, in a plan or programme. 1402
(4) It is in this context that a post-conflict environmental assessment has emerged as a
tool to mainstream environmental considerations in the development plans in the post-
conflict phase. Such assessments are typically intended to identify major environmental
risks to health, livelihoods and security and to provide recommendations to national
authorities on how to address them. 1403 A post-conflict environmental assessment is
intended to meet various needs and policy processes, which, depending on the requirements,
are distinct in scope, objective and approach. 1404 Such post-conflict environmental
assessment, undertaken at the request of a State, may take the form of: (a) a needs
assessment;1405 (b) a quantitative risk assessment;1406 (c) a strategic assessment;1407 or (d) a
1399 Art. 14.

1400 Art. 19.
1401 See, for instance, Convention on Environmental Impact Assessment in a Transboundary Context
(Espoo, 25 February 1991), United Nations, Treaty Series, vol. 1989, No. 34028, p. 309.
1402 Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact
Assessment in a Transboundary Context, available at www.unece.org/fileadmin/DAM/env/
eia/documents/legaltexts/protocolenglish.pdf (accessed on 8 July 2019).
1403 Post-crisis environmental assessment, available at www.unenvironment.org/explore-topics/disasters-
conflicts/what-we-do/preparedness-and-response/post-crisis-environmental (accessed on 8 July 2019).
1404 D. Jensen, “Evaluating the impact of UNEP’s post conflict environmental assessments”, Assessing
and Restoring Natural Resources in Post-Conflict Peacebuilding, Jensen and S. Lonergan (eds.).
Available at https://environmentalpeacebuilding.org/assets/Documents/
LibraryItem_000_Doc_061.pdf (accessed on 8 July 2019), p. 18.
1405 A needs assessment and desk study can be done during or after a conflict, based on a collection pre-
existing secondary information on environmental trends and natural resource management, challenges
from international and national sources. Such information, with limited verification field visits, is then
compiled into a desk study report that attempts to identify and prioritize environmental needs. Ibid.,
pp. 18–19.
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comprehensive assessment. 1408 The comprehensive assessment of Rwanda, for example,

involved a scientific expert evaluation and assessment, covering a range of activities,
including scoping, desk study, field work, environmental sampling, geographic information
system modelling, analysis and reporting and national consultations. It is readily
acknowledged that “conflicts often have environmental impacts, direct or indirect, that
affect human health and livelihoods as well as ecosystem services”.1409
(5) Such assessments are encouraged because, if the environmental impacts of armed
conflict are left unattended, there is strong likelihood that they may lead to “further
population displacement and socio-economic instability”, thereby “undermining recovery
and reconstruction in post-conflict zones” and “triggering a vicious cycle”.1410
(6) In order to align the text with other draft principles, in particular draft principle 2,
the term “remedial” is used in the present principle even though “recovery” has a more
prominent usage in the practice. Once an assessment is completed, the challenge is to
ensure that environmental recovery programmes are in place that aim at strengthening the
national and local environmental authorities, rehabilitate ecosystems, mitigate risks and
ensure sustainable utilization of resources in the context of the concerned State’s
development plans. 1411 The term “remedial measures” has a more limited remit than
“recovery”.
Principle 26
Relief and assistance
When, in relation to an armed conflict, the source of environmental damage
is unidentified, or reparation is unavailable, States are encouraged to take
appropriate measures so that the damage does not remain unrepaired or
uncompensated, and may consider establishing special compensation funds or
providing other forms of relief or assistance.
Commentary
(1) The purpose of draft principle 26 is to encourage States to take appropriate measures
aimed at repairing and compensating environmental damage caused during armed conflict.
More specifically, it addresses relief and assistance in situations where the source of
environmental damage is unidentified or reparation is not available. Such a situation may
arise because of different reasons. The particular features of environmental damage may
complicate the establishment of responsibility: the damage may result from a chain of
events rather than from a single act, and extend over the course of many years, which
makes it difficult to establish a causal link to specific acts. 1412 The presence of multiple
1406 A quantitative risk assessment, involving field visits, laboratory analysis and satellite imagery,
focuses on the direct environmental impact of conflicts caused by bombing and destruction of
buildings, industrial sites, and public infrastructure. Ibid., pp. 19–20.
1407 A strategic assessment evaluates the indirect impact of the survival and coping strategies of local
people and the institutional problems caused by the breakdown of governance and capacity. These
tend to be longer in duration. Ibid., p. 20.
1408 A comprehensive assessment seeks to provide a detailed picture of each natural resource sector and
the environmental trends, governance challenges, and capacity needs. Based on national consultations
with stakeholders, comprehensive assessments attempt to identify priorities and cost the required
interventions over the short, medium, and long term. Ibid., p. 20.
1409 DAC Network on Environment and Development Cooperation (ENVIRONET), “Strategic
environment assessment and post-conflict development SEA toolkit” (2010), p. 4, available at
http://content-ext.undp.org/aplaws_publications/2078176/Strategic%20Environment%20
Assessment%20and%20Post%20Conflict%20Development%20full%20version.pdf (accessed on 8
July 2019).
1410 Ibid.
1411 United Nations Environment Programme, “Disasters and Conflicts Programme”, p. 3. Available at
www.un.org/en/events/environmentconflictday/pdf/UNEP_conflict_and_disaster_brochure.pdf
1412 “First, the distance separating the source from the place of damage may be dozens or even hundreds
of miles, creating doubts about the causal link even where polluting activities can be identified.”;
“Second, the noxious effects of a pollutant may not be felt until years or decades after the act.”;
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State and non-State actors in contemporary conflicts may further complicate the allocation
of responsibility. 1413 Environmental damage in armed conflict may moreover result from
lawful activities, 1414 and there may be no means of establishing the responsibility and
claiming reparation.1415
(2) It is furthermore not uncommon that States and international organizations use ex
gratia payments to make amends for wartime injury and damage without acknowledging
responsibility, and possibly also excluding further liability. Such payments serve different
purposes and may be available for damage and injury caused by lawful action. 1416 In most
cases, amends are paid for civilian injury or death, or damage to civilian property, but they
may also entail remediation of harm to the environment. Victims assistance is a broader and
“Third, some types of damage occur only if the pollution continues over time”; and “Fourth, the same
pollutant does not always produce the same detrimental effects due to important variations in physical
circumstances.”. A.C. Kiss and D. Shelton, Guide to International Environmental Law (Leiden,
Martinus Nijhoff, 2007), pp. 20–21. See also P.-M. Dupuy, “L’État et la réparation des dommages
catastrophiques”, in F. Francioni and T. Scovazzi (eds.), International Responsibility for
Environmental Harm (Boston, Graham and Trotman, 1991), pp. 125–147, p. 141, who describes the
inherent characteristics of ecological damage as follows: “au-delà de ses incidences immédiates et
souvent spectaculaires, il pourra aussi être diffus, parfois différé, cumulatif, indirect” [beyond its
immediate and often spectacular consequences, it could also be pervasive, sometimes deferred,
cumulative, indirect]. See also C.R. Payne, “Developments in the law of environmental reparations. A
case study of the UN Compensation Commission”, in C. Stahn, J. Iverson, and J.S. Easterday (eds.),
Environmental Protection and Transitions from Conflict to Peace (footnote 1180 above), pp. 329–
366, p. 353. For the definition of environmental harm, see Sands, Principles of International
Environmental Law (footnote 1172 above), pp. 741–748.
1413 See ICRC, “International humanitarian law and the challenges of contemporary armed conflicts”,
document prepared for the 32nd International Conference of the Red Cross and Red Crescent (2015),
International Review of the Red Cross, vol. 97 (2015), pp. 1427–1502, at pp. 1431–1432.
1414 This would arguably be the case with most environmental harm in conflict, given that the specific
prohibitions in the law of armed conflict “do not address normal operational damage to the
environment that is left after hostilities cease, from sources such as the use of tracked vehicles on
fragile desert surfaces; disposal of solid, toxic, and medical waste; depletion of scarce water
resources; and incomplete recovery of ordnance”, as pointed out by C.R. Payne, “The norm of
environmental integrity in post-conflict legal regimes”, in C. Stahn, J.S. Easterday and J. Iverson
(eds.), Jus Post Bellum: Mapping the Normative Foundation (Oxford, Oxford University Press,
2014), pp. 502–518, at p. 511. See draft principle 14 and para. (8) of the commentary thereto above.
1415 For the history of wartime reparations, see P. d’Argent, Les réparations de guerre en droit
international public. La responsabilité internationale des États à l’épreuve de la guerre (Brussels,
Bruylant, 2002). See also ICRC commentary (1987) to Additional Protocol I, art. 91, para. 3651: “On
the conclusion of a peace treaty, the Parties can in principle deal with the problems relating to war
damage in general and those relating to the responsibility for starting the war, as they see fit.” The
United Nations Compensation Commission’s experience was groundbreaking in the area of
reparations for wartime environmental harm (see footnote 1091 above). The other relevant
international instances of either addressing wartime environmental damage or having the potential to
do so include: the Eritrea-Ethiopia Claims Commission that was established in 2000 (see Agreement
on Cessation of Hostilities between the Government of the Federal Democratic Republic of Ethiopia
and the Government of the State of Eritrea (Algiers, 18 June 2000), United Nations, Treaty Series,
vol. 2138, No. 37273, p. 85, and Agreement between the Government of the Federal Democratic
Republic of Ethiopia and the Government of the State of Eritrea for the resettlement of displaced
persons, as well as rehabilitation and peacebuilding in both countries (Algiers, 12 December 2000),
ibid., No. 37274, p. 93); and the 2004 Advisory Opinion of the International Court of Justice
concerning the construction of a wall in the Occupied Palestinian Territories, see Legal Consequences
of the Construction of a Wall (footnote 1274 above), p. 189, para. 131, and p. 192, para. 136. See also
Armed Activities on the Territory of the Congo (footnote 1241 above), p. 257, para. 259.
1416 University of Amsterdam and Center for Civilians in Conflict, “Monetary payments for civilian harm
in international and national practice” (2015). See also United States, Government Accountability
Office, “Military operations. The Department of Defense’s use of solatia and condolence payments in
Iraq and Afghanistan”, Report, May 2007; and W.M. Reisman, “Compensating collateral damage in
elective international conflict”, Intercultural Human Rights Law Review, vol. 8 (2013), pp. 1–18.
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more recent concept used in relation to armed conflicts – but also in other contexts – to
respond to harm caused to individuals or communities, inter alia by military activities.1417
(3) An example of environmental remediation in a situation in which the establishment
or implementation of State responsibility is not possible is provided by the assistance to
Lebanon following the bombing of the Jiyeh power plant in 2006. After the strike on the
power plant on the Lebanese coast by Israeli Armed Forces, an estimated 15,000 tons of oil
were released into the Mediterranean Sea. 1418 Following requests for assistance from the
Government of Lebanon, the Regional Marine Pollution Emergency Response Centre for
the Mediterranean Sea provided remote and on-site technical assistance in the cleanup.
Assistance was provided pursuant to the 2002 Protocol concerning Cooperation in
Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the
Mediterranean Sea, one of protocols to the Barcelona Convention.1419 The amends related to
the use of Agent Orange (a herbicide containing the toxic substance dioxin), by the United
States in the Viet Nam War provide an example of ex gratia response to environmental and
health effects of armed conflict.1420
(4) The term “reparation” is used in the draft principle as a general notion that covers
different forms of reparation for an internationally wrongful act. 1421 The context, however,
is one in which reparation is unavailable, including where there has been no wrongful act.
The term “unrepaired” similarly refers to the lack of any reparative measures, while
“uncompensated” refers specifically to the lack of monetary compensation. These terms
define the specific circumstances in which States are encouraged to take appropriate
measures of relief and assistance. Such measures may include establishment of a
compensation fund.1422 The terms “relief” and “assistance” should also be read as including
remedial measures in the sense in which the term has been used in the present draft
1417 See, e.g., Handicap International, “Victim Assistance in the context of mines and explosive remnants
of war”, Handicap International (July 2014). Available at https://handicap-
international.ch/files/documents/files/assistance-victimes-mines-reg_anglais.pdf (accessed on 8 July
2019). See also International Human Rights Clinic, Harvard Law School, “Environmental
remediation under the treaty on the prohibition of nuclear weapons” (April 2018). Available at
http://hrp.law.harvard.edu/wp-content/uploads/2018/04/Environmental-Remediation-short-5-17-18-
final.pdf (accessed on 8 July 2019). See also Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law, General Assembly resolution 60/147 of 16
December 2005, annex. Principle 9 states that “[a] person shall be considered a victim regardless of
whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted”.
1418 United Nations Environment Programme, Lebanon Post-Conflict Environmental Assessment (2007),
pp. 42–45. Available at https://postconflict.unep.ch/publications/UNEP_Lebanon.pdf (accessed on 8
July 2019). See also Office for the Coordination of Humanitarian Affairs, “Environmental emergency
response to the Lebanon crisis”. Available at
www.unocha.org/sites/dms/Documents/Report_on_response_to_the_Lebanon_Crisis.pdf (accessed
on 8 July 2019).
1419 Protocol concerning Cooperation in Preventing Pollution from ships and, in cases of emergency,
combating pollution of the Mediterranean Sea (Valetta, 25 January 2002), United Nations, Treaty
Series, vol. 2942, annex A, No. 16908, p. 87.
1420 See United States, Congressional Research Service, “U.S. Agent Orange/Dioxin Assistance to
Vietnam” (updated on 21 February 2019). Available at https://fas.org/sgp/crs/row/R44268.pdf
1421 Art. 34 and commentary thereto of the articles on State responsibility, Yearbook … 2001, vol. II (Part
Two) and corrigendum, paras. 76–77, at pp. 95–96.
1422 Draft principle 26 has been modelled after article 12 on “Collective reparation” of the Institute of
International Law resolution on responsibility and liability under international law for environmental
damage from 1997 reading as follows: “Should the source of environmental damage be unidentified
or compensation be unavailable from the entity liable or other back-up sources, environmental
regimes should ensure that the damage does not remain uncompensated and may consider the
intervention of special compensation funds or other mechanisms of collective reparation, or the
establishment of such mechanisms where necessary”. International Law Institute, resolution on
“Responsibility and liability under international law for environmental damage”, Yearbook, vol. 67,
Part II, Session of Strasbourg (1997), p. 486, at p. 499.
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principles, encompassing any measure of remediation that may be taken to restore the
environment.1423
(5) Draft principle 26 is closely linked to draft principle 25 on “Post-armed conflict
environmental assessments and remedial measures” as well as to draft principle 24 on
“Sharing and granting access to information”. All three draft principles address situations in
which damage has been caused to the environment in relation to an armed conflict, and they
all refer generally to “States” rather than the parties to a conflict. Unlike draft principles 24
and 25, however, the present draft principle, which has a specific focus on relief and
assistance provided by States, makes no express reference to international organizations. It
is nevertheless understood that States may channel such relief and assistance through
(6) Draft principle 26 has been located in Part Five containing draft principles
applicable after an armed conflict. While it was recognized that it could be preferable to
take measures to address environmental damage already during an armed conflict, given
that environmental damage accumulates and restoration becomes more challenging with
time, the draft principle was seen as primarily relevant in post-armed conflict situations.
Principle 27
Remnants of war
1. After an armed conflict, parties to the conflict shall seek to remove or render
harmless toxic and hazardous remnants of war under their jurisdiction or control that
are causing or risk causing damage to the environment. Such measures shall be
taken subject to the applicable rules of international law.
2. The parties shall also endeavour to reach agreement, among themselves and,
where appropriate, with other States and with international organizations, on
technical and material assistance, including, in appropriate circumstances, the
undertaking of joint operations to remove or render harmless such toxic and
hazardous remnants of war.
3. Paragraphs 1 and 2 are without prejudice to any rights or obligations under
international law to clear, remove, destroy or maintain minefields, mined areas,
mines, booby-traps, explosive ordnance and other devices.
Commentary
(1) Draft principle 27 aims to strengthen the protection of the environment in a post-
conflict situation. It seeks to ensure that toxic and hazardous remnants of war that are
causing or that may cause damage to the environment are removed or rendered harmless
after an armed conflict. This draft principle covers toxic and hazardous remnants of war on
land, as well as those which have been placed or dumped at sea, as long as they fall under
the jurisdiction or control of a former party to the armed conflict. The measures taken shall
be subject to the applicable rules of international law.
(2) Paragraph 1 is cast in general terms. Remnants of war take various forms. They
consist of not only explosive remnants of war but also other hazardous material and objects.
Some remnants of war are not dangerous to the environment at all or may be less dangerous
1423 See para. (3) of the commentary to draft principle 2 above. See also para. (6) of the commentary to
draft principle 25 above. See further S. Hanamoto, “Mitigation and remediation of environmental
damage”, in Y. Aguila and J. Vinuales (eds.), A Global Pact for the Environment – Legal
Foundations (Cambridge, Cambridge University Press, 2019), p. 79: “Mitigation and remediation of
environmental damage aim at ‘avoid[ing], reduc[ing] and, if possible, remedy[ing] significant adverse
effects’ (Article 5(3)(b), Directive 2011/92/EU on the assessment of the effects of certain public and
private projects on the environment to the environment). More precisely, ‘[m]itigation is the use of
practice, procedure or technology to minimise or to prevent impacts associated with proposed
activities’ and ‘[r]emediation consists of the steps taken after impacts have occurred to promote, as
much as possible, the return of the environment to its original condition’ (Antarctic Treaty
Consultative Meeting, Revised Guidelines for Environmental Impact Assessment in Antarctica, 3.5,
2016).”
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if they remain where they are after the conflict is over.1424 In other words, removing the
remnants of war may in some situations pose a higher environmental risk than leaving them
where they are. It is for this reason that the draft principle contains the words “or render
harmless”, to illustrate that in some circumstances it may be appropriate to do nothing, or to
take measures other than removal.
(3) The obligation to “seek to” is one of conduct and relates to “toxic and hazardous
remnants of war” that “are causing or risk causing damage to the environment”. The terms
“toxic” and “hazardous” are often used when referring to remnants of war which pose a
danger to humans or the environment, and it was considered appropriate to use the terms
here. 1425 The term “hazardous” is somewhat wider than the term “toxic”, in that all
remnants of war that pose a threat to humans or the environment may be considered
hazardous, but not all are toxic. The term “toxic remnants of war” does not have a
definition under international law, but has been used to describe “any toxic or radiological
substance resulting from military activities that forms a hazard to humans and
ecosystems”.1426
(4) The reference to “jurisdiction or control” is intended to cover areas within de jure
and de facto control even beyond that established by a territorial link. The term
“jurisdiction” is intended to cover, in addition to the territory of a State, activities over
which, under international law, a State is authorized to exercise its competence and
authority extraterritorially. 1427 The term “control” is intended to cover situations in which a
State (or party to an armed conflict) is exercising de facto control, even though it may lack
de jure jurisdiction.1428 It therefore “refers to the factual capacity of effective control over
activities outside the jurisdiction of a State”.1429
(5) The present draft principle is intended to apply to international as well as non-
international armed conflicts. For this reason, paragraph 1 addresses “parties to a conflict”.
The phrase “party to a conflict” has been used in various provisions of law of armed
1424 For example, this is often the case with chemical weapons that have been dumped at sea. See T.A.
Mensah, “Environmental damages under the Law of the Sea Convention”, The Environmental
Consequences of War: Legal, Economic, and Scientific Perspectives, J.E. Austin and C.E. Bruch
(eds.) (Cambridge, Cambridge University Press, 2000), pp. 226–249. The Chemical Munitions Search
and Assessment (CHEMSEA) is an example of a project of cooperation among the Baltic States,
which is partly financed by the European Union. Information on the CHEMSEA project can be found
at http://ec.europa.eu/regional_policy/en/projects/finland/chemsea-tackles-problem-of-chemical-
munitions-in-the-baltic-sea (accessed on 8 July 2019). See also the Baltic Marine Environment
Protection Commission (Helsinki Commission) website at www.helcom.fi/baltic-sea-
trends/hazardous-substances/sea-dumped-chemical-munitions (accessed on 8 July 2019).
1425 See, for more information, ICRC, “Strengthening legal protection for victims of armed conflicts”,
report prepared for the Thirty-first International Conference of the Red Cross and Red Crescent in
2011, No. 31IC/11/5.1.1 3, p. 18.
1426 See M. Ghalaieny, “Toxic harm: humanitarian and environmental concerns from military-origin
contamination”, discussion paper (Toxic Remnants of War project, 2013), p. 2. See also
www.toxicremnantsofwar.info/new-trw-publication-toxic-harm-humanitarian-and-environmental-
concerns-from-military-origin-contamination/ (accessed on 8 July 2019). For more information on
toxic remnants of war, see also the Geneva Academy, Weapons Law Encyclopedia, available at
www.weaponslaw.org under “Glossary”, which cites ICRC, “Strengthening legal protection for
victims of armed conflicts”, p. 18. See the statements delivered by Austria, Costa Rica, Ireland and
South Africa to the First Committee of the General Assembly as its sixty-eighth session, which are
available from the paper-smart portal at http://papersmart.unmeetings.org.
1427 See para. (9) of the commentary to art. 1 of the articles on prevention of transboundary harm from
hazardous activities, Yearbook … 2001, vol. II (Part Two) and corrigendum, paras. 97–98, at p. 151.
See also General Assembly resolution 62/68 of 6 December 2007, annex.
1428 Para. (12) of the commentary to art. 1, ibid.
1429 A/CN.4/692, para. 33. Concerning the concept of “control”, see Namibia, Advisory Opinion (footnote
1322 above), at p. 54, para. 118, where it states that: “The fact that South Africa no longer has any
title to administer the Territory does not release it from its obligations and responsibilities under
international law towards other States in respect of the exercise of its powers in relation to this
Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State
liability for acts affecting other States.”
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conflict treaties in the context of remnants of war. 1430 It was considered appropriate to use
the term in the present draft principle as it is foreseeable that there may be situations where
there are toxic or hazardous remnants of war in an area where a State does not have full
control. For example, a non-State actor may have control over territory where toxic and
hazardous remnants of war are present.
(6) Paragraph 2 should be read together with paragraph 1. It aims to encourage
cooperation and technical assistance amongst parties to render harmless the remnants of
war referred to in paragraph 1. It should be noted that paragraph 2 does not aim to place any
new international law obligations on parties to cooperate. However, it is foreseeable that
there may be situations where an armed conflict has taken place and a party is not in a
position to ensure that toxic and hazardous remnants of war are rendered harmless. It was
thus considered valuable to encourage parties to cooperate in this regard.
(7) Paragraph 3 contains a without prejudice clause that aims to ensure that there would
be no uncertainty that existing treaty or customary international law obligations prevail.
There are various laws of armed conflict treaties that regulate remnants of war, and
different States thus have varying obligations relating to remnants of war. 1431
(8) The words “clear, remove, destroy or maintain”, as well as the specific remnants of
war listed, namely “minefields, mined areas, mines, booby-traps, explosive ordnance and
other devices”, were specifically chosen and are derived from existing law of armed
conflict treaties to ensure that the paragraph is based on the law of armed conflict as it
exists at present.1432
(9) It should be noted that the draft principle does not directly deal with the issue of
responsibility or reparation for victims on purpose. This is because responsibility to clear,
remove, destroy or maintain remnants of war is already regulated to some extent under the
existing law of armed conflict, at least in the sense that certain treaties identify who should
take action.1433 The draft principle is without prejudice to the allocation of responsibility
and questions of compensation.
1430 See, for example, Protocol II to the Convention on Certain Conventional Weapons, as well as the
Protocol on Explosive Remnants of War, annexed to the Convention on Prohibitions or Restrictions
on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to
have Indiscriminate Effects (Protocol V) (hereinafter, “Protocol V to the Convention on Certain
Conventional Weapons”) (Geneva, 3 May 1996), United Nations, Treaty Series, vol. 2399, No.
22495, p. 100.
1431 See, for example, amended Protocol II to the Convention on Certain Conventional Weapons; Protocol
V to the Convention on Certain Conventional Weapons; Convention on the Prohibition of the Use,
Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Oslo, 18
September 1997), United Nations, Treaty Series, vol. 2056, No. 35597, p. 211; Convention on Cluster
Munitions (Dublin, 30 May 2008), ibid., vol. 2688, No. 47713, p. 39; Convention on the Prohibition
of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction
(Geneva, 3 September 1992), ibid., vol. 1974, No. 33757, p. 45.
1432 See the wording of the amended Protocol II to the Convention on Certain Conventional Weapons;
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on their Destruction; Convention on Cluster Munitions.
1433 See, e.g., art. 3, para. 2, of the amended Protocol II Convention on Certain Conventional Weapons:
“Each High Contracting Party or party to a conflict is, in accordance with the provisions of this
Protocol, responsible for all mines, booby-traps, and other devices employed by it and undertakes to
clear, remove, destroy or maintain them as specified in Article 10 of this Protocol.” Art. 10, para. 2, in
turn provides that: “High Contracting Parties and parties to a conflict bear such responsibility with
respect to minefields, mined areas, mines, booby-traps and other devices in areas under their control.”
In addition, art. 3, para. 2, of Protocol V to the Convention on Certain Conventional Weapons
provides that: “After the cessation of active hostilities and as soon as feasible, each High Contracting
Party and party to an armed conflict shall mark and clear, remove or destroy explosive remnants of
war in affected territories under its control”; Convention on Cluster Munitions, art. 4, para. 1: “Each
State Party undertakes to clear and destroy, or ensure the clearance and destruction of, cluster
munition remnants located in cluster munition contaminated areas under its jurisdiction or control”;
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on their Destruction, art. 5, para. 1: “Each State Party undertakes to destroy or ensure the
destruction of all anti-personnel mines in mined areas under its jurisdiction or control”.
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Principle 28
Remnants of war at sea
States and relevant international organizations should cooperate to ensure
that remnants of war at sea do not constitute a danger to the environment.
Commentary
(1) Unlike the broader draft principle 27, which deals with remnants of war more
generally, draft principle 28 deals with the specific situation of remnants of war at sea
including the long-lasting effects on the marine environment. Draft principle 28 has added
value as draft principle 27 only covers remnants of war under the jurisdiction or control of a
former party to an armed conflict, which means that it is not wide enough to cover all
remnants of war at sea. This draft principle expressly encourages international cooperation
to ensure that remnants of war at sea do not constitute a danger to the environment.1434
(2) Owing to the multifaceted nature of the law of the sea, a particular State could have
sovereignty, jurisdiction, both sovereignty and jurisdiction, or neither sovereignty nor
jurisdiction, depending on where the remnants are located. 1435 It is therefore not surprising
that remnants of war at sea pose significant legal challenges. 1436 For example, the parties to
the armed conflict may have ceased to exist; the coastal State may not have the resources to
ensure that the remnants of war at sea do not constitute a danger to the environment; or the
coastal State may not have been a party to the conflict, but the cooperation of that State
may still be needed in efforts to get rid of remnants. Another foreseeable challenge is that
the party that left the remnants may not have been in violation of its international law
obligations at the time when that happened but these remnants now pose environmental risk.
(3) Accordingly, draft principle 28 addresses States generally, not only those which
have been involved in an armed conflict. It aims to encourage all States, as well as relevant
international organizations,1437 to cooperate to ensure that remnants of war at sea do not
constitute a danger to the environment. The reference to “international organizations” is
qualified with the word “relevant”, in the light of the fact that the issues involved tend to be
specialized.
(4) The words “should cooperate” rather than the more prescriptive “shall cooperate”
were considered appropriate, given that this is an area where practice is still developing.
Cooperation is an important element concerning remnants of war at sea, as the coastal
States negatively affected by remnants of war at sea may not have the resources and thus
not be capable of ensuring that remnants of war at sea do not pose environmental risks.
1434 The need to take cooperative measures to assess and increase awareness of environmental effects
related to waste originating from chemical munitions dumped at sea has been explicitly recognized by
the General Assembly since 2010, including in General Assembly resolution 71/220. The resolution
reaffirms the 2030 Agenda for Sustainable Development and recalls a number of relevant
international and regional instruments. It furthermore notes the importance of raising awareness of the
environmental effects related to waste originating from chemical weapons dumped at sea and invites
the Secretary-General to seek the views of Member States and relevant regional and international
organizations on the cooperative measures envisaged in the resolution and identifying the appropriate
intergovernmental bodies within the United Nations for further consideration and implementation, as
appropriate, of those measures.
1435 See the United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982), United
Nations, Treaty Series, vol. 1833, No. 31363, p. 3. The remnants of war could be located in the
territorial waters, the continental shelf, the exclusive economic zone or on the high seas, and this will
have an impact on the rights and obligations of States.
1436 See A. Lott, “Pollution of the marine environment by dumping: legal framework applicable to
dumped chemical weapons and nuclear waste in the Arctic Ocean”, Nordic Environmental Law
Journal, vol. 1 (2015), pp. 57–69, and W. Searle and D. Moody, “Explosive Remnants of War at Sea:
Technical Aspects of Disposal”, in Explosive Remnants of War: Mitigating the Environmental Effects,
A. Westing (ed.) (Taylor & Francis 1985).
1437 For example, the CHEMSEA project, which was initiated in 2011 as a project of cooperation among
the Baltic States and partly financed by the European Union (see footnote 1424 above).
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(5) There are various ways in which States and relevant international organizations can
cooperate to ensure that remnants of war at sea do not pose environmental risks. For
example, they could survey maritime areas and make the information freely available to the
affected States, they could provide maps with markers, and they could provide
technological and scientific information and information concerning whether the remnants
pose risks or may pose risks in the future.
(6) There is increasing awareness concerning the environmental effects of remnants of
war at sea.1438 Dangers posed to the environment by remnants of war at sea could have
significant collateral damage to human health and safety, especially of seafarers and
fishermen. 1439 The clear link between danger to the environment and public health and
safety has been recognized in several international law instruments, and it was thus
considered particularly important to encourage the cooperation amongst States and
international organizations to ensure that remnants of war at sea do not pose danger. 1440
(7) Draft principle 28 intentionally does not deal with any issues concerning the
allocation of responsibility or compensation for damages regarding remnants of war at sea.
Determining which party has the primary obligation to ensure that remnants of war at sea
do not pose environmental risks is a very complex and delicate issue to define, especially
considering the varied legal nature of the law of the sea, ranging from internal waters to the
high seas.
1438 See General Assembly resolutions 65/149 of 20 December 2010 and 68/208 of 20 December 2013
and A/68/258. See also Mensah, “Environmental damages under the Law of the Sea Convention”, p.
233.
1439 The Baltic Marine Environment Protection Commission (Helsinki Commission), governing body of
the Convention on the Protection of the Marine Environment of the Baltic Sea Area, issued guidelines
for fishermen that encounter sea-dumped chemical munitions at an early stage. For an easily
accessible overview, see the work done by the James Martin Center for Nonproliferation Studies at
www.nonproliferation.org/chemical-weapon-munitions-dumped-at-sea/ (accessed on 8 July 2019).
1440 There is a clear link between danger to the environment and public health and safety. See, for
example, article 55, paragraph 1, of Additional Protocol I provides for the protection of the natural
environment in international armed conflicts and prohibits the use of means and methods of warfare
which are intended or may be expected to cause environmental damage and thereby prejudice the
health of the population; article 1, paragraph 2, of the Convention on the Protection and Use of
Transboundary Watercourses and International Lakes stipulates that adverse effects on the
environment include: “effects on human health and safety, flora, fauna, soil, air, water, climate,
landscape and historical monuments or other physical structures or the interactions among these
factors; they also include effects on the cultural heritage or socio-economic conditions resulting from
alterations to those factors”.
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Chapter VII
Succession of States in respect of State responsibility
A. Introduction
72. At its sixty-ninth session (2017), the Commission decided to include the topic
“Succession of States in respect of State responsibility” in its programme of work and
appointed Mr. Pavel Šturma as Special Rapporteur. 1441 The General Assembly subsequently,
in its resolution 72/116 of 7 December 2017, took note of the decision of the Commission
to include the topic in its programme of work.
73. At the same session, the Commission considered the first report of the Special
Rapporteur (A/CN.4/708), which set out the Special Rapporteur’s approach to the scope
and outcome of the topic, and provided an overview of general provisions relating to the
topic. Following the debate in plenary, the Commission decided to refer draft articles 1 to 4,
as contained in the first report of the Special Rapporteur, to the Drafting Committee. The
Commission subsequently took note of the interim report of the Chair of the Drafting
Committee regarding draft articles 1 and 2, provisionally adopted by the Committee, which
was presented to the Commission for information only. 1442
74. At its seventieth session (2018), the Commission considered the second report of the
Special Rapporteur (A/CN.4/719), which addressed the legality of succession, the general
rules on succession of States in respect of State responsibility, and certain special categories
of State succession to the obligations arising from responsibility. Following the debate in
plenary, the Commission decided to refer draft articles 5 to 11, as contained in the second
report of the Special Rapporteur, to the Drafting Committee. The Commission subsequently
took note of the interim report of the Chair of the Drafting Committee on draft article 1,
paragraph 2, and draft articles 5 and 6, provisionally adopted by the Committee, which was
presented to the Commission for information only. 1443
75. At the present session, the Commission had before it the third report of the Special
Rapporteur (A/CN.4/731). The Commission also had before it a memorandum by the
Secretariat providing information on treaties which may be of relevance to its future work
on the topic (A/CN.4/730).
76. In his third report, which is composed of four parts, the Special Rapporteur first
addressed introductory issues, including certain general considerations (Part One).
Thereafter, the Special Rapporteur discussed questions of reparation for injury resulting
from internationally wrongful acts committed against the predecessor State, considering, in
particular, claims for reparation in different categories of State succession, as well as
various approaches to reparation for injury arising from internationally wrongful acts
committed against the nationals of the predecessor State (Part Two). Further, the Special
Rapporteur made technical proposals in relation to the scheme of the draft articles (Part
Three). The future programme of work on the topic was then addressed (Part Four). The
Special Rapporteur proposed several new draft articles (draft articles 2, paragraph (f), X, Y,
12, 13, 14 and 15) and suggested that the draft articles be organized into three parts (Parts
One, Two and Three) with proposed titles for Parts Two and Three.1444
1441 At its 3354th meeting, on 9 May 2017. The topic had been included in the long-term programme of
work of the Commission during its sixty-eighth session (2016), on the basis of the proposal contained
in annex B to the report of the Commission (Official Records of the General Assembly, Seventy-first
Session, Supplement No. 10 (A/71/10)).
1442 The interim report of the Chair of the Drafting Committee is available in the analytical guide to the
work of the International Law Commission: http://legal.un.org/ilc/guide/3_5.shtml.
1443 Ibid.
1444 The text of draft articles 2, paragraph (f), X, Y, 12, 13, 14 and 15, and the titles of Part II and Part III,
as proposed by the Special Rapporteur in his third report, reads as follows:
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Draft article 2
Use of terms
For the purposes of the present draft articles: …
(f) “States concerned” means, in respect of a case of succession of States, a State which
before the date of succession of States committed an internationally wrongful act, a State injured
by such act and a successor State or States of any of these States; …
Title for Part II – Reparation for injury resulting from internationally acts committed by the
predecessor State
Draft article X
Scope of Part II
The provisions of this Part apply to reparation for injury resulting from internationally
wrongful acts committed by the predecessor State for which the injured State did not receive full
reparation before the date of succession of States.
Title for Part III – Reparation for injury resulting from internationally wrongful acts committed
against the predecessor State
Draft article Y
Scope of the present Part
The articles in the present Part apply to reparation for injury resulting from internationally
wrongful acts committed against the predecessor State for which this State did not receive full
reparation before the date of succession of States.
Draft article 12
Cases of succession of States when the predecessor State continues to exist
1. In the cases of succession of States:
(a) when part of the territory of a State, or any territory for the international relations of
which a State is responsible, not being part of the territory of that State, becomes part of the
territory of another State; or
(b) when a part or parts of the territory of a State separate to form one or more States,
while the predecessor State continues to exist; or
(c) when a successor State is a newly independent State the territory of which
immediately before the date of the succession of States was a dependent territory for the
international relations of which the predecessor State was responsible;
the predecessor State injured by an internationally wrongful act of another State may request from
this State reparation even after the date of succession of States.
2. Notwithstanding paragraph 1, the successor State may request from the responsible State
reparation in special circumstances where the injury relates to the part of the territory or the
nationals of the predecessor State that became the territory or nationals of the successor State.
3. The provisions of paragraphs 1 and 2 are without prejudice to any question of compensation
between the predecessor State and successor State.
Draft article 13
Uniting of States
1. When two or more States unite and so form one successor State, the successor State may
request reparation from the responsible State.
2. Paragraph 1 applies unless the States concerned otherwise agree.
Draft article 14
Dissolution of States
1. When parts of the territory of the State separate to form two or more States and the
predecessor State ceases to exist, one or more successor States may request reparation from the
responsible State.
2. Such claims and agreements should take into consideration a nexus between the consequences
of an internationally wrongful act and the territory or nationals of the successor State, an equitable
proportion and other relevant factors.
3. The provisions of paragraphs 1 and 2 are without prejudice to any question of compensation
between the successor States.
Draft article 15
Diplomatic protection
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77. The Commission considered the third report of the Special Rapporteur at its 3475th
to 3480th meetings, from 8 to 15 July 2019. At its 3480th meeting, on 15 July 2019, the
Commission decided to refer draft articles 2, paragraph (f), X, Y, 12, 13, 14 and 15, and the
titles of Part Two and Part Three, as contained in the third report of the Special Rapporteur,
to the Drafting Committee, taking into account the views expressed in the plenary debate.
78. At its 3489th meeting, on 24 July 2019, the Commission considered a first report of
the Drafting Committee on the topic1445 and provisionally adopted draft articles 1, 2 and 5,
which had been provisionally adopted by the Drafting Committee at the sixty-ninth and
seventieth sessions (see section C.1 below).
79. At its 3495th meeting, on 31 July 2019, the Chair of the Drafting Committee
presented an interim report on draft articles 7, 8 and 9, provisionally adopted by the
Committee at the present session. The report was presented for information only and is
available on the website of the Commission. 1446 The Commission took note of the draft
articles as presented by the Drafting Committee.
80. At its 3507th meeting, on 9 August 2019, the Commission adopted the
commentaries to draft articles 1, 2 and 5 provisionally adopted at the present session (see
section C.2 below).
1. Introduction by the Special Rapporteur of the third report

81. The Special Rapporteur indicated that Part One of his third report recalled the work
of the Commission on the topic so far and the summary of the debate in the Sixth
Committee of the General Assembly. Reiterating that he was attentive to comments made
in the Commission and in the Sixth Committee, the Special Rapporteur stressed that he was
open to suggestions regarding his proposals. The report aimed to follow the programme of
work, as previously outlined, without undue haste. Apart from one new definition and two
provisions on the scheme of the draft articles, only four new substantive draft articles were
proposed. Further, the report clarified the Special Rapporteur’s approach to the topic, which
excluded both the automatic extinction of responsibility and the automatic transfer of
responsibility in cases of succession of States. As to the fact that complex situations may
occur when a claim for reparation is invoked by the predecessor State and one or more
successor States, the Special Rapporteur indicated that this issue will be addressed in his
fourth report. He also considered it useful to state expressly that the draft articles only
covered situations when injury was not made good by reparation before the date of
succession of States and he proposed draft articles X and Y to that effect.
82. Part Two of the report, dealing with reparation for injury resulting from
internationally wrongful acts committed against the predecessor State, addressed the so-
called “passive” aspect of State responsibility where succession of States occurs in relation
to the injured State. Unlike the resolution of the Institute of International Law on
succession of States in matters of international responsibility, the Special Rapporteur
proposed analysing the possible transfer of rights separately from that of obligations, taking
into account that an important difference between the question of succession to the right to
reparation, on one hand, and the question of succession to obligations arising from State
responsibility, on the other hand, was that the right to reparation was a consequence of the
1. The successor State may exercise diplomatic protection in respect of a person who is its
national at the date of the official presentation of the claim but was not a national at the date of
injury, provided that the person or the corporation had the nationality of a predecessor State or
lost his or her nationality and acquired, for a reason unrelated to the bringing of the claim, the
nationality of the former State in a manner not inconsistent with international law.
2. Under the same conditions set in paragraph 1, a claim in exercise of diplomatic protection
initiated by the predecessor State may be continued after the date of succession by the successor
State.
3. Paragraphs 1 and 2 are without prejudice to application of rules of State responsibility relating
to the nationality of claims and rules of diplomatic protection.
1445 The report and the corresponding statement of the Chair of the Drafting Committee are available in
the analytical guide to the work of the International Law Commission (see footnote 1442 above).
1446 Ibid.
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internationally wrongful act of the responsible State which remained unaffected by the
territorial changes giving rise to the succession of States.
83. In addition, the Special Rapporteur distinguished between situations when the
predecessor State continued to exist after the date of succession and when the predecessor
State ceased to exist. When the predecessor State continued to exist, succession would not
affect its right to claim reparation from the wrongdoing State for acts committed before the
date of succession. Such claim was based on the rules governing the responsibility of States
for internationally wrongful acts. However, that did not answer all questions that could
arise when the injury primarily or exclusively affected part of the territory which became
part of the successor State. In situations such as decolonization, separation or transfer of
territory, when the injury affected persons who subsequently became nationals of the
successor State, the Special Rapporteur considered it unlikely that the predecessor State
could still claim reparation after the date of succession. In contrast, according to the
prevailing opinion in doctrine, when the predecessor State ceased to exist, the right to
reparation did not devolve from the predecessor State to the successor State. The Special
Rapporteur cautioned, however, against the discriminatory treatment of States when
continuity was disputed, considering that the distinction made between cases of dissolution
and separation of a State was often based on broader political considerations rather than
objective criteria. Moreover, the idea of a “personal” right to claim reparation belonging
only to the predecessor State seemed to reflect a traditional positivist doctrine, which
viewed State responsibility as closely linked to legal personality, and not as a body of
secondary rights and obligations.
84. Further, the report provided an analysis of claims for reparation in different
categories of succession of States based on State practice, mainly agreements and decisions
of international courts and tribunals, which was narrow in scope due to the limited number
of cases of succession of States. Draft articles 12 to 14 were informed by the above
considerations, and based on the distinction between situations when the predecessor State
continued to exist and when the predecessor State ceased to exist. The Special Rapporteur
underlined that the expression “may request” used in those draft articles would rebut any
allegation of automatic succession and simply reflected the idea that a successor State is
able to present a claim or request for reparation. Such an approach was in accordance with
the priority generally given to agreements followed by the Commission in this topic.
Further, draft article 14, paragraph 2, recalled that any claims and agreements should take
into consideration a nexus between the consequences of an internationally wrongful act and
the territory or nationals of the successor State, an equitable proportion and other relevant
factors, which could include the principle of unjust enrichment.
85. The report also addressed the possible succession to the right to reparation in cases
where an internationally wrongful act was committed against nationals of the predecessor
State, on the basis of an analysis of more extensive State practice, including agreements and
the practice of international courts and tribunals and of the United Nations Compensation
Commission. It revealed that a claim for reparation by the successor State was not purely
theoretical or rare, nor did it concern only inter-State relations. Instead, there were
important practical consequences for the effective exercise of diplomatic protection by
States in cases of injury suffered before the date of succession by individuals who
subsequently became their nationals. The Special Rapporteur further observed that, in
modern practice and doctrine, a change of nationality resulting from succession of States
was largely accepted as an exception to the traditional rule of continuous nationality. Draft
article 15 was therefore proposed to that effect. The Special Rapporteur noted that this
proposal was consistent with the articles on diplomatic protection in particular. 1447 Draft
article 15, paragraph 1, recognized that the successor State may exercise diplomatic
protection under special circumstances, while paragraph 2 provided that, under the same
conditions, a claim in exercise of diplomatic protection initiated by the predecessor State
may be continued after the date of succession by the successor State. Draft article 15,
1447 General Assembly resolution 62/67 of 6 December 2007, annex. The draft articles adopted by the
Commission and the commentaries thereto are reproduced in Yearbook … 2006, vol. II (Part Two), paras.
49–50.
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paragraph 3, clarified that paragraphs 1 and 2 were without prejudice to the application of
the rules of State responsibility relating to the nationality of claims and the rules of
diplomatic protection.
86. Part Three of the report focused on the scheme of the draft articles presented so far.
The Special Rapporteur considered it useful to organize them into three parts and to include
two draft articles to address the respective scopes of Parts Two and Three, namely draft
articles X and Y. In relation to draft article 2 on “Use of terms”, a new paragraph (f) was
proposed to define the term “States concerned”, which was often referred to in the draft
articles and had a special meaning in the context of succession of States.
87. Regarding the future programme of work, the Special Rapporteur indicated that his
fourth report would focus on forms and invocation of responsibility in the context of
succession of States and also address procedural and miscellaneous issues, including
problems arising in situations where there are several successor States and the issue of
shared responsibility. It was hoped that the topic could be completed on first reading in
2020 or 2021.
2. Summary of the debate
(a) General comments

88. Members of the Commission generally welcomed the third report of the Special
Rapporteur and expressed appreciation for the memorandum prepared by the Secretariat.
89. Regarding the methodology of the report, several members commended the Special
Rapporteur’s survey of relevant State practice, jurisprudence and doctrine, while others
called for a closer analysis of such sources. Caution was expressed against over-reliance on
academic literature and the work of the Institute of International Law. Members agreed
with the Special Rapporteur’s assessment that State practice was diverse, context-specific,
and sensitive. Some members also recalled that the scarcity of State practice had been
highlighted during the debate in the Sixth Committee, and emphasized the need to take into
account more geographically diverse sources of State practice. A number of members also
observed that special agreements or ex gratia payments by States were often a result of
political or other non-legal considerations. Most of these cases did not evidence an opinio
juris regarding a general rule in connection with State succession, but constituted context-
specific arrangements.
90. Members agreed with the Special Rapporteur on the subsidiary nature of the draft
articles and on the priority to be given to agreements between the States concerned. It was
suggested that the important role of agreements should be addressed in greater detail.
Further, according to some members, the relationship between a lump sum agreement
concluded before the date of succession of States and the principle of full reparation should
be discussed. In this regard, the view was expressed that the existence of a lump sum
agreement did not necessarily indicate full reparation, since there were examples of
decisions by national courts allowing claims for reparation despite the existence of a
previous lump sum agreement.
91. Several members emphasized the general rule of non-succession with some
exceptions. While some members supported the flexible approach of the Special
Rapporteur, others underlined the need to clarify whether such an approach would deviate
from the general rule of non-succession. It was suggested that the Commission could
acknowledge the limited State practice in this area at the outset of its commentary or
approach the project as an effort to develop a new convention, which would be subject to
support from States. It was proposed that the Commission expressly indicate that it was
engaging in progressive development of international law when proposing draft articles,
taking best practices into account, including considering that lex ferenda should be based
on solid grounds and not on policy preferences. Moreover, the view was expressed that the
work of the Commission was not adjudicatory in nature and should not seek to resolve
pending disputes between States, and thus the proposed rules should be of general
application.
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92. The importance of maintaining consistency, in terminology and substance, with the
previous work of the Commission was reiterated. It was recalled that different views had
been expressed in the Sixth Committee regarding the extent to which provisions in the 1978
Vienna Convention on Succession of States in Respect of Treaties1448 and the 1983 Vienna
Convention on Succession of States in Respect of State Property, Archives and Debts, 1449
such as those concerning newly independent States, should be replicated. It was also
stressed that the proposed draft articles should be compatible with the articles on
responsibility of States for internationally wrongful acts 1450 and the articles on diplomatic
protection.
93. Several members suggested changing the title of the topic to “State responsibility
problems/aspects in cases of succession of States”, as suggested in the Sixth Committee, or
to “Succession of States in matters of international responsibility”, as used by the Institute
of International Law. An alternative title proposed was “Reparation for injury arising from
internationally wrongful acts in State succession”. Several other members indicated their
preference for retaining the current title of the topic.
(b) Scheme of the draft articles

94. Support was voiced for the Special Rapporteur’s proposal to organize the draft
articles in parts, as well as to include draft articles X and Y indicating the scope of each part.
Another proposal was made to organize the draft articles according to specific categories of
succession of States and to address the possible transfer of rights and obligations together in
the same draft articles. In this regard, members debated whether issues concerning rights
and claims arising from an internationally wrongful act could be treated separately from
issues concerning obligations arising from such act. While several members reiterated
concerns that it might lead to unnecessary duplication of work, the view was expressed that
the right to reparation was an “acquired right” transferable from a predecessor State to a
successor State, while the concept of “acquired obligations” was not recognized in legal
doctrine.
95. Some members also agreed with the Special Rapporteur on the broad distinction
between situations where the predecessor State continued to exist and where it ceased to
exist, although it was questioned whether this distinction should be more nuanced.
Concerning the specific categories of succession of States, some members supported the
formulation of draft article 12 in which three categories of succession of States were
merged, whereas others expressed doubts in this regard. A proposal was made to define
such categories of succession in draft article 2 on “Use of terms”.
(c) Draft article 2 (f)

96. Some members questioned whether it was necessary to define the term “States
concerned”, which might lead to confusion, and suggested that it would be sufficient to
explain it in the commentary instead.
(d) Draft articles 12 to 14

97. While the overall approach to reparation in draft articles 12 to 14 was supported by
some members, a number of other members considered that the expression “may request”
was ambiguous. In this regard, various drafting proposals were made to distinguish the
legal right to reparation from the procedural possibility of claiming reparation. Nonetheless,
some members questioned the usefulness of recognizing procedural possibilities without
identifying substantive rights and obligations. Different views were expressed as to whether
the terms “reparation” or “compensation” should be used in those draft articles and whether
1448 Vienna Convention on Succession of States in Respect of Treaties (Vienna, 23 August 1978), United
Nations, Treaty Series, vol. 1946, No. 33356, p. 3.
1449 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts
(Vienna, 8 April 1983), United Nations, Juridical Yearbook 1983 (Sales No. E.90.V.1), p. 139.
Commission and the commentaries thereto are reproduced in Yearbook … 2001, vol. II (Part Two)
and corrigendum, paras. 76–77.
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the reference to “injury” was appropriate, in the light of the articles on responsibility of
States for internationally wrongful acts.
98. Several members considered that the principle of unjust enrichment could form the
foundation for progressive development of international law in draft articles 12 to 14,
although others questioned whether that would be appropriate or sufficient in the context of
this topic. It was also noted that the concept of unjust enrichment fell outside the rules of
State responsibility.
99. In relation to draft article 12, some members highlighted the need to clarify the
meaning of “special circumstances” in paragraph 2. In this regard, the work of the Institute
of International Law referred to “special circumstances” only in the specific context of a
potential sharing of responsibility by both the predecessor and successor States as an
exceptional solution. It was also suggested that reference be made to agreements between
States in paragraph 2. Further, consistency was required with the phrase “particular
circumstances” as previously proposed in draft articles 7 to 9. The wording of draft article
12, paragraph 2, seemed to be broader than the requirement of a “direct link” between the
internationally wrongful act or its consequences and the territory or nationals of the
successor State in draft articles 7 to 9. In contrast, draft article 14, paragraph 2, required a
“nexus” between the consequences of an internationally wrongful act and the territory or
nationals of the successor State. Moreover, it was noted that the term “nationals” might be
too restrictive and could be replaced with “persons under the jurisdiction of the successor
State”. At the same time, the question was raised whether a State newly independent as a
result of the exercise of the right to self-determination could be considered as a successor
injured State with direct rights. It was suggested that the commentary distinguish between
the right of a successor State to claim reparation and the potential right of individuals to
claim reparation without intervention by the State.
100. Some drafting proposals were also made regarding draft article 13. In this
connection, reference was made to article 13 of the resolution adopted the Institute of
International Law. It was suggested that cases of merger of States and cases of
incorporation of a State into another existing State should be treated in separate draft
articles. While draft article 13, paragraph 2, received support for reflecting the priority of
any agreement between the States concerned, the view was expressed that it could be
deleted.
101. As to draft article 14, it was proposed that paragraph 1 be redrafted to focus on the
dissolution of a State without referring to separation of part of the State. The reference to
agreements in draft article 14, paragraph 2, needed to be explained. It was opined that
agreements between successor States should be considered as a priority over the other
factors in paragraph 2. It was suggested that the term “nexus” in paragraph 2 should be
clarified, and that the phrase “other relevant factors” raised similar questions in relation to
equitable considerations such as unjust enrichment. A number of drafting suggestions
regarding paragraph 3 were also made.
(e) Draft article 15

102. Several members concurred with the Special Rapporteur’s approach of allowing an
exception to the principle of continuous nationality in cases of succession of States to avoid
situations in which an individual lacked protection. In this regard, reference was made to
the preamble of the articles on nationality of natural persons in relation to the succession of
States,1451 stating that due account should be taken both of the legitimate interests of States
and those of individuals. Some other members cautioned that the doctrine and practice in
this area were not uniform. Some doubts were expressed as to whether issues of diplomatic
protection should be addressed in this topic. The need to consider the comments of States in
the Sixth Committee concerning the articles on diplomatic protection was stressed.
103. Some members observed that draft article 15 was consistent with article 5,
paragraph 2, of the articles on diplomatic protection, as well as article 10, paragraph 1, of
1451 General Assembly resolution 55/153 of 12 December 2000, annex. The draft articles and the
commentaries thereto are reproduced in Yearbook … 1999, vol. II (Part Two), paras. 47–48.
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the resolution of the Institute of International Law. Nonetheless, it was underlined that the
draft articles proposed by the Special Rapporteur should not conflict with the articles on
diplomatic protection. Further analysis of their interaction was called for. It was proposed
that draft article 15, or its commentary, should include the safeguards stated in article 5,
paragraphs 3 and 4, of the articles on diplomatic protection, which were intended to avoid
abuses and prevent “nationality shopping” if the rule of continuous nationality was lifted.
104. Clarification was sought regarding the reference to “the corporation” in draft article
15, paragraph 1. In this connection, reference was made to article 10, paragraph 1, of the
articles on diplomatic protection. It was also noted that draft article 15, paragraph 2, did not
follow the approach of distinguishing between whether the predecessor State continued to
exist or not. The view was expressed that draft article 15, paragraphs 1 and 2, should reflect
the conditions for the exercise of diplomatic protection by predecessor and successor States.
In addition, it was suggested that draft article 15, paragraph 3, or the commentary thereto,
should explain that diplomatic protection was not the only recourse for the vindication of
rights by individuals, who could not be deprived of the right to reparation due to territorial
changes in all circumstances. Moreover, it was proposed that draft article 15 address the
case of diplomatic protection on behalf of a person with dual nationality, one of the
predecessor State and one of the successor State, in the light of the articles on diplomatic
protection, which covered cases of multiple nationality. A proposal was made to expressly
state that a successor State shall not use force for diplomatic protection, or at least to restate,
in draft article 2 (use of terms), the definition of diplomatic protection as contained in
article 1 of the articles on diplomatic protection.
(f) Final form

105. A number of members questioned whether draft articles were the most appropriate
outcome for the topic, taking into account the comments by some States that preferred draft
guidelines, principles, conclusions, model clauses, or an analytical report as alternatives. It
was suggested that the Special Rapporteur consider making a recommendation on this issue
in his next report.
(g) Future programme of work

106. Members generally agreed with the future programme of work proposed by the
Special Rapporteur, while some cautioned that the Commission should not be hasty in its
consideration of the topic. The Special Rapporteur was asked to clarify whether he would
discuss specific forms of reparation in his fourth report. Suggestions were also made that
the Special Rapporteur consider addressing the relationship between succession of States
and State responsibility in relation to damage caused by crimes under international law, and
the possible relevance of the topic of general principles of law, including principles of
fairness.
3. Concluding remarks of the Special Rapporteur

107. The Special Rapporteur welcomed the prevailing sense of the debate, which focused
on how to approach the topic in order to achieve a balanced and generally acceptable
outcome.
108. Concerning the need to ensure consistency with the previous work of the
Commission, the Special Rapporteur affirmed his readiness to resolve issues of terminology
and substance in the Drafting Committee. The articles on responsibility of States for
internationally wrongful acts continued to be the basis for the work on the topic, which
aimed to clarify the legal consequences of an internationally wrongful act for a predecessor
State or a successor State after the date of succession of States. In particular, the use of the
terms “injury” and “injured State” in the proposed draft articles were intended to be
consistent with Parts Two and Three of the articles on responsibility of States for
109. The Special Rapporteur agreed with members who expressed the view that the topic
could and should include elements of progressive development of international law. This
could be stated at the outset of the general commentary to the draft articles and, where
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necessary, in relation to specific provisions. Further, the work on the topic could proceed
based on a cautious analysis of State practice, which would be explained in the commentary.
While the Special Rapporteur had tried to include relevant State practice from more diverse
sources, he would welcome further examples from members of the Commission and from
States. He also agreed with some members that the topic could draw on general principles
of law, including those concerning acquired rights, unjust enrichment, fairness and
reasonableness. However, cautious consideration of the role of general principles of law
was required. For example, some principles existing in international investment law might
not apply to other areas of international law. Nevertheless, general principles of law could
still be relevant, along with State practice, case law and agreements, and could evolve into
custom over time or inform the negotiation of agreements between States.
110. While the Special Rapporteur acknowledged that it was difficult to affirm the
existence of a general rule, he did not agree with the view that the inconclusiveness of State
practice would point towards a “clean slate” rule. In particular, the “clean slate” rule in the
1978 Vienna Convention on Succession of States in Respect of Treaties concerned newly
independent States and did not apply to other categories of succession of States, whereas
the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives
and Debts contained only specific rules for different categories of succession of States in
relation to the different areas of State property, archives and debts. Since the previous work
of the Commission confirmed several specific rules rather than a general rule, the “clean
slate” rule should not be elevated as a general rule in this topic, particularly in situations
where the predecessor State continued to exist. Moreover, even if obligations arising from
an internationally wrongful act did not transfer to a newly independent successor State, the
position was different with respect to invocation of rights, especially in circumstances
where the consequences of such act affected the territory or population of the newly
independent State. This also justified the separate treatment of obligations and rights in the
draft articles. In addition, although the Special Rapporteur’s approach to the topic was
based on the rules relating to succession of States and the responsibility of States for
internationally wrongful acts, the doctrine of acquired rights could support such an
approach.
111. Regarding the structure of the draft articles, the Special Rapporteur concurred with
the proposal that different categories of succession of States where the predecessor State
continued to exist could be merged into a single draft article to avoid unnecessary
repetitions, whereas those categories of succession of States where the predecessor State
ceased to exist could be addressed in separate draft articles. The Special Rapporteur
indicated that it would be useful to continue addressing the category of newly independent
States in the draft articles, as illustrated by the pronouncements of the International Court
of Justice in its Advisory Opinion on Legal Consequences of the Separation of the Chagos
Archipelago from Mauritius in 1965.1452
112. The Special Rapporteur welcomed most drafting proposals concerning draft articles
12, 13, 14 and 15. Concerning the expression “may request reparation” in draft articles 12,
13 and 14, he indicated that it was intended to be flexible enough to reflect both lex lata
and lex ferenda without a sharp distinction, since some lex ferenda rules might evolve into
lex lata rules over time. This approach was also in accordance with the subsidiary nature of
the draft articles. Based on the Special Rapporteur’s analysis of agreements between States,
such a flexible formulation presented advantages from the perspective of enabling States to
reach agreement, such as on the restitution of objects or compensation, without any
reference to responsibility for an internationally wrongful act. Further, the Special
Rapporteur agreed to clarify the reference to “special” or “particular” circumstances in the
draft articles, and to consider replacing the term “nationals” with “population” in draft
article 12, paragraph 2. He also acknowledged the need to replace the term “compensation”
in draft article 12, paragraph 3, and draft article 14, paragraph 3, since those provisions did
not address reparation from the responsible State to the injured State but rather some kind
1452 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, 25 February 2019, General List No. 169.
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of settlement, set-off, arrangement or repayment as between the predecessor and successor

States or between two successor States.
113. While the Special Rapporteur was sympathetic to the view that the draft articles
should address the potential right of individuals to claim reparation independent of
intervention by a State, he noted that it might have broader ramifications for this topic, the
scope of which was set out in draft article 1. In that connection, the main focus of draft
article 15 was on diplomatic protection. He indicated that draft article 15 was intended to be
consistent with the articles on diplomatic protection and the work of the Institute of
International Law. Regarding the safeguards provided in draft article 5, paragraphs 3 and 4,
of the articles on diplomatic protection, he considered it sufficient to include a without
prejudice clause referring to other rules of diplomatic protection and to explain the need for
safeguards in the commentary. In this regard, he observed that the risk of nationality
shopping might be less significant in cases of succession of States that involve involuntary
change of nationality.
114. The Special Rapporteur indicated his preference for retaining the current title of the
topic for consistency with the previous work of the Commission. In particular, he did not
find words such as “aspects”, “problems” and “issues” to be suitable for the title of a
Commission’s topic. While other proposals merited consideration, he suggested to return to
the question of the title at a later stage after the provisional adoption of all the draft articles.
115. Regarding the outcome of the topic, the Special Rapporteur agreed with those
members who stated that the Commission should decide on the most suitable option at a
later stage. He reiterated that the preparation of draft articles was a standard method of
work by the Commission, which did not prejudge the final outcome. While he did not wish
to change the form of the draft articles to draft conclusions, guidelines, principles, or to an
analytical report, he was open to the proposal of drafting model clauses or compiling an
annex of clauses based on existing agreements, which would be compatible with a set of
draft articles.
116. In relation to the future programme of work, the Special Rapporteur agreed with
comments that the Commission should have sufficient time and could still aim to complete
its work on first reading by the end of the quinquennium. He indicated that his next report
would focus on the forms of responsibility (in particular, restitution, compensation and
guarantees of non-repetition) and could also address procedural and miscellaneous issues,
including those arising in situations of several successor States.
C. Text of the draft articles on succession of States in respect of State

responsibility adopted so far by the Commission
1. Text of the draft articles

117. The text of the draft articles provisionally adopted so far by the Commission is
reproduced below.
Article 1
Scope
1. The present draft articles apply to the effects of a succession of States in
respect of the responsibility of States for internationally wrongful acts.
2. The present draft articles apply in the absence of any different solution
agreed upon by the States concerned.
Article 2
Use of terms
For the purposes of the present draft articles:
(a) “succession of States” means the replacement of one State by another
in the responsibility for the international relations of territory;
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(b) “predecessor State” means the State which has been replaced by
another State on the occurrence of a succession of States;
(c) “successor State” means the State which has replaced another State on
the occurrence of a succession of States;
(d) “date of the succession of States” means the date upon which the
successor State replaced the predecessor State in the responsibility for the
international relations of the territory to which the succession of States relates;
…
Article 5
Cases of succession of States covered by the present draft articles
The present draft articles apply only to the effects of a succession of States
occurring in conformity with international law and, in particular, the principles of
international law embodied in the Charter of the United Nations.
2. Text of the draft articles and commentaries thereto provisionally adopted by the
Commission at its seventy-first session
118. The text of the draft articles and commentaries thereto provisionally adopted by the
Commission at its seventy-first session is reproduced below.
Article 1
Scope
1. The present draft articles apply to the effects of a succession of States in
respect of the responsibility of States for internationally wrongful acts.
2. The present draft articles apply in the absence of any different solution
agreed upon by the States concerned.
Commentary
(1) This draft article sets forth the scope of the present draft articles in two respects,
which are dealt with successively in paragraphs 1 and 2.
(2) Paragraph 1 identifies the material scope of the present draft articles as limited to
matters of succession of States in respect of responsibility of States. The interaction
between these two sets of rules is captured by the phrase “the effects of a succession of
States in respect of the responsibility of States for internationally wrongful acts”. This is
consistent with the Commission’s approach to the study of impacts of the factual situation
of succession of States in respect of treaties and in respect of State property, archives and
debts as reflected in the 1978 and 1983 Vienna Conventions. 1453
(3) The draft articles deal with rules that belong to two areas of international law, i.e.
the law of State responsibility and the law of succession of States. It aims at clarifying their
mutual relations, in particular if and to what extent cases of succession of States have
effects on the responsibility of States for internationally wrongful acts. The draft articles
refer to those concepts in their usual meaning.
(4) The term “succession of States” is defined in subparagraph (a) of draft article 2.
Draft article 5 further specifies those cases of succession of States to which the present draft
articles are limited.
1453 Vienna Convention on Succession of States in respect of Treaties (Vienna, 23 August 1978) United
Nations, Treaty Series, vol. 1946, No. 33356, p. 3; Vienna Convention on Succession of States in
respect of State Property, Archives and Debts (Vienna, 8 April 1983, not yet in force),
A/CONF.117/14.
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(5) The notion of “responsibility of States” is used in the sense of the Commission’s
2001 articles on responsibility of States for internationally wrongful acts. 1454 According to
the commentary to article 1 of the those articles, the term “international responsibility” in
article 1 “covers the relations which arise under international law from the internationally
wrongful act of a State, whether such relations are limited to the wrongdoing State and one
injured State or whether they extend also to other States or indeed to other subjects of
international law”.1455
(6) Paragraph 1 makes it clear that the present draft articles only apply to the effects of a
succession of States in respect of the responsibility of States for internationally wrongful
acts. Consequently, the scope of the present topic does not extend to any issues of
international liability for injurious consequences arising out of acts not prohibited by
international law.
(7) Paragraph 2 clarifies the subsidiary character of the present draft articles. The
Commission adopted paragraph 2 of draft article 1, providing that “[t]he present draft
articles apply in the absence of any different solution agreed upon by the States concerned”.
In the same vein, the general commentary to the articles on State responsibility underlines
that:
Being general in character, they are also for the most part residual. In principle,
States are free, when establishing or agreeing to be bound by a rule, to specify that
its breach shall entail only particular consequences and thereby to exclude the
ordinary rules of responsibility. This is made clear by article 55. 1456
(8) The draft articles would only apply in cases where the States concerned have not
arrived at a different solution among themselves. The words “any different solution” are
intended to capture the vast array of possible solutions that the parties may adopt in a
situation of succession of States. Such solutions may be expressed in a variety of forms,
which could include, for example, international agreements, unilateral declarations, or a
combination thereof. In this regard, the words “agreed upon” are to be understood in a
broad sense and do not refer only to the consent to be bound by a treaty. The term “States
concerned” may refer to the predecessor State or States, the successor State or States, as
well as any State injured by an internationally wrongful act occurred before the date of
succession.
Article 2
Use of terms
(a) “succession of States” means the replacement of one State by another
in the responsibility for the international relations of territory;
(b) “predecessor State” means the State which has been replaced by
another State on the occurrence of a succession of States;
(c) “successor State” means the State which has replaced another State on
the occurrence of a succession of States;
(d) “date of the succession of States” means the date upon which the
successor State replaced the predecessor State in the responsibility for the
international relations of the territory to which the succession of States relates;
…
Commission and the commentaries thereto are reproduced in Yearbook … 2001, vol. II (Part Two)
and corrigendum, paras. 76–77 (hereinafter, “articles on State responsibility”).
1455 Para. (5) of the commentary to art. 1 of the articles on State responsibility, Yearbook ... 2001, vol. II
(Part Two) and corrigendum, at p. 33.
1456 Para. (5) of the general commentary to the articles on State responsibility, Yearbook … 2001, vol. II
(Part Two) and corrigendum, at p. 32.
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Commentary
(1) The definitions in subparagraphs (a), (b), (c) and (d) are identical to the respective
definitions contained in article 2 of the 1978 and 1983 Vienna Conventions. The
Commission decided to leave the definitions unchanged so as to ensure consistency in the
use of terminology across its work on questions relating to the succession of States.
(2) The term “succession of States” is used “as referring exclusively to the fact of the
replacement of one State by another in the responsibility for the international relations of
territory, leaving aside any connotation of inheritance of rights or obligations on the
occurrence of that event”. 1457 Unlike the previous work of the Commission relating to
succession of States, the present draft articles deal with the effects of such succession on
the rules of State responsibility. Consequently, the term does not imply an automatic
transfer of rights or obligations. Such transfer is only possible under certain circumstances
and according to the rules set forth in the draft articles.
(3) The meaning of the terms “predecessor State”, “successor State” and “date of
succession” merely follow from the meaning given to “succession of States”. It should be
noted that, in some cases of succession of a part of a territory, the predecessor State is not
replaced in its entirety by the successor State, but only in respect of the territory affected by
the succession.
Article 5
Cases of succession of States covered by the present draft articles
The present draft articles apply only to the effects of a succession of States
occurring in conformity with international law and, in particular, the principles of
international law embodied in the Charter of the United Nations.
Commentary
(1) The inclusion of draft article 5 in the present draft articles is in line with a long-
established practice of the Commission on matters of succession of States. In fact, this
provision mutatis mutandis reproduces the text of article 6 of the 1978 Vienna Convention,
article 3 of the 1983 Vienna Convention and article 3 of the articles on nationality of
natural persons in relation to the succession of States. 1458
(2) The provision of draft article 5 is in conformity with the principle of ex injuria jus
non oritur and with the Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of the United
Nations. 1459 Draft article 5 is also in line with an abundant practice of United Nations
bodies.1460 Unlawful territorial situations are not instances of succession of States precisely
due to their underlying illegality. 1461
(3) Draft article 5 does not provide any advantage to a State violating international law.
To the contrary, it does not give any legal effect to unlawful territorial situations. General
rules of international law on State responsibility, including the obligation of non-
recognition, continue to apply to such situations.
1457 Para. (3) of the commentary to draft article 2 of the draft articles on succession of States in respect of
treaties, Yearbook ... 1974, vol. II (Part One), document A/9610/Rev.1, at p. 175.
1458 General Assembly resolution 55/153 of 12 December 2000, annex. The draft articles and the
commentaries thereto are reproduced in Yearbook … 1999, vol. II (Part Two), paras. 47–48. See also
Institute of International Law, Yearbook, vol. 76, Session of Tallinn (2015), “State succession in
matters of international responsibility”, Fourteenth Commission, Rapporteur: Marcelo Kohen, p. 509,
resolution, p. 711.
1459 General Assembly resolution 2625 (XXV) of 24 October 1970, annex.
1460 See, for example, Security Council resolution 662 (1990) of 9 August 1990 concerning annexation of
Kuwait by Iraq; Security Council resolutions 216 (1965) of 12 November 1965 and 217 (1965) of 20
November 1965 concerning Southern Rhodesia; Security Council resolutions 541 (1983) of 18
November 1983 and 550 (1984) of 11 May 1984 concerning Cyprus.
1461 Institute of International Law, Yearbook, vol. 76 (see footnote 1458 above), final report, para. 24
(footnote omitted).
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Chapter VIII
Immunity of State officials from foreign criminal jurisdiction
A. Introduction
119. The Commission, at its fifty-ninth session (2007), decided to include the topic
“Immunity of State officials from foreign criminal jurisdiction” in its programme of work
and appointed Mr. Roman A. Kolodkin as Special Rapporteur.1462 At the same session, the
Commission requested the Secretariat to prepare a background study on the topic, which
was made available to the Commission at its sixtieth session (2008).1463
120. The Special Rapporteur submitted three reports. The Commission received and
considered the preliminary report at its sixtieth session (2008) and the second and third
reports at its sixty-third session (2011). 1464 The Commission was unable to consider the
topic at its sixty-first (2009) and sixty-second (2010) sessions.1465
121. The Commission, at its sixty-fourth session (2012), appointed Ms. Concepción
Escobar Hernández as Special Rapporteur to replace Mr. Kolodkin, who was no longer a
member of the Commission. 1466 The Commission received and considered the preliminary
report of the Special Rapporteur at the same session (2012), her second report during the
sixty-fifth session (2013), her third report during the sixty-sixth session (2014), her fourth
report during the sixty-seventh session (2015), her fifth report, which was considered
during the sixty-eighth (2016) and sixty-ninth sessions (2017), and her sixth report, which
was considered during the seventieth (2018) and the current seventy-first (2019)
sessions.1467 On the basis of the draft articles proposed by the Special Rapporteur in the
second, third, fourth and fifth reports, the Commission has thus far provisionally adopted
seven draft articles (see sect. C, below) and commentaries thereto. Draft article 2 on
definitions is still being developed.1468
1462 At its 2940th meeting, on 20 July 2007 (Official Records of the General Assembly, Sixty-second
Session, Supplement No. 10 (A/62/10), para. 376). The General Assembly, in paragraph 7 of its
resolution 62/66 of 6 December 2007, took note of the decision of the Commission to include the
topic in its programme of work. The topic had been included in the long-term programme of work of
the Commission during its fifty-eighth session (2006), on the basis of the proposal contained in annex
A of the report of the Commission (Official Records of the General Assembly, Sixty-first Session,
Supplement No. 10 (A/61/10), para. 257).
1463 Official Records of the General Assembly, Sixty-second Session, Supplement No. 10 (A/62/10), para.
386. For the memorandum prepared by the Secretariat, see A/CN.4/596 and Corr.1.
1464 A/CN.4/601, A/CN.4/631 and A/CN.4/646, respectively.
1465 See Official Records of the General Assembly, Sixty-fourth Session, Supplement No. 10 (A/64/10),
para. 207; and ibid., Sixty-fifth Session, Supplement No. 10 (A/65/10), para. 343.
1466 Ibid., Sixty-seventh Session, Supplement No. 10 (A/67/10), para. 266.
1467 A/CN.4/654, A/CN.4/661, A/CN.4/673, A/CN.4/686, A/CN.4/701, and A/CN.4/722, respectively.
1468 See Official Records of the General Assembly, Sixty-eighth Session, Supplement No. 10 (A/68/10),
paras. 48–49.
At its 3174th meeting, on 7 June 2013, the Commission received the report of the Drafting Committee
and provisionally adopted draft articles 1, 3 and 4 and, at its 3193rd to 3196th meetings, on 6 and 7
August 2013, it adopted the commentaries thereto (ibid., Sixty-ninth Session, Supplement No. 10
(A/69/10), paras. 48–49).
At its 3231st meeting, on 25 July 2014, the Commission received the report of the Drafting
Committee and provisionally adopted draft articles 2 (e) and 5 and, at its 3240th to 3242nd meetings,
on 6 and 7 August 2014, it adopted the commentaries thereto.
At its 3329th meeting, on 27 July 2016, the Commission provisionally adopted draft articles 2,
subparagraph (f), and 6, provisionally adopted by the Drafting Committee and taken note of by the
Commission at its sixty-seventh session, and at its 3345th and 3346th meetings, on 11 August 2016,
the Commission adopted the commentaries thereto (ibid., Seventy-first Session, Supplement No. 10
(A/71/10), paras. 194–195 and 250).
At its 3378th meeting, on 20 July 2017, the Commission provisionally adopted draft article 7 by a
recorded vote and at the 3387th to 3389th meetings on 3 and 4 August 2017, the commentaries
thereto (ibid., Seventy-first Session, Supplement No. 10 (A/72/10), paras. 74, 76 and 140–141).
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122. The Commission had before it the sixth report (A/CN.4/722), on which debate had
not been completed at the seventieth session, and the seventh report of the Special
Rapporteur (A/CN.4/729). The sixth report had summarized the debates in the Commission
and the Sixth Committee on draft article 7, dealing with crimes under international law in
respect of which immunity ratione materiae should not apply. It then started to address the
procedural aspects of immunity from foreign criminal jurisdiction, focusing in particular on:
(a) timing; (b) the kinds of acts affected by immunity; and (c) the determination of
immunity. The report did not include any proposals for new draft articles. The seventh
report summarized the debates in the Commission at the seventieth session and in the Sixth
Committee at the seventy-third session of the General Assembly and completed the
examination of the procedural aspects of immunity regarding the relationship between
jurisdiction and the procedural aspects of immunity. To that end, two draft articles
concerning the consideration of immunity by the forum State and determination of
immunity were proposed (draft articles 8 and 9). In addition, the seventh report addressed
the remaining procedural aspects identified in the sixth report, including questions
concerning the invocation of immunity and the waiver of immunity and two draft articles
were proposed (draft articles 10 and 11). It also examined aspects concerning procedural
safeguards related to the State of the forum and the State of the official, communication
between the forum State and the State of the official, including the duty to notify to the
official’s State the intent to exercise jurisdiction by the forum State; exchange of
information between the State of the official and the forum State; and cooperation and
international legal assistance between the State of the official and the forum State, in
particular the transfer of criminal proceedings from the forum State to the State of the
official. In this regard, four draft articles were proposed (draft articles 12, 13, 14 and 15).
Further, the report considered the procedural rights of the official, focusing on fair
treatment and one draft article was proposed (draft article 16). The report also addressed the
future work plan, anticipating work on first reading to be completed in 2020, at which also
an eighth report would be submitted. It would consider remaining issues of a general nature,
including: the possible implication on procedural rules of the relationship between the
immunity of State officials from foreign criminal jurisdiction and international criminal
jurisdiction; the possibility of establishing some mechanism for the settlement of disputes;
and the possible inclusion of recommended good practices.
123. The Commission considered the sixth and seventh reports at its 3481st to 3488th
meetings, from 15 to 19, 22 and 23 July 2019.
124. Following its debate on the reports, the Commission, at its 3488th meeting, on 23
July 2019, decided to refer draft articles 8 to 16, as contained in the Special Rapporteur’s
seventh report, to the Drafting Committee, taking into account the debate, as well as
proposals made, in the Commission.
125. At its 3501st meeting, on 6 August 2019, the Chair of the Drafting Committee
presented the interim report of the Drafting Committee on “Immunity of State officials
from foreign criminal jurisdiction”, containing draft article 8 ante provisionally adopted by
the Drafting Committee at the seventy-first session (A/CN.4/L.940), which can be found on
the website of the Commission.1469 The Commission took note of the interim report of the
1469 The report and the corresponding statement of the Chair of the Drafting Committee are available in
the Analytical Guide to the Work of the International Law Commission:
http://legal.un.org/ilc/guide/gfra/shtml. The draft article 8 ante, provisionally adopted by the Drafting
Committee, reads as follows:
“Draft article 8 ante
Applicgation of Part Four
The procedural provisions and safeguards in this Part shall be applicable in relation to any criminal
proceeding against a foreign State official, current or former, that concerns any of the draft articles
contained in Part Two and Part Three of the present draft articles, including to the determination of
whether immunity applies or does not apply under any of the draft articles.”
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Drafting Committee on draft article 8 ante, which was presented to the Commission for
information only.
1. Introduction by the Special Rapporteur of the sixth and seventh reports

126. The Special Rapporteur recalled that the Commission had not concluded its debate
on the sixth report at the seventieth session last year, and it remained open for comments at
the present session. Such comments could be made together with those concerning the
seventh report, as both reports formed part of a comprehensive treatment of procedural
aspects of immunity. In addition, the Special Rapporteur recalled that definitions with
regard to the concepts of “criminal jurisdiction” and “immunity” are still pending for
consideration in the Drafting Committee.1470
127. The Special Rapporteur recalled further that the sixth report 1471 had identified a
number of issues to be addressed relating to procedural aspects, of which only the
procedural implications for immunity arising from the concept of jurisdiction, in particular
the “when”, the “what” and the “who”, were addressed in that report, by examining: (a) the
timing of the consideration of immunity; (b) the acts of the authorities of the forum State
that may be affected by immunity; and (c) the identification of the organ competent to
decide whether immunity applies, without any draft articles being proposed. Accordingly,
the seventh report completed the consideration of these aspects.
128. The Special Rapporteur explained that the seventh report was divided into an
introduction and five chapters. The purpose of the introduction was to describe the current
state of affairs of the topic and, above all, to present a summary of the debates on the Sixth
Report held in 2018 (both in the Commission and the Sixth Committee of the General
Assembly). Chapter I revisited the issue of the concept of jurisdiction and its impact on the
procedural aspects of immunity that was included in the sixth report. It contains two draft
articles (8 and 9) that are based on the review conducted in seventh report. Chapter II is
devoted entirely to considering the invocation and the waiver of immunity and it too
includes two draft articles devoted to the said legal concepts (10 and 11). Chapter III
addresses a set of issues that, in essence, are procedural safeguards operating between the
forum State and the State of the official, namely: the notification to the State of the official
of the forum State’s intention to exercise jurisdiction over a foreign official; the exchange
1470 The proposals by the Special Rapporteur currently in the Drafting Committee read as follow:
“Draft article 3
Definitions
(a) The term ‘criminal jurisdiction’ means all of the forms of jurisdiction, processes,
procedures and acts which, under the law of the State that purports to exercise jurisdiction, are
needed in order for a court to establish and enforce individual criminal responsibility arising from
the commission of an act established as a crime or misdemeanour under the applicable law of that
State. For the purposes of the definition of the term ‘criminal jurisdiction’, the basis of the State’s
competence to exercise jurisdiction is irrelevant;”
(A/CN.4/661, para. 42). In the draft articles provisionally adopted by the Commission, the
definitions article is draft article 2.
“(b) ‘Immunity from foreign criminal jurisdiction’ means the protection from the exercise
of criminal jurisdiction by the judges and courts of another State that is enjoyed by certain State
officials;”
(A/CN.4/661, para. 46).
“(c) ‘Immunity ratione personae’ means the immunity from foreign criminal jurisdiction
that is enjoyed by certain State officials by virtue of their status in their State of nationality, which
directly and automatically assigns them the function of representing the State in its international
relations;”
“(d) ‘Immunity ratione materiae’ means the immunity from foreign criminal jurisdiction
that is enjoyed by State officials on the basis of the acts which they perform in the discharge of
their mandate and which can be described as ‘official acts’”
(A/CN.4/661, para. 53).
1471 See A/CN.4/722.
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of information between both States; the possibility for the forum State to transfer the
proceedings to the State of the official; and – lastly – the conduct of consultations between
both States. The analysis of these issues provides the basis of draft articles 12, 13, 14 and
15. Chapter IV is devoted to the analysis of the procedural rights and safeguards of the
official, and is the basis of draft article 16.
129. The Special Rapporteur underlined that an examination of the procedural aspects
was justified considering particularly that the foreign criminal court in which immunity
would be invoked would apply procedural rules, principles and processes that could hardly
be ignored. Such proceedings necessarily involved a foreign national, whose status as a
State official, and whether his acts were “performed in an official capacity” for immunity
ratione materiae would be matters of determination. Moreover, such consideration had
implications on the principle of sovereign equality in the relations between the forum State
and the State of the official, which implied the need to strike a proper balance between the
right of the forum State to exercise jurisdiction and the right of the State of the official to
see the immunity of its officials respected. Also in balance was the respect for the immunity
of State officials and the necessity of ensuring accountability for the commission of serious
crimes under international law. Additionally, it was useful to ensure that, under all
circumstances, State officials who may be affected by the action of a foreign jurisdiction
were guaranteed procedural rights recognized under international human rights law.
130. Ultimately, the consideration of procedural aspects would not only provide certainty
to both the forum State and the State of the official and help to reduce political
considerations and potential abuse of process for political purposes or motives but also
foster neutrality, thereby building trust between the forum State and the State of the official.
This would mitigate any potential instability in international relations among States. Thus,
the consideration of the procedural aspects would assist to ensure a proper balance in
safeguarding legal principles and values of the international community.
131. In introducing the various draft articles, the Special Rapporteur stressed that the
draft articles contained in her seventh report were designed to apply to the draft articles as a
whole, including draft article 7, thereby responding to the concern of some members of the
Commission that there is a need to ensure a simultaneous treatment of exceptions to
immunity and the formulation of procedural guarantees.
132. The Special Rapporteur noted that draft articles 8 and 9 addressed the procedural
aspects of immunity associated with the concept of criminal jurisdiction. Draft article 81472
referred to the consideration of immunity by the forum State, in particular, the timing at
which it must be taken into account by the authorities of that State. This meant that
immunity would be considered at the earliest possible time as soon as the State authorities
became aware that a foreign official may be affected by the exercise of jurisdiction by the
forum State. In any event, such consideration had to be before the indictment of the official
and the commencement of the trial phase. The draft article was based on the assumption
that immunity may also be assessed at earlier phases if coercive measures or other measures
of constraining authority were taken that directly affected the official or had an impact on
the performance of his functions.
133. Draft article 91473 was based on the recognition that the determination of immunity
was for the courts of the State of the forum. This was without prejudice to the possible
1472 The draft article proposed by the Special Rapporteur reads as follows:
“Draft article 8
Consideration of immunity by the forum State
1. The competent authorities of the forum State shall consider immunity as soon as they are
aware that a foreign official may be affected by a criminal proceeding.
2. Immunity shall be considered at an early stage of the proceeding, before the indictment of the
official and the commencement of the prosecution phase.
3. The immunity shall, in any case, be considered if the competent authorities of the State intend
to take a coercive measure against the foreign official that may affect the performance of his or
her functions.”
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participation of other institutions or authorities of the forum State as determined under its
legal system. Domestic law continued to be particularly relevant for the purposes of
defining the procedure for determining immunity, which should be done in the light of the
rules set out in the draft articles, taking into account also whether the State of the official
had invoked or had waived immunity, as well as any information that the authorities of the
forum State and the State of the official may have provided to the competent courts to rule
on the immunity.
134. Draft articles 10 and 11 addressed matters of invocation and waiver of immunity.
The Special Rapporteur stressed that the invocation and waiver of immunity ought not be
confused with exceptions or limitations to immunity. Invocation involved the assertion of
the right to immunity, while waiver denoted a renunciation. Draft article 10, 1474 according
to the Special Rapporteur, recognized the right of any State to invoke the immunity of its
officials against a State seeking to exercise jurisdiction. It was observed that invocation of
immunity must be made as soon as the State of the official becomes aware that the forum
State intended to exercise jurisdiction. Thus, the draft article contained a set of procedural
rules for invoking immunity in order to guarantee legal certainty.
135. Concerning the form and procedure, the Special Rapporteur stated that invocation
must be made in writing, and identify the official who would benefit from the immunity, as
well as specify the type of immunity (whether ratione personae or ratione materiae). It was
also stressed that, taking into account the diversity of legal systems, the draft article did not
identify the invocation of immunity as being necessarily a judicial act alone. It offered
sufficient flexibility to facilitate that the invocation of immunity through judicial authorities
or the diplomatic channel. Further, it was noted that draft article 10 drew upon the
distinction between immunity ratione personae and immunity ratione materiae. While the
“Draft article 9
Determination of immunity
1. It shall be for the courts of the forum State that are competent to exercise jurisdiction to
determine the immunity of State officials from foreign criminal jurisdiction, without prejudice to
the participation of other organs of the State which, in accordance with national laws, may
cooperate with them.
2. The immunity of the foreign State shall be determined in accordance with the provisions of
the present draft articles and through the procedures established by national law.
3. The competent court shall consider whether the State of the official has invoked or waived
immunity, as well as the information provided to it by other authorities of the forum State and by
the authorities of the State of the official whenever possible.”
“Draft article 10
Invocation of immunity
1. A State may invoke the immunity of any of its officials from foreign criminal jurisdiction
before a State that intends to exercise jurisdiction.
2. Immunity shall be invoked soon as the State of the official is aware that the forum State
intends to exercise criminal jurisdiction over the official.
3. Immunity shall be invoked in writing and clearly, indicating the identity of the official in
respect of whom the immunity is being invoked and the type of immunity being invoked.
4. Immunity shall be invoked preferably through the procedures established in cooperation and
mutual judicial assistance agreements to which both States are parties, or through other
procedures commonly accepted by said States. Immunity may also be invoked through the
diplomatic channel.
5. Where immunity is not invoked directly before the courts of the forum State, the authorities
that have received the communication relating to the invocation of immunity shall use all means
available to them to transmit it to the organs that are competent to determine the application of
immunity, which shall decide thereon as soon as they are aware of the invocation of immunity.
6. In any event, the organs that are competent to determine immunity shall decide proprio motu
on its application in respect of State officials who enjoy immunity ratione personae, whether the
State of the official invokes immunity or not.”
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invocation was unnecessary for the former as it had to be considered proprio motu, it was
considered a procedural requirement for the latter.
136. Draft article 11 1475 considered waiver of immunity as a right of the State of the
official. It must be express, clear and unequivocal, with the mention of the official
concerned and, where applicable, the acts to which the waiver referred. The draft article did
not provide for implicit waiver. Even in the case of a waiver deriving from a treaty, such a
waiver was express if it could be deduced clearly and unequivocally from the terms of the
treaty to which both the forum State and the State of the official are parties.
137. Regarding the form and procedure of waiver, the Special Rapporteur noted that they
were the same as those set out in draft article 10.
138. With respect to the effects of waiver, the Special Rapporteur observed that, to ensure
legal certainty, waiver of immunity was irrevocable. To this end, (a) once immunity was
waived, the waiver applied to any act and any stage of the proceedings (including appeals
and other legal recourse, as well as any arrest warrants or imprisonment) that might occur
as a result of the exercise of criminal jurisdiction by the forum State; and (b) the waiver was
solely and exclusively in relation to the official and the acts to which the waiver related.
139. Draft articles 12, 13, 14 and 15 deal with procedural safeguards applicable between
the forum State and the State of the official, and were proposals de lege ferenda
constituting progressive development of international law. The Special Rapporteur recalled
the need for procedural safeguards was justified to prevent the political or abusive use of
criminal jurisdiction against a foreign official, a matter stressed in both the Commission
and in debates of the Sixth Committee. Such safeguards were aimed at protecting the
interests of both the forum State and the State of the official. Moreover, they ought to be
understood in a broad sense so as to, inter alia, (a) allow for the State of the official to
invoke and waive immunity, which require knowledge of the intention to exercise
jurisdiction by the forum State; (b) enable exchange of information between the authorities
of the forum State and of the State of the official; (c) facilitate the exercise of criminal
jurisdiction over the official by his own State; and (d) permit consultations between the
forum State and the State of the official. The Special Rapporteur highlighted that it was
extremely difficult to find uniformity in State practice and that treaty practice was varied
and had its own peculiarities.
140. The Special Rapporteur stressed that the draft articles sought to assist to build
mutual trust between the forum State and the State of the official; offer legal certainty to
both; and help to eliminate the risk of politicization of the prosecution and of creating
instability in inter-State relations.
141. On draft article 12,1476 the Special Rapporteur underscored that it constituted an
essential guarantee for the respect of the immunity of foreign officials by establishing the
“Draft article 11
Waiver of immunity
1. A State may waive the immunity of its officials from foreign criminal jurisdiction.
2. Waiver shall be express and clear and shall mention the official whose immunity is being
waived and, where applicable, the acts to which the waiver pertains.
3. Waiver shall be effectuated preferably through the procedures set out in cooperation and
mutual judicial assistance agreements to which both States are parties, or through other
procedures commonly accepted by said States. A waiver of immunity may be communicated
through the diplomatic channel.
4. A waiver that can be deduced clearly and unequivocally from an international treaty to which
the forum State and the State of the official are parties shall be deemed an express waiver.
5. Where a waiver of immunity is not effectuated directly before the courts of the forum State,
the authorities that have received the communication relating to the waiver shall use all means
available to them to transmit it to the organs competent to determine the application of immunity.
6. Waiver of immunity is irrevocable.”
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duty to notify any attempt to exercise jurisdiction over them to the State of the official. The
duty to notify was seen as the first guarantee for a State to safeguard its interests by
invoking or waiving the immunity. It was noted that notification should be made as soon as
the competent authorities of the forum State have sufficient information to conclude the
presence of a foreign official who could be subject to its criminal jurisdiction and such
notification should contain all the elements allowing the State of the official to assess its
interests.
142. As to the form and procedure for notification, the Special Rapporteur observed that a
model similar to the invocation and waiver of immunity had been used. Recourse to the
diplomatic channel was subsidiary.
143. The Special Rapporteur noted that draft article 13 1477 was premised on the
recognition that the forum State would need information from the State of the official in
order to decide on immunity, in particular with respect to immunity ratione materiae.
Nevertheless, the Special Rapporteur underlined that the mechanism under the draft article
provided a procedural guarantee that favoured both the forum State and of the State of the
official. Paragraphs 4 and 6 contained provisions regarding refusal by the State of the
official. The form and procedure for the request of information were modelled on the
provisions on invocation, waiver and notification.
144. Draft article 141478 addressed the transfer of the criminal proceedings from the forum
State to the State of the official. This mechanism is conceived in the draft article as a right
“Draft article 12
Notification of the State of the official
1. Where the competent authorities of the forum State have sufficient information to conclude
that a foreign official could be subject to its criminal jurisdiction, the forum State shall notify the
State of the official of that circumstance. For that purpose, States shall consider establishing in
their domestic law appropriate procedures to facilitate such notification.
2. The notification shall include the identity of the official, the acts of the official that may be
subject to the exercise of criminal jurisdiction and the authority that, in accordance with the law
of the forum State, is competent to exercise such jurisdiction.
3. The notification shall be provided through any means of communication accepted by both
States or through means provided for in international cooperation and mutual legal assistance
treaties to which both States are parties. Where no such means exist or are accepted, the
notification shall be provided through the diplomatic channel.”
“Draft article 13
Exchange of information
1. The forum State may request from the State of the official information that it considers
relevant in order to decide on the application of immunity.
2. That information may be requested through the procedures set out in international cooperation
and mutual legal assistance treaties to which both States are parties, or through any other
procedure that they accept by common agreement. Where no applicable procedure exists, the
information may be requested through the diplomatic channel.
3. Where the information is not transmitted directly to the competent judicial organs so that they
can rule on immunity, the authorities of the forum State that receive it shall, in accordance with
domestic law, transmit it directly to the competent courts. For that purpose, States shall consider
establishing in their domestic law appropriate procedures to facilitate such communication.
4. The State of the official may refuse a request for information if it considers that the request
affects its sovereignty, public order (ordre public), security or essential public interests. Before
refusing the request for information, the State of the official shall consider the possibility of
making the transmission of the information subject to conditions.
5. The information received shall, where applicable, be subject to conditions of confidentiality
stipulated by the State of the official, which shall be fulfilled in accordance with the mutual
assistance treaties that provide the basis for the request for and provision of the information or,
failing that, to conditions set by the State of the official when it provides the information.
6. Refusal by the State of the official to provide the requested information cannot be considered
sufficient grounds for declaring that immunity from jurisdiction does not apply.”
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of the forum state and not as an obligation. Therefore, the transfer of proceedings will be
subjected to the national laws of the forum State and, where appropriate, to the conventions
of international judicial assistance which bind both States. The effect of the referral is
materialized in the “suspension” of the exercise of the jurisdiction of the forum State, which
is now subject to the pronouncement of the State of the official on the exercise of its own
jurisdiction. It was worth highlighting that – despite creating a right and not an obligation
for the forum State – it is a useful instrument under certain circumstances to avoid the issue
of immunity, or to solve the problems that may come up between affected states in relation
to the determination of the applicability of immunity. And, in any case, it can operate as a
useful instrument to avoid the problem of politicization or abuse of the exercise of
jurisdiction by the forum State through the channel of allowing the State of the official to
exercise its own jurisdiction.
145. Draft article 15,1479 couched in general terms, regulated a flexible mechanism for
consultations to facilitate the search for solutions when problems of any kind arose in the
process of determining the applicability of immunity in a particular case or, if that was not
possible, to agree on some avenue of dispute settlement existing under international law. It
was stressed that it was a two-way mechanism (consultations) of bilateral nature (forum
State – State of the official).
146. The Special Rapporteur noted that draft article 16 1480 addressed procedural rights and
safeguards applicable to the foreign official. Although immunity was for the benefit of the
State of the official, the exercise of jurisdiction by the forum State had a direct bearing on
the State official. The draft article recognized the right of the State official to benefit from
all fair treatment guarantees, including procedural rights and safeguards related to a fair and
impartial trial. The draft article was modelled on the provision adopted by the Commission
in the draft articles on prevention and punishment of crimes against humanity.
“Draft article 14
Transfer of proceedings to the State of the official
1. The authorities of the forum State may consider declining to exercise its jurisdiction in favour
of the State of the official, transferring to that State criminal proceedings that have been initiated
or that are intended to be initiated against the official.
2. Once a transfer has been requested, the forum State shall suspend the criminal proceedings
until the State of the official has made a decision concerning that request.
3. The proceedings shall be transferred to the State of the official in accordance with the national
laws of the forum State and the international cooperation and mutual judicial assistance
agreements to which the forum State and the State of the official are parties.”
“Draft article 15
Consultations
The forum State and the State of the official may consult, at the request of either, on matters
concerning the determination of the immunity of the foreign official in accordance with the
present draft articles.”
“Draft article 16
Fair and impartial treatment of the official
1. A State official whose immunity from foreign criminal jurisdiction is being examined by the
authorities of the forum State shall benefit from all fair treatment safeguards, including the
procedural rights and safeguards relating to a fair and impartial trial.
2. These safeguards shall be applicable both during the process of determining the application of
immunity from jurisdiction and in any court proceeding initiated against the official in the event
that immunity from jurisdiction does not apply.
3. The fair and impartial treatment safeguards shall in all cases include the obligation to inform
the nearest representative of the State of the official, without delay, of such person’s detention or
any other measure that might affect his or her personal liberty, so that the official can receive the
assistance to which he or she is entitled under international law.
4. The official shall be treated in a fair and impartial manner consistent with applicable
international rules and the laws and regulations of the forum State.”
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147. Regarding the future programme of work on the topic, the Special Rapporteur
recalled that her sixth report referred to the need of tackling, in a future report, the
obligation to cooperate with an international criminal court and its possible impact on the
immunity of foreign criminal jurisdiction of state officials. Besides, in her seventh report
she mentioned that this issue had arisen before the International Criminal Court in relation
to the Appeal request introduced by Jordan relating to the arrest warrant and surrender of
the then President Al-Bashir. Regarding the decision of the International Criminal Court
Appeals Chamber issued on 6 May 2019,1481 she believed it was not necessary or useful for
the current work of the Commission to start a discussion on this judgment. Moreover, it
was worth noting that the decision of the General Assembly on the request of an advisory
opinion from the International Court of Justice in relation to the immunity of Heads of State
and its relationship with the duty to cooperate with the International Criminal Court was
still pending. Therefore, she did not believe it was necessary to submit any specific
proposal to the Commission at this point during the current session. Nonetheless, she keeps
the option of coming back to this question in the next session from a broader perspective,
which must not necessarily be referred exclusively to exceptions of immunity or procedural
aspects (including procedural guarantees) of this topic. On the other hand, the Special
Rapporteur also solicited views of members on (a) the possibility of dealing with the
settlement of disputes; and (b) the desirability and the usefulness of addressing “good
practices,” which could examine such issues as the referral of power to decide on the
application of immunity to the highest courts; the definition of the functions of the
Prosecutor; and the preparation of manuals for the authorities and organs of the State
dealing with issues of immunity.

148. The present summary relates to the debate on the sixth and seventh reports of the
Special Rapporteur at the present session. It should be read together with the summary of
the debate on the sixth report at the seventieth session. 1482

149. Members commended the Special Rapporteur for her extensive work on the seventh
report which, together with the sixth report, provided a rich and detailed review and
analysis of State practice, case law and academic literature relevant to procedural aspects.
Some members pointed to the relevance of the work of the previous Special Rapporteur, as
well as the memorandum by the Secretariat (A/CN.4/596 and Corr.1). While several
members observed that the draft articles proposed in the seventh report should be more
closely based on practice, members also appreciated the deductive methodology employed
by the Special Rapporteur to provide de lege ferenda proposals in the progressive
development of international law. The acknowledgment by the Special Rapporteur
regarding the status of the proposals as constituting progressive development of
international law was welcomed. The importance of taking into account State practice from
more diverse regions was nevertheless underlined by some members. In that connection, a
number of members offered relevant examples including domestic legislation, case law and
bilateral agreements. The convenience to maintain consistency with the work of the
Commission on other related topics such as crimes against humanity and peremptory norms
of general international law (jus cogens), as well as the topic of universal criminal
jurisdiction on the long-term programme of work, was also highlighted.
150. Concerning the approach to the procedural aspects of the topic, members underlined
the importance of balancing essential legal interests, including respect for the sovereign
equality of States, the need to combat impunity for international crimes, as well as the
protection of State officials from the politically motivated or abusive exercise of criminal
jurisdiction. In this regard, concerns expressed in the debates of the Commission and the
1481 Situation in Darfur, Sudan, In the case of the Prosecutor v. Omar Hassan Ahmed Bashir (Decision
under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the
Court for the arrest and surrender or Omar Al-Bashir).
1482 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10), chap.
VII.
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Sixth Committee regarding the overpoliticization or abuse of the exercise of criminal

jurisdiction over State officials were reiterated. In order to achieve a careful balance
between those important interests, several members indicated that the procedural safeguards
proposed in the draft articles should be strengthened.
151. Members also highlighted the crucial link between the procedural aspects of the
topic and the exceptions to immunity in respect of serious crimes under international law
set out in draft article 7, which had been provisionally adopted by the Commission. In this
connection, several members concurred with the Special Rapporteur, as she had explained
in her introduction of the seventh report, that the procedural guarantees and safeguards
proposed in draft articles 8 to 16 were applicable to the draft articles as a whole. Other
members expressed concerns that draft articles 8 to 16, as presently drafted, did not
sufficiently establish a link between the proposed procedural guarantees and safeguards and
the application of draft article 7 nor address fully the procedures and guarantees necessary
to avoid politically motivated prosecutions. The divergent views expressed by members in
respect of the adoption of draft article 7 were reiterated. While the need to avoid reopening
the debate on draft article 7 was stressed by a number of members, it was recalled by
several members that States were evenly divided in their positions on draft article 7, taking
into account the distinction between lex lata and lex ferenda. Therefore, some members
emphasized the paramount importance of designing specific procedural safeguards to
address concerns regarding the application of draft article 7. At the same time, it was
cautioned by several members that the content of draft article 7 should not be undermined.
It was noted in any event that further meaningful discussion of the topic was bound to entail
an elaboration of a draft similar to draft article 7. Some other members doubted that the use
of procedural safeguards could sufficiently cure the substantive flaws inherent in draft
article 7, noting further that the draft article remained an obstacle to agreement within the
Commission on the topic. Nonetheless, it was recognised by several members that certain
proposals made by members in previous debates on the topic merited detailed consideration
and provided a good basis for further discussion.
152. In this connection, some support was expressed for a proposal to clarify that the
general procedural provisions and safeguards under draft articles 8 to 16 were applicable to
the situations covered in draft article 7, and to formulate specific safeguards in relation to
draft article 7. Three conditions for the exercise of jurisdiction by the forum State over a
foreign State official pursuant to draft article 7 were proposed, namely: (a) the decision to
institute criminal proceedings must be taken at the highest level of government or
prosecutorial authority; (b) the evidence that the official committed the alleged offence
must be fully conclusive; and (c) the forum State must have notified the State of the official
of the intention to exercise jurisdiction and must have offered to transfer the proceedings to
the courts of the State of the official or to an international criminal court or tribunal. Further,
a view was expressed that the presence of the concerned State official in the territory of the
forum State was also crucial. It was also considered by some members that there should be
a presumption of immunity until determination of its absence was made. Moreover, some
members viewed as imperative judicial review of any decision on immunity. Additional
proposals were made in relation to the transfer of proceedings to the State of the official
(see paragraphs 173–175 below). On the other hand, some alternative suggestions were
made regarding the notion of “fully conclusive” as an evidentiary standard, including
“reliable and sufficient” or “prima facie”, given that this was a matter that had to be
considered as a preliminary matter before actual trial.
153. Further, some members stressed the need to achieve a balance between the interests
of the forum State and those of the State of the official, in line with the principle of
reciprocity. According to some members, draft articles 8 to 16 seemed to place more weight
on the right to exercise jurisdiction of the forum State over the right to immunity of the
State of the official. In this regard, it was suggested that more discretion should be granted
to the State of the official in asserting immunity, although the possibility of abuse by the
State of the official in blocking the exercise of jurisdiction by the forum State also raised
concerns. Several members considered that draft articles 8 to 15 reflect a correct balance
between the safeguards offered to the forum State and to the State of the official, and that
they are a good basis for the Commission’s work on procedural provisions and safeguards.
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154. Another issue that required clarification was the extent to which the distinction
between immunity ratione personae and immunity ratione materiae was reflected in draft
articles 8 to 16. Some members considered that all the procedural safeguards in draft
articles 8 to 16 would apply to both types of immunity, while other members preferred to
have separate draft articles addressing the different procedural aspects of immunity
reflecting the difference between immunity ratione personae and immunity ratione
materiae.
155. Members generally agreed that draft articles 8 to 16 could be streamlined and
simplified. It was also considered important to cover all key points with sufficient clarity
and detail to ensure that they are effective and operational. Some members viewed it
appropriate for the draft articles to address only those procedural aspects that were directly
related to the immunity of foreign State officials and to leave aside other issues to be
regulated by existing treaties. The view was expressed regarding an apparent over-reliance
in the draft articles on the judiciary in criminal procedure in civil law systems at the
expense of other systems where executive and prosecutorial authorities played a more
prominent role. Various proposals were also made to reorder the draft articles so that the
proposed procedures would be better linked, adopting a new ordering that might start with
draft articles 8, 12, 10, 11 and then draft article 9.
(b) Specific comments
Draft articles 8 and 9 (Consideration and determination of immunity)

156. Since national legal systems were varied and it was the prerogative of States to
adopt internal procedures relating to immunity, it was noted by some members that the
draft articles should aim to provide States with a common procedural framework to adopt in
their domestic law without being overly prescriptive. In this regard, it was suggested that a
simpler provision based on article 32, paragraphs 1 and 2, of the Vienna Convention on
Diplomatic Relations would suffice. References to phrases like “consider immunity”,
“affected by criminal proceedings” were considered vague and unclear. While it was
observed that the consideration of immunity as proposed in draft article 8 could be framed
in general terms taking into account the circumstances of each State, a proposal was made
to provide that States should make efforts to enact or amend national laws governing
procedures concerning determination of immunity in draft article 9. The relevance of
applicable rules of international law in the determination of immunity under draft article 9
was also raised. Another view was that reference to national and international law could
result in confusion.
157. Several members remarked that draft articles 8 and 9 should provide for a more
flexible approach concerning the relevant organs of the forum State in the consideration and
determination of immunity. Some members considered it sufficient to refer to the
competent authorities of the forum State, while others preferred to simply refer to the forum
State. At the same time, some members welcomed the acknowledgment that the courts of
the forum State usually had the primary authority to determine immunity, as reflected in
draft article 9. The concern was expressed that the courts of the forum State should be
independent from, not subordinated to, the executive branch. In this regard, clarification
was sought regarding the obligation by the courts of the forum State to consider
information provided by other authorities.
158. Further, the need to address the role of the prosecutor in the process of consideration
and determination of immunity, as well as the issue of control of prosecutorial discretion,
was underlined. It was suggested that draft article 8 (consideration of immunity) be
redrafted to include the consideration of immunity at the different stages of investigation,
particularly with respect to different forms of detention in respect of immunity ratione
materiae, and trial. Some members expressed the view that some limitations should be
apply to draft article 8 in order to avoid a negative impact on the investigation.
159. A proposal was made to specify in draft article 9 that whatever State organ is
involved, the determination of immunity should be made at a relatively high level. Given
the importance of determining whether any exception to immunity was applicable under
draft article 7, it was suggested that such determination be made by the courts of the forum
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State, including the possibility of appeal to the highest courts. It was also noted that the
determination of immunity by the forum State could be subject to a decision by an
international criminal court or a treaty binding upon the forum State.
160. A number of members supported the requirement in draft article 8 for consideration
of immunity at an early stage of the proceedings, even though there was need for precision
as to the moment when such determination had to be made, such as “without delay”.
Similarly, it would be useful for draft article 9 (Determination of immunity) to indicate at
which stage of the proceedings determination of immunity should take place. Nonetheless,
several members concurred with the principle that questions of immunity are of a
preliminary nature which must be expeditiously decided in limine litis. It was also
mentioned that the consequences of consideration of immunity by the forum State could
include the immediate requirements of determination of immunity and notification of the
State of the official by linking draft article 8 to draft articles 9 and 12.
161. In addition, several members agreed with the condition in draft article 8, paragraph 3,
that immunity shall be considered before the forum State intends to take any coercive
measures against the foreign State official. In this regard, it was suggested that examples be
provided to illustrate acts of the forum State, including coercive measures, that would be
affected by immunity, noting that special attention ought to be given to immunity ratione
materiae. Some members pointed out that consideration of immunity in such cases should
not be limited to situations when the foreign State official was on official duty. Moreover,
if the foreign State official was presumed to be immune from coercive measures prior to the
determination of immunity, that should be clarified in draft article 9.
162. A broader question was raised as to whether draft articles 8 and 9 should be
reformulated to reflect the distinction between immunity ratione personae and immunity
ratione materiae. Depending on the type of immunity involved, the timing of consideration
of immunity by the forum State may vary (see paragraph 172 below).
Draft articles 10 and 11 (Invocation and waiver of immunity)

163. A number of members agreed in substance with draft article 10 (Invocation of
immunity), whereas there were differing opinions regarding a differentiated approach
between immunity ratione personae and immunity ratione materiae. In particular, it
appeared from draft article 10, paragraph 6, that the forum State shall decide proprio motu
in a case concerning immunity ratione personae, whereas the State of the official was
expected to invoke immunity ratione materiae before consideration by the forum State. Not
all members supported such a distinction.
164. A proposal was made to indicate that, in a case where immunity ratione materiae
was not invoked, the forum State should likewise consider or decide proprio motu as soon
as it was aware of the status of the foreign State official or of the acts involved. Another
proposal was that, for the purposes of immunity ratione materiae, the acts of the foreign
State official should be considered separable, with the effect that invocation or waiver of
immunity may be applicable to some acts but not others.
165. It was acknowledged that the right to invoke or waive immunity belonged to the
State of the official, not to the official. However, some members noted that, as a practical
matter, it was often the official who would be first to claim the immunity in practice. In this
regard, it was suggested that States might be advised to stipulate the competent organ to
invoke immunity in their domestic law. The obligations of the forum State should also be
clarified in the event that immunity was claimed by the official but denied by the State,
such as when for example a crime was committed by the official on the orders of the State.
166. Some members considered that the invocation of immunity was not a prerequisite
for its application, as immunity existed as a matter of international law and others pointed
out that there was no obligation to immediately invoke immunity. The view was expressed
that there should be a presumption of immunity unless the State of the official clarified the
lack of immunity or waived immunity. Another view was that the lack of invocation of
immunity could serve an evidentiary purpose to that effect, but it should not preclude the
State of the official from invoking immunity at a later stage. It was stressed that non-
invocation of immunity should not be interpreted as a waiver. Nonetheless, it was
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mentioned that there might be an exceptional possibility where the State of the official is
presumed to have waived the immunity of its official if it fails to invoke immunity within a
reasonable time after having been notified or made aware of the proceedings against the
official. In the view of some members, it was hoped that the consequences of failing to
invoke immunity would be clarified.
167. In relation to draft article 11 (waiver of immunity), several members agreed that
waiver of immunity must be express as a general rule. Some considered that waiver must be
express in all cases. Reference was also made to the view of the former Special Rapporteur,
Mr. Kolodkin, who concluded that waiver of immunity should be express for the troika, but
waiver could be either express or implied for other officials enjoying immunity ratione
personae or immunity ratione materiae. Moreover, the issue of the appearance of a State
before the courts of another State was raised for further consideration, although the view
was also expressed that such appearance should not be interpreted as an express waiver of
immunity. In respect of draft article 11, paragraph 4, it was doubted by several members
that a treaty provision applicable between the forum State and the State of the official could
be interpreted as an implied or express waiver. In this regard, drafting a without prejudice
clause to this effect was mentioned as an alternative. It was also suggested this matter be
treated in a separate provision as this was in effect a treaty exception.
168. As to the form of communication between the forum State and the State of the
official, it was mentioned by some members that the requirement of invocation of immunity
in writing did not necessarily reflect the international practice. Moreover, several members
highlighted the central role of the diplomatic channel in communications between the
forum State and the State of the official. The conduct of diplomacy through third-parties,
such as intermediaries, was also mentioned. Support was generally expressed for a drafting
proposal to emphasize the use of the diplomatic channel in a broader sense, in the context
of invocation and waiver of immunity under draft articles 10 and 11, as well as the
processes of notification, exchange of information and consultations under draft articles 12,
13 and 15 respectively. It was further noted that the States concerned should be free to
decide on the most appropriate channel for communication.
169. It was proposed that invocation of immunity would trigger consultations between
the two States concerned, with the effect of suspending the proceedings for a reasonable
period during such consultations. In addition, it was suggested to clarify that the
participation of the State of the official in the processes of exchange of information and
consultations with the forum State could not be construed as an implied waiver of immunity.
170. Various positions were expressed on the irrevocability of waiver of immunity.
Members generally supported the wording of draft article 11, paragraph 6, expressing the
view that waiver should be presumed to be irrevocable, unless otherwise indicated by the
State of the official. The need for consideration of such a provision was also highlighted,
since revocation might be justified on other grounds such as concerning vital national
interests.
Draft articles 12 to 15 (Procedural safeguards between the forum State and the State of the
official)
171. Several members placed emphasis on the relevance of domestic law and the use of
the diplomatic channel in the application of draft articles 12 to 15. Regarding draft article
12, members generally recognised the crucial relevance of notification into the general
framework of procedural safeguards. Some members questioned whether a legal obligation
upon the forum State to notify the State of the official, particularly in relation to immunity
ratione materiae, could be established. It was observed that certain treaty provisions cited
in the seventh report concerned notification of various States for the purpose of exercise of
criminal jurisdiction by those States, not for the purpose of invocation of immunity, its
determination or its waiver. Questions were also raised as to the practical implementation
of the obligation of notification, such as whether the courts of a State would provide
information to its executive branch, and whether the central authority of a State for mutual
legal assistance would be the relevant authority for communicating notification with respect
to immunity. Other members expressed support for imposing a limited obligation of
notification. In particular, it was suggested by some members that notification of
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information be excluded in circumstances which could create a risk that victims and
potential witnesses might be harmed, evidence might be damaged or tampered with, or the
official might abscond. Further, notification could be subject to conditions of
confidentiality, as recognised in draft article 13, paragraph 5.
172. In respect of draft article 13 (Exchange of information), it was suggested that the
scope of information that may be requested from the State of the official should be limited
to the information necessary for the forum State to decide upon the application of immunity.
Further, some members observed in respect of draft article 13, paragraph 4, that the grounds
for refusal of a request for information were not necessarily limited to situations affecting
sovereignty, public order, security or essential public interests, but might include other
reasons, such as cases involving the political crime exception, violations of human rights,
harassment or discrimination. Alternatively, it was proposed that the State of the official
should have the right to refuse a request for information for any reasons without providing
an explanation.
173. Concerning draft article 14 (Transfer of criminal proceedings), a number of
members agreed with the Special Rapporteur that the transfer of proceedings to the State of
the official was a useful tool in ensuring individual criminal responsibility of State officials
while achieving a balance between respecting the sovereign equality of the State of the
official and the right of the forum State to exercise criminal jurisdiction. The principles of
complementarity and subsidiarity of the jurisdiction of the forum State, in relation to the
primacy of the jurisdiction of the State of the official, were reiterated. In this regard,
reference was made to State practice illustrating the transfer of proceedings from the forum
State to the State of the official, conditioned upon the effective exercise of jurisdiction by
the latter. In addition, how the principle of subsidiarity would operate in the context of the
exercise of jurisdiction based particularly on the passive nationality principle was raised,
and highlighted.
174. Several members suggested that draft article 14 should expressly provide that the
State of the official may request a transfer of proceedings relating to its official from the
forum State. In relation to draft article 14, paragraph 2, it was proposed that a request for
the transfer of proceedings, either by the State of the official or the forum State, should
have the effect of suspending the proceedings until the State concerned decides on such a
request.
175. A number of proposals were also made with the aim of preventing the potential
abuse of the transfer of proceedings. It was suggested that restrictions could be placed
where the State of the official was unwilling or unable genuinely to investigate or prosecute
its official, based on article 17 of the Rome Statute of the International Criminal Court.
Likewise, the State of the official could be required to provide assurances in this regard as a
condition for the transfer of proceedings. Further, in the case of a transfer of proceedings,
the State of the official should be obliged to conduct such proceedings in good faith and in
accordance with the highest recognized international judicial standards. Another proposal,
inspired by article 20 of the Rome Statute, was to permit the official to be retried before the
courts of the forum State if the proceedings transferred to the State of the official were for
the purpose of shielding the official from criminal responsibility or conducted in a manner
which was inconsistent with an intent to bring the official concerned to justice. In this
connection, it was important to bear in mind the overall situation in the State of the official.
The importance of the principle of non-refoulement was also mentioned. The inclusion of a
provision to ensure that a forum State could not arbitrarily deny a request for the transfer of
proceedings was suggested as well.
176. Emphasis was placed on the central role of consultations between the States
concerned, as reflected in draft article 15. Drafting proposals were made to link or merge
draft articles 13 and 15. Draft article 15 was generally supported, even though a suggestion
was made to consider the timing of the consultations further.
Draft article 16 (Procedural rights and safeguards pertaining to the official)

177. While some members questioned whether the inclusion of draft article 16 was
necessary, others found it useful for its emphasis on the procedural rights and safeguards
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pertaining to the foreign State official, particularly in the context of protecting the official
from politically motivated proceedings. Several members agreed with the Special
Rapporteur that procedural rights and safeguards relating to fair treatment before an
impartial tribunal were well-recognized in international law, including international human
rights law, international criminal law and international humanitarian law. At the same time,
it was suggested that it would be helpful to clarify the content of the procedural rights and
safeguards proposed. The need to link such rights and safeguards to the application of draft
article 7 was also mentioned. It was further suggested that draft article 16 might be
extended to provide procedural safeguards for foreign State officials regardless of whether
immunity is being examined in a particular case.
178. Concerning draft article 16, paragraph 3, it was observed that the Vienna
Convention on Consular Relations, which codified customary international law, only
required consular notification upon the request of the detained individual. While it was
noted by one member that a general right to consular assistance was not established under
customary international law, the view was expressed by several members that more
emphasis should be placed on consular assistance, particularly if the forum State intended
to exercise criminal jurisdiction against an individual who has ceased to be a State official
and the situation would be brought to the attention of the State of the official through
consular assistance.
179. A number of drafting proposals were made. For the purpose of consistency, it was
suggested by several members that similar language to draft article 11 of the draft articles
on crimes against humanity be used.
(c) Future programme of work

180. Members generally supported the plan to complete the first reading of the draft
articles in 2020, although sufficient time was needed for substantial consideration of the
draft articles by the Commission. While some members welcomed the consideration of
certain definitions, including “criminal jurisdiction,” proposed for draft article 2
(definitions), others preferred to do so at a later stage. Moreover, it was suggested that the
Commission should address in its future work the issues of the ultra vires acts of State
officials, the questions concerning inviolability in relation to immunity, considerations
concerning recognition, as well as to revisit the question of the tort exception clause and its
implications on criminal jurisdiction.
181. Taking into account the position of the Special Rapporteur in her introduction of the
seventh report, most members agreed that the Commission did not need to enter into a
debate on the judgment dated 6 May 2019 of the Appeals Chamber of the International
Criminal Court in the case involving Jordan, although some members saw a need to address
the relationship between the immunity of State officials from foreign criminal jurisdiction
and the obligation of States to cooperate with international criminal courts or tribunals. It
was noted that the Appeals Chamber judgment was, in any event, not the final word on the
matter since African States were considering proposing that the General Assembly request
an advisory opinion from the International Court of Justice on the consequences of legal
obligations of States under different sources of international law with respect to immunities
of Heads of State and Government and other senior officials. Some members voiced
concerns about the possibility that the Special Rapporteur might consider this issue from a
broad perspective, while other members were in favour of or did not oppose such an
approach. Some members opined that this issue fell outside the scope of the topic, as
reflected in draft article 1. Some other members reserved their position in this regard.
182. Members held differing views in relation to the question of whether the Special
Rapporteur should propose a mechanism for the settlement of disputes between the forum
State and the State of the official in the draft articles. A number of members were open to
such a proposal, whereas some other members did not support it. It was recalled that
consideration of this issue had been requested by African States within the context of
discussions on universal jurisdiction. Some members suggested that a dispute settlement
mechanism could be developed based on similar provisions prepared by the Commission in
other topics, namely, draft article 15 of the draft articles on crimes against humanity, and
draft conclusion 21 of the draft conclusions on peremptory norms of international law (jus
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cogens). Concerns were also raised in relation to the feasibility and suitability of a dispute
settlement mechanism that would operate other than as a treaty provision, and the need to
avoid potentially undermining the draft articles as a whole.
183. As to the possible inclusion of recommended best practices on the topic, several
members noted that it could be useful to States, particularly in reducing the risk of any
abusive or politically motivated exercise of jurisdiction over State officials. At the same
time, a number of members pointed out that this would need to be decided by the
Commission depending on the final form envisaged by the Special Rapporteur.
184. A view was expressed that the Commission should adopt a clear position on the final
outcome of work on the topic, noting in particular that a recommendation to elaborate a
treaty would assist in overcoming some of the differences that relate to procedures and that
some of the proposals made sense in relation to a treaty as an outcome.

185. In her summary of the debate, the Special Rapporteur expressed her satisfaction with
the wide-ranging and substantive discussion of the sixth and seventh reports in 2018 (16
statements) and in 2019 (28 statements). The debate was rich and constructive both in 2018
and at the present session. She noted that the debate confirmed the importance of
consideration of provisions on procedural guarantees and safeguards in the context of the
topic, whose inclusion in the draft articles is an innovative proposal that could significantly
help States. She noted the broad support offered by the members of the Commission with
respect to draft articles 8 to 16. She also acknowledged the comments, suggestions, and
criticisms made, and additional proposals on the substance, some of which could be
addressed in the Drafting Committee. Regarding the suggestion made by the members of
the Commission related with the reordering of the draft articles, she proposed to follow this
sequence: draft articles 8, 12, 10, 11, 13, 9, 14, 15 and 16.
186. The Special Rapporteur reiterated that the draft articles on procedural provisions and
safeguards should be considered as a whole in relation to the application of immunity.
Their purpose was not to provide safeguards solely in respect of a specific case in which the
question of immunity arose (especially in relation to draft article 7), but in respect of all
situations where the application of immunity might arise. Their aim was to provide for
mechanisms that ensured a balance among the various norms, principles and interests at
play and to provide safeguards that ensured a balance between the forum State and the State
of the official. Accordingly, she reaffirmed that the proposed draft articles applied to the
draft articles taken as a whole, including draft article 7.
187. In that regard, she stated that she did not share the opinions expressed by some
members of the Commission to the effect that draft articles 8 to 16 were not applicable to
situations addressed in draft article 7. She said that the provisions concerning consideration
of immunity, notification, invocation and waiver of immunity, exchange of information,
determination of immunity, transfer of proceedings, consultations and the right of the
foreign official to fair treatment applied to situations addressed in draft article 7.
Nonetheless, the Special Rapporteur referred to the concern that some members of the
Commission had expressed about the need to adopt special safeguards for draft article 7 and
the proposals that some members had made in that regard. In that sense, she expressed her
willingness for those specific proposals to be considered by the Drafting Committee when
it examined the draft articles contained in her seventh report.
188. With regard to the terminology employed in draft articles 8 (Consideration of
immunity) and draft article 9 (Determination of immunity), the Special Rapporteur said that
the use of separate terms was deliberate, as each draft article referred to a different issue.
The expression “consideration of immunity” was used to refer to the obligation of the
forum authorities to initiate examination of the question of immunity as soon as they
established that a foreign official was involved. The expression “determination of immunity”
was used to refer to the act of deciding whether or not immunity applied in a specific case.
Thus, while draft article 8 was principally temporal in scope, draft article 9 focused on
which authority was competent to take a decision on whether immunity applied, the
normative elements that the authority concerned must take into account in reaching that
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decision, and whether certain circumstances pertained, such as whether immunity had been
invoked, which could be essential to deciding whether immunity applied or not.
Accordingly, she said that she did not consider it appropriate to use the same term in both
articles, although she was open to considering different terminology in each case, such as
for example “examination of the issue of immunity” (draft article 8) or “ruling on the
applicability of immunity” (draft article 9). In any case, she was opposed to merging draft
articles 8 and 9 into a single draft article.
189. In relation to draft article 8, she said that the majority of members of the
Commission had supported the flexible approach it reflected, under which immunity should
always be examined before the indictment of the official and/or the commencement of oral
proceedings (i.e. in the judicial phase), or even earlier if the authorities of the forum State
intended to take any coercive measure against the foreign official that might affect the
performance of his or her functions. However, she took note of the comments of some
members that the issue of considering immunity in relation to purely executive activities
and in relation to any investigative activity should be examined in more detail, along with
the need to consider the issue of the inviolability of the foreign official. With regard to
those comments, she said that many of the issues raised could be dealt with in the context
of defining the concept of “criminal jurisdiction”, to which end she had already made a
proposal in 2013 that was with the Drafting Committee pending consideration. And she
expressed satisfaction because the preparation of that definition had received wide support
from members of the Commission. Similarly, she expressed her willingness to consider
using the expression “without delay” instead of “at an early stage”. Lastly, the Special
Rapporteur said that she was also open to considering using the alternative expressions
“competent authorities”, “authorities of the forum State” or simply “forum State”.
190. With regard to draft article 9, the Special Rapporteur reiterated, first and foremost,
her conviction that it was for the courts of the forum State to determine immunity, although
she took note of the comments of a certain number of members of the Commission on
variations in national legal regimes and the fact that in some States such determinations
were made by authorities other than the courts, even in some cases the executive authorities.
She was therefore open to the Drafting Committee considering broader wording that would
cover all the possible situations that might arise in national law. However, she emphasized
that the internal judicial effects of a decision on the applicability of immunity would not
permit such a decision to be classed as a mere “political act” or “act of government” that
could be excluded from judicial review. With regard to what law applied in determining
whether immunity was applicable, she reiterated that the decision should necessarily take
into account the law of the forum State, the rules incorporated into the Commission’s draft
articles defining the normative elements of immunity ratione personae and immunity
ratione materiae, and other norms of international law that applied to the case in question.
191. The Special Rapporteur said that draft article 9 was the appropriate framework
within which to consider the proposal on strengthening procedural guarantees in respect of
draft article 7 that had been made by a member of the Commission in his statement to
plenary, as the aim of that proposal was to establish certain additional safeguards for
determining whether immunity applied or not in the event that any of the crimes under
international law listed in that draft article were alleged. In respect of those safeguards, the
Special Rapporteur expressed agreement with the requirement that immunity should be
decided by the competent authorities of the forum State at the highest level. She said that it
would also be desirable for the determination of immunity to be undertaken only if there
was sufficient evidence that the foreign official could have committed the crimes imputed
to him or her, but said that the use of the phrase “the alleged offence is fully conclusive”
was not suitable, particularly because it implied that proceedings would be too far advanced
to be compatible with the requirement that immunity must be considered at an early stage.
Lastly, the Special Rapporteur said that she could also consider the question of the transfer
of proceedings to the State of the official, which could be examined either in relation to
draft article 9 or in the context of draft article 14, which already provided for a transfer
mechanism. In any event, the Special Rapporteur said that, in her view, the supplementary
safeguards should apply to all cases in which it was necessary to determine whether
immunity ratione materiae of a State official applied (including if the applicability of draft
article 7 was at issue), without there being any grounds at all to restrict it to cases involving
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the possible commission of a crime under international law. Lastly, the Special Rapporteur
said that she did not consider it appropriate to include the requirement that the State official
must be on the territory of the forum State, as it did not take account of the wide variation
in State legal systems in that regard.
192. With regard to draft article 11, the Special Rapporteur reiterated her position with
regard to the separate procedures that should apply to invocation in the cases of immunity
ratione personae and immunity ratione materiae, recalling that the same position had also
been adopted by the previous Special Rapporteur, Mr. Kolodkin. However, she said that
she was open to considering wording that would enable the distinction to be made more
flexible for cases in which the authorities of the forum State were directly aware that the
individual over whom they intended to exercise jurisdiction was a foreign official, for
which purpose wording from the Vienna Convention on Consular Relations could be used.
With regard to the time at which immunity should be invoked, she accepted the suggestion
made by various members of the Commission to amend the wording of paragraph 2 of the
draft article so as to take into consideration the different situations in which a State might
find itself at the point of deciding whether to invoke the immunity of one of its officials. In
any case, she reiterated that not invoking immunity could not automatically be understood
as a waiver of immunity.
193. With respect of draft article 11, she reiterated that waiver of immunity was a right of
the State of the official, which could not produce retroactive effects and which must be
express and clear, while indicating her willingness for the Drafting Committee to explore
the most appropriate way to refer to the manner in which a treaty could give rise to a waiver
of immunity. She also stated that it would be useful for the Drafting Committee to examine
the proposal put forward by a member of the Commission to the effect that the State of the
official should waive immunity or offer to itself prosecute if it was alleged that the official
concerned had committed serious crimes under international law.
194. Concerning the procedural elements common to both invocation and waiver of
immunity, the Special Rapporteur drew attention to the broad consensus within the
Commission with respect to the form of both acts and the organ competent to perform them.
In that regard, she reiterated that both invocation and waiver should be formulated in
writing and be precise as to content, and that the organ competent to invoke or waive
immunity should be part of the judicial system of each State. With respect to the channel to
be used to communicate to the forum State both invocation and waiver of immunity, she
pointed out that the reference to mutual legal assistance mechanisms was justified on
grounds of efficiency, without that entailing any prejudice to communication through the
diplomatic channel. In that regard, she said that she was open to considering new wording
that emphasized that invocation and waiver were habitually communicated through the
diplomatic channel. The Special Rapporteur also referred in similar terms to
communication via the diplomatic channel in connection with draft articles 12 and 13.
195. With regard to draft articles 12 to 15, the Special Rapporteur noted that in general
they had received broad support. Regarding draft article 12 (notification), she reiterated its
essential role in the proper functioning of the system of procedural guarantees, although she
stated that the definition of the limits of the obligation of notification should be examined
by the Drafting Committee.
196. With respect to draft article 13, the Special Rapporteur recalled that the exchange of
information constituted an essential element for considering and determining immunity, in
particular immunity ratione materiae. Regarding the refusal of the State of the Official to
transmit the requested information, she reiterated that it would be useful to enumerate the
grounds for such a refusal, or at least establish that the State of the Official “must consider
the request in good faith”. In any event, she insisted that refusing to transmit the requested
information cannot be the reason to declare that immunity does not apply. Moreover, she
affirmed that draft article 13 could be supplemented by an explicit reference stating that the
provision of information may in no case be interpreted as waiver of immunity or of
recognition of the criminal jurisdiction of the forum State. The Special Rapporteur
reiterated her opinion that the exchange of information provided for in draft article 13 can
function in a bidirectional manner.
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197. Regarding draft article 14, the Special Rapporteur emphasized the broad support it
had received, with members of the Commission considering that the transfer of criminal
proceedings to the State of the official was a useful instrument and an important element in
the system of procedural safeguards. With regard to that mechanism, the Special
Rapporteur clarified that the transfer of proceedings could take place both in situations
where immunity did not apply and in those where it did. She also clarified that draft article
14 allowed for the transfer request to be made by either the forum State or the State of the
official, although it would always be for the competent authorities of the forum State to
decide on whether or not to transfer the proceedings to the State of the official. The Special
Rapporteur stated that transfer of proceedings was based on the principles of subsidiarity
and complementarity, since if the State of the official exercised its own jurisdiction to
prosecute the official, it seemed logical that such jurisdiction should have priority over the
jurisdiction of the forum State. However, she expressed the view – put forward by a good
number of Commission members – that transfer of proceedings must not become an
instrument for exempting the official from prosecution, which would constitute fraudulent
use of the institution of “transfer of proceedings”, invalidate its useful effect and might
have the undesired effect of facilitating impunity for the most serious international crimes.
She therefore supported the proposal put forward by various Commission members to the
effect that transfer of proceedings should be subject to the condition that the State of the
official was genuinely able and willing to exercise jurisdiction and actually did so. The
Special Rapporteur did not consider it necessary at the current stage to take a position on
the transfer of criminal proceedings to an international criminal court.
198. With respect to draft article 15, the Special Rapporteur emphasized the broad
support that the institution of consultations had received from Commission members, who
had considered it a wide-ranging instrument that could even be useful in the context of the
settlement of disputes. Accordingly, she said that consultations should receive separate
treatment in the draft articles and that she was opposed to merging draft article 15 with any
other procedural provision.
199. Regarding draft article 16, the Special Rapporteur affirmed its importance and its
essential character, since it ensured that the foreign official would receive fair and impartial
treatment from the forum authorities, both in the process of considering and determining
immunity and also subsequently, if the authorities of the forum State considered that
immunity did not apply. With regard to the content of the draft article and its relationship
with other similar provisions recently adopted by the Commission within the framework of
other topics, the Special Rapporteur indicated that those aspects could be dealt with by the
Drafting Committee, taking into account the specificities of each topic.
200. Concerning future work, the Special Rapporteur reiterated her wish to provide a
brief analysis, in general terms, on the relationship of the present topic with international
criminal jurisdiction, bearing in mind the possibility of transfer the proceeding to an
international tribunal. She confirmed that she will address the question of dispute
settlement mechanisms, as well as best practices focusing on operational rather than
normative aspects. She noted that questions concerning ultra vires acts and other remaining
issues would be addressed in the commentaries.
201. In relation to the final form of the project, the Special Rapporteur noted that it was
premature for the Commission to decide on whether or not a treaty was being elaborated;
the current form of draft articles sufficed.
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Chapter IX
General principles of law
A. Introduction
202. The Commission, at its seventieth session (2018), decided to include the topic
“General principles of law” in its programme of work and appointed Mr. Marcelo Vázquez-
Bermúdez as Special Rapporteur.
203. At the present session, the Commission had before it the first report of the Special
Rapporteur (A/CN.4/732). In his first report, the Special Rapporteur addressed the scope of
the topic and the main issues to be addressed in the course of the work of the Commission.
The report also addressed previous work of the Commission related to general principles of
law and provided an overview of the development of general principles of law over time, as
well as an initial assessment of certain basic aspects of the topic. The Special Rapporteur
proposed three draft conclusions. He also made suggestions for the future programme of
work on the topic.
204. The Commission considered the report at its 3488th to 3494th meetings, from 23 to
30 July 2019.
205. At its 3494th meeting, on 30 July 2019, the Commission decided to refer draft
conclusions 1 to 3, as contained in the Special Rapporteur’s first report, to the Drafting
Committee, taking into account the views expressed in the plenary. 1483
206. At its 3503rd meeting, on 7 August 2019, the Chair of the Drafting Committee
presented an interim oral report of the Drafting Committee on draft conclusion 1,
provisionally adopted by the Drafting Committee. The report was presented for information
only and is available on the website of the Commission.1484
207. At its 3507th meeting, on 9 August 2019, the Commission requested the Secretariat
to prepare a memorandum surveying the case law of inter-State arbitral tribunals and
international criminal courts and tribunals of a universal character, as well as treaties, which
would be particularly relevant for its future work on the topic.
1. Introduction by the Special Rapporteur of the first report

208. The Special Rapporteur introduced his report by making some general observations.
He noted that general principles of law are an important component of the international
legal system and that this source of international law could be usefully clarified by the
Commission almost a century after its inclusion in Article 38 of the Statute of the
Permanent Court of International Justice.
1483 The draft conclusions proposed by the Special Rapporteur in his first report read as follows:
“Draft conclusion 1
Scope
The present draft conclusions concern general principles of law as a source of international
law.
Draft conclusion 2
Requirement of recognition
For a general principle of law to exist, it must be generally recognized by States.
Draft conclusion 3
Categories of general principles of law
General principles of law comprise those:
(a) derived from national legal systems;
(b) formed within the international legal system.”
1484 http://legal.un.org/ilc/guide/gfra/shtml.
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209. The Special Rapporteur stressed that, by adopting a cautious and rigorous approach,
the Commission could provide guidance to States, international organizations, courts and
tribunals, and all those called upon to use general principles of law as a source of
international law.
210. The Special Rapporteur noted that reactions by Member States in the Sixth
Committee to the inclusion of the topic in the programme of work of the Commission were
generally very positive, with only one Member State expressing concern that there was
insufficient State practice to study it appropriately. He mentioned that many delegations
welcomed the Commission’s decision to address the topic, which will complement its work
in relation to other sources of international law. He added that several delegations also
considered that the Commission may provide an authoritative clarification of the nature,
scope and functions of general principles of law, as well as the criteria and methods for
their identification. The Special Rapporteur also noted the considerable interest for the topic
demonstrated by a study group of the International Law Association and through the
various academic publications and events organized on the topic.
211. The Special Rapporteur drew the attention of members of the Commission to the
French and Spanish versions of his first report. The Spanish version of the report contains
the terminology “principios generales del derecho” whilst Article 38, paragraph 1 (c), of the
Statute of the International Court of Justice, refers to “principios generales de derecho”.
The French version of the report refers to “principes généraux du droit”, while the Statute
of the Court refers to “principes généraux de droit”. In his view, these differences were not
substantive and the terminology used in the report could be maintained, since these
expressions (“del derecho” and “du droit”) have been used in international instruments,
such as the Rome Statute of the International Criminal Court, in doctrine and by the
Commission itself in its recent work, including in the topic “Identification of customary
international law”.
212. The Special Rapporteur explained that the first report was preliminary and
introductory in nature, and that its main purpose was to lay the foundation of the
Commission’s work on the topic and to obtain the views of members of the Commission
and States in this regard.
213. The Special Rapporteur indicated that the report was divided into five parts: Part
One deals with general matters; Part Two deals with the Commission’s previous work on
the topic; Part Three with the development of the topic over time; Part Four provides an
initial assessment of certain basic aspects of the topic, namely the elements and origins of
general principles of law; and Part Five sets forth a tentative future programme of work.
The report also proposed three draft conclusions.
214. Part One of the report sets forth the scope of the topic and raised four interrelated
issues to be considered by the Commission: (i) the legal nature of general principles of law
as a source of international law and the meaning of Article 38, paragraph 1 (c), of the
Statute of the International Court of Justice; (ii) the origins of general principles of law; (iii)
the functions of general principles of law and their relationship with other sources of
international law; and (iv) the identification of general principles of law. Certain aspects
related to methodology were also highlighted, namely how to select relevant materials for
the study of the topic in light of the imprecise terminology employed in the literature and in
practice (e.g. “principle”, “general principle”, “general principle of law”, “general principle
of international law”, “fundamental principle of international law”), and a non-exhaustive
list of factors to be considered to determine the relevance of materials. The Special
Rapporteur further considered that, as in the case of the topic “Identification of customary
international law”, the examples of general principles of law that may be referred to in the
work of the Commission must be illustrative only and contained in the commentaries to the
draft conclusions, and that the Commission should not delve into their substance.
215. Part Two of the report addresses the Commission’s previous work related to the
topic. The Special Rapporteur noted that general principles of law have appeared in the
work of the Commission since its early years; that general principles of law seem to have
been codified in the context of some topics, such as the law of treaties and responsibility of
States for internationally wrongful acts; and that certain aspects of the present topic had
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been previously studied or discussed, albeit in general briefly, by the Commission, such as
in the topics on fragmentation of international law, and identification of customary
international law. He stressed that the previous work of the Commission must be taken into
account in an appropriate manner.
216. Part Three of the report, which deals with the development of general principles of
law over time, had two main objectives: (i) to provide context to the topic and (ii) to
provide relevant materials for the study of general principles of law by members of the
Commission. The Special Rapporteur highlighted that section A focused on references to
general principles of law in international instruments while section B addressed general
principles of law in the case law of international courts and tribunals. The Special
Rapporteur stressed that, while section B focused almost exclusively on examples from
judicial settlement of disputes, this did not mean that this is the only context in which
general principles of law applied. As a source of international law, they apply to the
relations between subjects of international law generally. He added that the materials
referred to in this section were not exhaustive and that, taking into account the materials
available, there was sufficient State and international judicial practice for the Commission
to address this topic adequately. The Special Rapporteur also indicated that the first report
briefly mentioned practice related to general principles of law of a regional scope and the
practice of international administrative tribunals, and indicated that he would welcome the
views of members as to whether these should be studied further.
217. Part Four of the report provides first an initial assessment of Article 38, paragraph 1
(c), of the Statute of the International Court of Justice, which refers to “the general
principles of law recognized by civilized nations”. The Special Rapporteur identified three
interrelated elements, namely “general principles of law”, “recognized” and “civilized
nations”. Part Four also addressed the question of the origins of general principles of law.
The Special Rapporteur stressed that the position of the Commission on this latter question
would be decisive as to how the topic would be addressed in the future.
218. The Special Rapporteur raised the question whether “general principles of law” in
the sense of Article 38, paragraph 1 (c), of the Statute of the International Court of Justice
share any characteristics with the “general principles” that exist in national legal systems.
He noted that, while it may be said that they share some common features, such as their
function of filling gaps, their characteristics are probably to be distinguished due to the
structural differences between the international legal system and national legal systems.
Another issue that the Special Rapporteur pointed to for consideration by the Commission
is the possible distinction between the terms “principle” and “rule” or “norm”. The Special
Rapporteur indicated that the doctrine is not unanimous on this matter. He recalled that
both the International Court of Justice and the Commission have expressed that the term
“principle” refers to a more “general” and “fundamental” norm than other norms of
international law. The report preliminarily concludes that, while general principles of law
may have a more “general” and “fundamental” character, it cannot be excluded, having
regard to existing practice, that there may exist general principles of law which do not have
these characteristics. Another issue addressed in Part Four of the report is the relationship
between general principles of law and “general international law”. The Special Rapporteur
indicated that it is clear that the term “general international law” includes general principles
of law, as has been recently reiterated by the Commission in the commentary of the draft
conclusions on the identification of customary international law, which implies that they
are universally applicable. However, a reference to “general international law” is not to be
necessarily understood as a reference to general principles of law. Each case should thus be
examined in its context.
219. Part Four of the report also addressed the meaning of the term “recognized” in
Article 38, paragraph 1 (c), of the Statute of the International Court of Justice. The Special
Rapporteur stated that recognition was the essential condition for the existence of a general
principle of law, in accordance with the text of Article 38, paragraph 1 (c), of the Statute of
the International Court of Justice and the travaux préparatoires of the Statute of the
Permanent Court of International Justice. The Special Rapporteur indicated that the drafters
of the Statute considered that the formal validity of general principles of law would be
based on their recognition by “civilized nations”. This recognition would constitute an
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objective basis that would address the drafters’ concern not to afford to a judge excessive
discretion in the determination of the law. This objective could be achieved with the
recognition of a principle by States in general, a condition that did not depend on the
subjective view of a judge or a particular State. The Special Rapporteur also stressed that
the essential condition of recognition of general principles of law differs clearly from the
essential conditions for the identification of customary international law, namely a general
practice and its acceptance as law (opinio juris).
220. As to the term “civilized nations”, the Special Rapporteur considered that it should
not cause major difficulties for the work of the Commission. He noted that, while this term
may have had a particular meaning in the past, it has become anachronistic and should be
avoided. Taking into account existing practice and the principle of sovereign equality, this
term must be understood as referring to all States of the international community. The
Special Rapporteur indicated that this conclusion did not exhaust all the questions that arise
regarding whose recognition is required, and that he would welcome the views of members
of the Commission on issues that would need to be addressed in a future report, such as the
degree of recognition that a general principle of law must have, whether international
organizations could also contribute to the formation of general principles of law, and the
particular role that international courts and tribunals may play in this matter.
221. Section II of Part Four of the first report deals with the origins of general principles
of law and corresponding categories. The Special Rapporteur reiterated that this
fundamental issue would determine the work of the Commission in the future. In view of
existing practice and literature, the report addresses two categories of general principles of
law: those derived from national legal systems and those formed within the international
legal system. The Special Rapporteur indicated that other categories have been proposed in
doctrine, but that they were somewhat vague, could allow excessive discretion and did not
find sufficient support in practice, at least in a clear manner, and therefore were not
addressed in the first report.
222. The category of general principles of law derived from national legal systems finds
support in the practice prior to the adoption of the Statute of the Permanent Court of
International Justice, in the travaux préparatoires of the Statute, as well as broadly in
current State and international judicial practice. The Special Rapporteur indicated that the
identification of principles falling within this category required a two-step analysis: (i) the
identification of a principle common to the generality of national legal systems or principal
legal systems of the world; and (ii) the determination of whether such principle is
applicable in the international legal system (sometimes referred to as “transposition”).
223. The second category of general principles refers to general principles of law formed
within the international legal system. The Special Rapporteur stressed that nothing in the
travaux préparatoires of the respective Statutes of the Permanent Court of International
Justice and the International Court of Justice, nor their text, suggested that general
principles of law are limited to those derived from national legal systems. He recalled that,
in the Advisory Committee of Jurists, although there was general agreement among its
members that the general principles of law could derive from national legal systems, the
possibility that they may have other origins was not excluded. The existence of this
category could also be explained on the basis that, if the function of general principles of
law is to fill gaps, then it would be logical to have recourse to it, since general principles of
law derived from national legal systems may not be sufficient to perform such function.
State practice and international jurisprudence, as well as the literature, also support the
existence of this category.
224. Finally, with respect to the future work of the Commission, the Special Rapporteur
proposed that the second report address the functions of general principles of law and their
relationship to other sources of international law, and that the third report be dedicated to
the identification of general principles of law. The Special Rapporteur indicated his
flexibility on the order in which these aspects of the topic should be addressed and would
welcome views of members of the Commission thereon.
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225. Members welcomed the first report of the Special Rapporteur and noted with
appreciation that it was well structured and researched. Members noted its “preliminary and
introductory” nature. Some members indicated that their comments were also preliminary
until the Commission had an opportunity to progress in its work. It was agreed that a
number of issues would need to be further addressed and nuanced in the course of future
work on the topic, in particular regarding the scope of the topic, as well as the elements and
origins of general principles of law, and their identification.
226. With respect to the terminology to be used in French and Spanish, some members
expressed the view that it would be important not to depart from the precise terminology
contained in Article 38, paragraph 1 (c), of the Statute of the International Court of Justice
in the title of the topic and in the Commission’s documentation.
227. Some members agreed that this topic was relevant not only because general
principles of law were essential in the judicial context, but also because they were generally
applicable between States. A view was expressed, however, that, while it was important for
the Commission to consider the topic, general principles of law within the meaning of
Article 38, paragraph 1 (c), of the Statute of the International Court of Justice did not play a
very important role in practice.
(i) Scope and outcome of the topic

228. Several members stressed that the scope of the topic refers to general principles of
law as a source of international law. A number of members supported limiting the scope of
the topic to general principles of law in the sense of Article 38, paragraph 1 (c), of the
Statute of the International Court of Justice, but not limited to its application by the Court,
and in the light of the practice of States and of international courts and tribunals. Some
members suggested that the Commission could consider revising the title of the topic to
clarify its scope.
229. It was agreed by a number of members that the Commission should not delve into
the substance of general principles of law, although it could provide illustrative examples.
Some members proposed that an illustrative list of general principles of law be prepared
and provided as an annex, while others stressed that this would be an incomplete exercise
and could become a distraction from the core issues. Several members considered that
illustrative examples of general principles of law could be included in the commentaries
together with all relevant materials.
230. Members generally agreed with the issues set forth for consideration by the
Commission in the Special Rapporteur’s first report, namely: (i) the legal nature of general
principles of law as a source of international law; (ii) the origins of general principles of
law; (iii) the functions of general principles of law and their relationship with other sources
of international law; and (iv) the identification of general principles of law. Some members,
however, expressed doubts as to the proposed order in which these issues would be
addressed.
231. With respect to the legal nature of general principles of law as a source of
international law, members agreed that Article 38, paragraph 1 (c), of the Statute of the
International Court of Justice provided an authoritative statement in this sense, which is
moreover corroborated in the practice of States and international courts and tribunals. One
member questioned the meaning of the term “source” and whether it included formal
sources, material sources, judicial sources, historical sources and literary sources, while
other members found the common understanding of this term sufficiently clear for the
Commission to advance in its work, which is the form by which a legal rule or principle
comes into existence. Several members noted that general principles of law must be
afforded autonomy from the other sources. While it was noted that there was no hierarchy
among the sources of international law, some members stressed that, in practice, general
principles of law played a role of filling gaps. The view was expressed that general
principles of law were a secondary source of international law, which played a “subsidiary”
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role. Some members indicated, however, that the Commission should avoid describing
general principles of law as subsidiary and that the term “supplementary” was a more
appropriate description.
232. With respect to the functions of general principles of law and their relationship with
other sources of international law, members agreed with the Special Rapporteur that this
issue would require careful consideration. Members generally supported the Special
Rapporteur’s conclusion that the travaux préparatoires of Article 38 of the Statute of the
Permanent Court of International Justice suggested that the inclusion of general principles
of law as a source of international law was driven by a concern to avoid findings of non
liquet, and that the purpose of the elements provided in this article was to limit judicial
discretion in the determination of international law. Some members indicated that general
principles of law could have other possible functions, such as to serve as an interpretative
tool, and that they serve as sources of rights and obligations. Some members expressed
doubt as to whether the meaning of non liquet and its prohibition under international law
should be addressed as this fell outside the scope of the topic.
233. Members agreed that the distinction between general principles of law and
customary international law would be important for the topic. In particular, some members
noted that, if the distinction was not clearly explained, there may be a certain confusion
between these two sources of international law. Some suggested that these two sources
could be distinguished, for example, by their process of coming into existence and the
conditions they must fulfil for doing so. The view was expressed that it may sometimes be
difficult to differentiate general principles of law from customary international law. Some
members indicated that it would be important for the Commission to examine not only the
relationship of general principles of law with treaties and customary international law, but
also with equity. Further, it was suggested that general principles of law and principles
regulating the various branches of international law should also be examined.
234. Members generally agreed that draft conclusions would be an appropriate form with
respect to the outcome of the topic. The view was expressed, however, that draft guidelines
or draft articles would be a more appropriate outcome. A view was also expressed that the
Commission should remain open and make such determination at a later stage of its work.
(ii) Methodology
235. Members generally agreed with the methodology proposed by the Special
Rapporteur and reiterated the importance of a cautious approach. Some members indicated
that, while the practice of States and the jurisprudence of international courts and tribunals
were a good starting point, as proposed by the Special Rapporteur, jurisprudence of
national courts, the output of international organizations and the literature would also be
relevant. A view was expressed that focus should also be placed on regional entities, such
as the Inter-American Juridical Committee and Inter-American Court of Human Rights.
The suggestion was made that it would be relevant to examine soft law instruments.
236. According to a view, the Commission should avoid settling theoretical debates and
should aim at providing practical solutions. It was also noted that the Commission should
be transparent if State practice was insufficient and that it would be challenging to canvas
global information relating to this topic to analyse all major legal systems. Members also
agreed with the Special Rapporteur regarding the imprecision of the language used in
previous work and literature. Some members suggested that a measure of flexibility may be
needed by the Commission to accommodate the specificities of the many areas of
international law upon which this topic would touch.
(b) Previous work of the Commission and development of general principles of law over
time
237. Members welcomed the analysis of the historical background provided by the
Special Rapporteur. In particular, it was stressed that general principles of law were
historically largely derived from national legal systems and Roman law and applicable only
when a specific matter was not regulated by other sources of law. Several members noted
that the travaux préparatoires of the Statute of the Permanent Court of International Justice
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should be seen in that context, since at the time of its adoption, international law did not
regulate the issues involved in many areas, and general principles of law were intended to
provide the judge with an alternative to a finding of non liquet. It was noted that that the
link between general principles of law and the European ius commune could have been
assessed in the report and that these historical antecedents may assist the Commission in
getting a sense of what was meant by general principles of law.
238. Some members noted that caution was required when characterizing the
Commission’s previous work. In addition, some members questioned the usefulness of
reviewing references to general principles of law in specific treaty regimes, while several
members supported it. Some members questioned why the Declaration on Principles of
International Law concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations had not been mentioned in the report.
(c) Elements of general principles of law

239. Members generally agreed with the Special Rapporteur’s approach of looking
separately at the three elements of Article 38, paragraph 1 (c), of the Statute of the
International Court of Justice. Several members highlighted the distinction between
“general principles of law” and “general principles of international law” and stressed that
their relationship would need to be addressed. Further, a number of members noted that the
term “general” and “principles” would need thorough analysis. In this connection, the
suggestion of the Special Rapporteur to closely examine the distinction between a
“principle” and “norm” or “rule” was supported by several members. Some members
supported the Special Rapporteur’s explanation regarding the “general” and “fundamental”
nature of a principle, although the specific meaning of these terms was questioned. Other
members indicated that not all general principles of law necessarily have those
characteristics, as mentioned in the report and shown by existing practice.
240. The possibility of addressing “regional” or “bilateral” general principles of law was
welcomed by some members, while others expressed doubts as to whether it would be
appropriate, and some suggested that it was premature for the Commission to examine this
issue at this early stage of its work. In particular, it was stressed that they did not fall within
the scope of the topic and it was stated that the term “general” in Article 38, paragraph 1 (c),
of the Statute of the International Court of Justice entailed the applicability of general
principles of law to “all States”, excluding “regional” or “bilateral” general principles of
law. Some members suggested that the Commission revert to this issue as its work
progresses, in light of further research. Finally, several members were of the view that the
term “law” would also merit closer examination, for example to determine whether it
encompasses both national and international law.
241. Members generally agreed that the element of “recognition” was essential to the
identification of general principles of law and supported the suggestion by the Special
Rapporteur to study further this specific requirement in a future report. Members
highlighted the delineation between recognition, as a requirement for general principles of
law, and acceptance as law, as an element of customary international law. Some members
further made clear that they did not view the requirement of “recognition” as similar to the
element of “acceptance as law” relevant in the context of customary international law.
242. Further, members generally supported the two-step analysis proposed by the Special
Rapporteur regarding recognition with respect to general principles of law derived from
national legal systems – (i) the identification of a principle common to a sufficiently large
number of national legal systems and (ii) the determination of whether such principle is
applicable in the international legal system. Several members agreed that this two-step
analysis and each of its elements would have to be examined closely. A number of issues
were raised with respect to this matter, such as whether the same recognition would apply
to the two categories of general principles of law proposed by the Special Rapporteur; the
level or degree of recognition needed, and in particular the meaning of a “sufficiently large
majority”; whose recognition is required; the role of States in the transposition stage; the
role, if any, of international organizations; and whether the term “transposability” was more
accurate than “transposition”.
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243. Members generally agreed that the term “civilized nations” was inappropriate and
outdated and should not be used in the context of the present draft conclusions. Some
members supported the Special Rapporteur’s proposal to refer instead to “States”, while
others cautioned that this term may not encompass all actors involved in the formation of
general principles of law, including international organizations. Some members expressed
the view that the term “nations” should be further considered. It was also suggested to use
the term “community of nations”, contained in article 15, paragraph 2, of the International
Covenant on Civil and Political Rights: “general principles of law recognized by the
community of nations”.
(d) The origins of general principles of law as a source of international law

244. Several members agreed with the two categories proposed by the Special Rapporteur
based on their origins, namely general principles of law derived from national legal systems
and general principles of law formed within the international legal system, considering that
there was sufficient practice supporting both of them. Some members expressed the view
that the difference between general principles of law of a procedural nature and those of
substantive nature was important when categorizing general principles of law and should be
further considered. While it was indicated that other categories should not be excluded,
some members cautioned against the proliferation of categories.
245. Several members suggested, however, that the category of general principles formed
within the international legal system should not be considered since there was insufficient
State practice to support it. A number of members considered that this category was
debatable and that a cautious approach should be taken when considering it, and in
establishing its limits. It was noted that an additional challenge would be to delineate the
limits of this category, which may lead to excessive and subjective judicial discretion, and
could undermine the requirements for the formation of customary international law. It was
considered that this category should not be rejected or overly restricted; the main concern
would be that the precondition for its formation be sufficiently stringent. Finally, some
members expressed the view that a hard distinction should not be drawn between national
legal systems and the international legal system when determining the origins of general
principles of law, as the latter could be derived indistinctly from either system.
(e) Comments on the draft conclusions proposed in the first report

246. A number of drafting proposals were made concerning draft conclusions 1, 2 and 3.
Several members suggested that draft conclusions 2 and 3 be held in the Drafting
Committee until the Commission has had the opportunity to consider further relevant issues
that may have an impact on their formulation.
(f) Future programme of work

247. Members generally supported the proposal by the Special Rapporteur to address the
functions of general principles of law and their relationship with other sources of law in his
second report and the issue of identification of general principles of law in his third report.
Some members suggested that the Special Rapporteur may wish to reverse the proposed
order and begin with the issue of identification of general principles of international law,
and in particular with the threshold for recognition and the criteria for the transposability or
transposition of principles common to national legal systems to the international legal
system. Some members suggested that the Special Rapporteur propose a definition for
general principles of law. It was also suggested that the Special Rapporteur address first the
more generally accepted category of general principles of law, namely those derived from
national legal systems, before addressing general principles of law formed within the
international legal system, and treat both function and recognition together.

248. The Special Rapporteur welcomed the interest that the topic received among the
members of the Commission and noted that the debate had shown that, despite the different
points of view on certain complex aspects, there were fundamental points on which there
was general consensus. For instance, there was consensus on the issues to be considered by
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the Commission, namely: (1) the legal nature of general principles of law as a source of
international law; (2) the origins and corresponding categories of general principles of law;
(3) the functions of general principles of law and their relationship to other sources of
international law (in particular customary international law); and (4) the identification of
general principles of law.
249. Further, the Special Rapporteur noted the general consensus on the final outcome of
the Commission’s work, which should take the form of conclusions accompanied by
commentaries, since the purpose of the topic was to clarify various aspects of one of the
main sources of international law and such outcome was consistent with the previous work
of the Commission.
250. The Special Rapporteur also noted that, although the current title of the topic had not
been the subject of any observations by States in the Sixth Committee, members of the
Commission had made proposals to modify it. He noted that, in his view, such proposals
were not needed and would not accurately reflect the scope of the topic.
251. The Special Rapporteur further noted the general consensus on the scope of the topic
and stressed that it would not be necessary for the Commission to have a theoretical debate
about the meaning of the term “sources”. He added that the Commission has been working
on the sources of international law since its creation and that the common understanding of
its work is on “formal sources”, which refers to the legal process and the form by which a
rule or principle comes into existence. The text of Article 38, paragraph 1 (c), of the Statute
of the International Court of Justice was clear in that general principles of law constitute a
source of international law, distinct from treaties and customary international law, which
has been confirmed in the practice of States and of international courts and tribunals. He
emphasized that the commentary would clarify that general principles of law were being
considered in the context of Article 38, paragraph 1 (c), and that it would therefore not be
necessary, at this stage at least, to draft a definition of general principles of law as was
suggested by some members.
252. The Special Rapporteur observed that there was general consensus that the starting
point for consideration was Article 38, paragraph 1 (c), of the Statute of the International
Court of Justice, analysed in the light of the practice of States and the jurisprudence of
international courts and tribunals. The Special Rapporteur stated that the concerns raised by
some members related to the scarcity of State practice with respect to certain specific
aspects of the topic should not impede the progress of this topic. He noted that the written
and oral pleadings made by States before international courts and tribunals would be
relevant to the extent that a common approach could be identified. Further, the fact that the
Commission was considering the topic might encourage States in the Sixth Committee to
pronounce themselves on such issues. For the Special Rapporteur, an in-depth analysis of
general practice could give indications of how States understand, even implicitly, the more
specific aspects of the topic, and that, in any case, the Commission should continue its work
with a careful and transparent approach. In this context, the Special Rapporteur highlighted
that the inter-American system as well as all relevant practice in other regions should be
considered.
253. The Special Rapporteur observed that some members favoured the inclusion of
general principles of regional or bilateral scope, while others expressed doubts as to its
existence or relevance for the purposes of the present topic. He stressed that such general
principles of law should not be discarded at this early stage. The Special Rapporteur also
addressed the concerns about the relevance of international instruments, other than the
Statute of the International Court of Justice, which seem to refer to general principles of
law, such as the Rome Statute of the International Criminal Court. In his view, such
instruments should be examined to determine whether or not they are relevant, since there
may otherwise be a risk of gaps in the study of the topic. On the practice of international
organizations, the Special Rapporteur indicated that its relevance should be further
examined.
254. The Special Rapporteur considered that preparing an illustrative list of general
principles of law would be impractical, necessarily incomplete and would divert attention
away from the central aspects of the topic. The Special Rapporteur noted that specific
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examples of general principles of law should be made in the commentaries without taking a
position on their substance. Further, the Special Rapporteur expressed his willingness to
submit a preliminary bibliography to be annexed in one of his future reports. In addition,
the Special Rapporteur noted that the possible role of international courts and tribunals in
the formation or identification of general principles of law should be analysed with the
understanding that these decisions are a subsidiary means for the determination of rules of
law, as provided in Article 38, paragraph 1 (d), of the Statute of the International Court of
Justice.
255. The Special Rapporteur noted that the majority of members supported, at least on a
preliminary basis, that general principles of law were supplementary in nature, and that
their main function was to fill gaps or lacunae in international law or to avoid non liquet.
He also referred to the position of other members who consider that, in view of the absence
of hierarchy between the sources of international law, priority to treaties and customary
international law may be given rather on the basis of the principles of lex specialis and lex
posterior.
256. The Special Rapporteur also noted that there was consensus on the need to consider
the relationship between general principles of law and other sources of international law, in
particular customary international law. He emphasized the need to carefully and clearly
differentiate general principles of law from the other sources, and indicated that future
reports would address this issue in a rigorous manner. He stressed that, with regard to the
concept of “general international law”, members of the Commission broadly agreed that
general principles of law form part of general international law.
257. In addition, the Special Rapporteur observed that for some members there was, or
should be, a distinction between “principles” and “norms” or “rules”, and that the majority
of members focused on the question of whether the wording “general principles of law”
indicates anything about the characteristics, functions, origins or other aspects of this
source of international law. He also noted that some members raised questions on whether
such principles could be considered as more “general” and “fundamental” than other norms.
He also indicated that, for some members, the term “law” may or may not be interpreted as
referring to national law and international law. In this context, the Special Rapporteur
stressed that, at this stage, it could not be excluded that the term “general principles of law”
was simply a term of art used to designate this source of international law, and that, for that
reason, there may be no need to provide the specific meaning of each word. He added that
this would be clarified, in any event, after studying the identification of general principles
of law.
258. The Special Rapporteur stated that the Commission was unanimous in considering
that recognition is the essential condition for the existence of general principles of law and
that this would be a central aspect of this topic. The degree of recognition required, as well
as the specific forms that recognition may take for each of the categories of general
principles of law, were issues that needed further consideration. The Special Rapporteur
stressed the importance of continuing with a cautious approach and that the criteria for
determining the existence of general principles of law must be balanced between flexibility
– so their identification would not be an impossible task – and strictness – to avoid the risk
of being used as a shortcut to identify rules of international law, which could undermine
other sources.
259. The Special Rapporteur observed that there was also consensus that the term
“civilized nations” was anachronistic, and should be avoided, considering the principle of
sovereign equality of States. The main question remained as to the appropriate alternative
term to be used. He agreed with the suggestion made in the debate that possibly the best
formulation could be the term “community of nations”, contained in article 15, paragraph 2,
of the International Covenant on Civil and Political Rights.
260. The Special Rapporteur stressed that besides the two categories proposed in the first
report, which are supported by practice and doctrine, the Commission should avoid an
unnecessary proliferation of categories of general principles of law. He also stated that the
possible distinction between substantive general principles and procedural general
principles did not necessarily fall within the scope of the present topic, and that those two
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types of general principles of law, as was suggested in the debate, could have their origin
both in national legal systems and in the international legal system.
261. The Special Rapporteur highlighted that members of the Commission unanimously
accepted the category of general principles of law derived from national legal systems and
that members agreed that the identification of this category should follow a two-step
analysis. First, the identification of a principle at the national level and, second, its
transposability or transposition to the international level. Such analysis, including how
recognition is expressed, the degree of recognition required and the method for identifying
this category and would be set forth in a future report. The Special Rapporteur observed
that there was less consensus among members on the second category of general principles
of law, namely those formed within the international legal system. Several members
supported this category of general principles of law, considering that it is based in sufficient
practice, while its existence was questioned by some other members. The Special
Rapporteur indicated that the latter considered that practice was not sufficient to
demonstrate the existence of this category of general principles of law and that the forms of
recognition of this second category may be too flexible. The Special Rapporteur noted that
these members were nonetheless not entirely excluding the possible existence of this
second category, suggesting that the issue should be examined further.
262. The Special Rapporteur indicated that he would take into account the suggestions
formulated by members of the Commission to further address the requirement of
recognition and the identification of general principles of law in his next report. In addition,
the Special Rapporteur underlined that a study from the Secretariat on certain aspects of the
present topic would contribute to the Commission’s work, as would a questionnaire to be
circulated to States requesting information about their practice on general principles of law,
in the sense of Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice.
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Chapter X
Sea-level rise in relation to international law
A. Introduction
263. At its seventieth session (2018), the Commission decided to include the topic “Sea-
level rise in relation to international law” in its long-term programme of work. 1485
264. In its resolution 73/265 of 22 December 2018, the General Assembly subsequently
noted the inclusion of the topic in the long-term programme of work of the Commission,
and in that regard called upon the Commission to take into consideration the comments,
concerns and observations expressed by Governments during the debate in the Sixth
Committee.
265. At its 3467th meeting, on 21 May 2019, the Commission decided to include the
topic in its programme of work. The Commission also decided to establish an open-ended
Study Group on the topic, to be co-chaired, on a rotating basis, by Mr. Bogdan Aurescu, Mr.
Yacouba Cissé, Ms. Patrícia Galvão Teles, Ms. Nilüfer Oral and Mr. Juan José Ruda
Santolaria.
266. At its 3480th meeting, on 15 July 2019, the Commission took note of the joint oral
report of the Co-Chairs of the Study Group.
267. The Study Group, co-chaired by Ms. Patrícia Galvão Teles and Ms. Nilüfer Oral,
held a meeting on 6 June 2019. The Study Group considered an informal paper on the
organization of its work containing a road map for 2019 to 2021. The discussion of the
Study Group focused on its composition, its proposed calendar and programme of work,
and its methods of work.
268. Concerning the composition, consensus was reached on establishing a membership-
based Study Group which will be open to all members of the Commission. As members
will be asked to join via a participation list each year, the membership of the Study Group
could change from year to year.
269. With regard to the programme of work, over the next two years, the Study Group is
expected to work on the three subtopics identified in the syllabus prepared in 2018, 1486
namely: issues related to the law of the sea, in 2020, under the co-chairpersonship of Mr.
Bogdan Aurescu and Ms. Nilüfer Oral; and issues related to statehood, and issues related to
the protection of persons affected by sea-level rise, in 2021, under the co-chairpersonship
of Ms. Patrícia Galvão Teles and Mr. Juan José Ruda Santolaria. Support was expressed by
members of the Study Group for this approach. It was also noted that the proposed
programme of work of the Study Group might require adjustment in the light of the
complexity of the issues to be considered.
270. As to the methods of work, it was anticipated that approximately five meetings of
the Study Group will take place each session. It was agreed that, prior to each session, the
Co-Chairs will prepare an issues paper. The issues paper will be edited, translated and
circulated as an official document to serve as the basis for the discussion and for the annual
contribution of the members of the Study Group. It will also serve as the basis for
subsequent reports of the Study Group on each subtopic. Members of the Study Group will
then be invited to put forward contribution papers that could comment upon, or
complement, the issues paper prepared by the Co-Chairs (by addressing, for example,
regional practice, case law or any other aspects of the subtopic). Recommendations will be
made at a later stage regarding the format of the outcome of the work of the Study Group.
369.
1486 Ibid., annex B.
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271. At the end of each session of the Commission, the work of the Study Group will be
reflected in a substantive report, taking due account of the issues paper prepared by the Co-
Chairs and the related contribution papers by the members, while summarizing the
discussion of the Study Group. That report will be agreed upon in the Study Group and
subsequently presented by the Co-Chairs to the Commission, so that a summary can be
included in the annual report of the Commission.
272. The Study Group also recommended that the Commission invite the comments of
States on specific issues that are identified in chapter III of the report of the Commission.
The possibility of requesting a study from the Secretariat of the United Nations was
discussed in the Study Group as well. The knowledge of technical experts and scientists
will continue to be considered, possibly through side events organized during the next
sessions of the Commission.
273. Finally, with the assistance of the Secretariat, the Study Group will update the
Commission on new literature on the topic and related meetings or events that might be
organized in the next two years.
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Chapter XI
Other decisions and conclusions of the Commission
A. Provisional application of treaties
274. At its 3495th meeting of the Commission, on 31 July 2019, the Special Rapporteur
on the topic “Provisional application of treaties”, Mr. Juan Manuel Gómez Robledo,
presented an oral report on the informal consultations held on 10 and 18 July 2019 to
consider the draft model clauses on provisional application of treaties.
275. The Special Rapporteur recalled that at the time of the adoption on first reading of
the draft Guide to Provisional Application of Treaties, at the seventieth session, in 2018, the
Commission also took note of the recommendation of the Drafting Committee that a
reference be made in the commentaries to the possibility of including, during the second
reading, a set of draft model clauses, based on a revised proposal that the Special
Rapporteur would make at an appropriate time, taking into account the comments and
suggestions made during both the plenary debate and in the Drafting Committee. 1487 Such
reference was subsequently included in paragraph (7) of the general commentary, 1488 in
which it was explained that, in preparing a set of draft model clauses, to be annexed to the
Guide, the Commission would seek to reflect the best practice with regard to the
provisional application of both bilateral and multilateral treaties. It was also clarified that in
no way would they be intended to limit the flexible and voluntary nature of provisional
application of treaties. Nor would they attempt to address the whole range of situations that
may arise.
276. The Special Rapporteur further recalled that the Commission, in its report on the
seventieth session, had indicated its intention to resume the consideration of the draft model
clauses at the present session, in order “to allow States and international organizations to
assess the annex containing such draft model clauses before the second reading of the draft
guidelines takes place during the seventy-second session”.1489
277. The Special Rapporteur drew the Commission’s attention to the fact that 41
delegations, including the European Union which spoke on behalf of its 28 member States
and other States, had expressed views in the debate on the topic in the Sixth Committee,
during the seventy-third session of the General Assembly, in 2018. During that debate,
many delegations had acknowledged with appreciation the proposal of the Special
Rapporteur of including draft model clauses as an annex to the Guide, with several
delegations observing that the inclusion of draft model clauses would provide practical
assistance and guidance to States when drafting provisions of treaties. At the same time,
some delegations had regretted that the Commission had not been able to complete its
consideration of the draft model clauses during the first reading and expressed their hope
that they could be in a position to consider the draft model clauses before the second
reading commenced.
278. It was with the 2018 decision of the Commission and the views of Governments in
mind that the Special Rapporteur circulated an informal paper containing a revised set of
draft model clauses, which then served as a basis for discussion in the informal
consultations held at the present session. He pointed to the following understandings that
underpinned his revised proposal for the draft model clauses, namely that:
(a) the draft model clauses should be aimed at addressing the most common
issues faced by States and international organizations who are willing to resort to
provisional application;
(b) the draft model clauses should not pretend to address the whole range of
situations that may arise;
85.
1488 Ibid., para. 90.
1489 Ibid., para. 85, footnote 1008.
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(c) special care should be taken so as to avoid the draft model clauses
overlapping with the guidelines contained in the Guide to Provisional Application of
Treaties; and
(d) the draft model clauses should be accompanied, for reference purposes, with
examples of clauses contained in existing treaties.
279. In addition, in his view, the draft model clauses should at least provide for the
following situations:
(a) the provisional application of a treaty or a part of a treaty in the treaty itself
or in a separate agreement;
(b) the most common situations of termination of the provisional application of a
treaty or a part of a treaty;
(c) the possibility of opting for the provisional application of a treaty or a part of
a treaty, or for opting not to have the treaty or a part of a treaty being provisionally applied
for that State or international organization, particularly whenever the decision to resort to
provisional application is made by:
(i) a resolution adopted by an international organization or at an
intergovernmental conference in which the State or international organization
concerned is not in agreement with such resolution; or,
(ii) a declaration by a State or international organization that is not a negotiating
party to the treaty; and
(d) limitations deriving from internal law of States or rules of international
organizations.
280. Furthermore, as had been explained in his fifth report, 1490 submitted in 2018, the
draft model clauses were intended only to draw attention to some of the most common legal
issues that arose in the event of an agreement to apply a treaty provisionally. Accordingly,
they contained elements that reflected the most clearly established practice of States and
international organizations, while avoiding other elements that were not reflected in
practice or were unclear or legally imprecise. While none of the proposed wording was
taken verbatim from any existing treaty, the draft model clauses included footnotes giving
examples of provisional application clauses found in treaties that referred generally to the
same issue covered in the draft model clause in question, although such examples were by
no means exhaustive.
281. During the informal consultations, members were generally supportive of the
proposal to include a set of draft model clauses, as an annex to the Guide to Provisional
Application of Treaties, to be adopted on second reading next year. A number of
suggestions were made concerning the approach to be taken to the model clauses, as well as
on the drafting of the draft model clauses. For example, it was stated that the Commission
should carefully explain their nature as not necessarily being definitive, but rather that they
were intended to merely provide a basis for States to negotiate such clauses in their treaties.
It was also suggested that a clearer distinction be drawn, in the text of the draft model
clauses, between bilateral and multilateral treaties. Support was also expressed for the
inclusion of draft model clauses 4 and 5, dealing with the question of opting out of
provisional application arising from a resolution of an international organization, and
limitations deriving from internal law of States or rules of international organizations,
respectively. Indeed, the accompanying commentary would need to provide clear
explanations.
282. The concern was also expressed, during the informal consultations, that the
inclusion of a set of draft model clauses could be interpreted as the Commission
encouraging States to resort to provisional application. In the view of the Special
Rapporteur, such concern had existed from the very beginning of the work on the topic.
The very fact of clarifying the applicable rules could be understood as facilitating the
1490 A/CN.4/718, paras. 75–77, and Add.1.
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provisional application of treaties. However, this was not necessarily the only possible
interpretation. It was recalled that there already existed a significant body of practice of
States resorting to provisional application from even before the 1969 Vienna Convention on
the Law of Treaties,1491 and especially so since the adoption of article 25 of that Convention.
The Commission had decided to undertake the topic in order to provide a service to the
Member States by seeking to clarify the legal framework for provisional application as well
some of the legal consequences arising therefrom. At all times, the optional and voluntary
nature of provisional application had been emphasized. The draft model clauses would
simply be provided to facilitate drafting in those situations where negotiating parties
decided to resort to the mechanism of provisional application.
283. The Special Rapporteur proposed that the Commission annex his revised version of
the draft model clauses to its annual report to the General Assembly, with the request that
the Governments also consider them in preparing their comments and observations on the
first reading of the Guide to Provisional Application of Treaties. It would be on the basis of
the views of members of the Commission, expressed during the informal consultations,
together with the comments received from Governments, that he would include a further
revised version of the draft model clauses in his final report to be considered at the seventy-
second session of the Commission.
284. At the same 3495th meeting, the Commission took note of the oral report, and
decided to annex the proposed draft model clauses to the Commission’s report to the
General Assembly, with a view to seeking comments from Governments in advance of the
commencement of the second reading of the draft Guide to Provisional Application of
Treaties at the next session of the Commission. The proposed draft model clauses appear in
annex A to the present report.
B. Sea-level rise in relation to international law
285. At its 3467th meeting, on 21 May 2019, the Commission decided to include the
topic “Sea-level rise in relation to international law” in its programme of work and decided
to establish an open-ended Study Group on the topic co-chaired, on a rotating basis, by: Mr.
Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Patricia Galvão Teles, Ms. Nilüfer Oral and Mr.
Juan José Ruda Santolaria.
C. Request by the Commission for the Secretariat to prepare studies on

topics in the Commission’s agenda
286. At its 3507th meeting, on 9 August 2019, the Commission requested the Secretariat
to prepare a memorandum surveying the case law of inter-State arbitral tribunals and
international criminal courts and tribunals of a universal character, as well as treaties, which
would be particularly relevant for its future work on the topic “General principles of law”.
D. Programme, procedures and working methods of the Commission and

its documentation
287. At its 3470th meeting, on 24 May 2019, the Commission established a Planning
Group for the present session.
288. The Planning Group held two meetings on 24 May and 23 July 2019. It had before it
section E, entitled “Other decisions and conclusions of the Commission”, of the topical
summary of the discussion held in the Sixth Committee of the General Assembly during its
seventy-third session (A/CN.4/724); General Assembly resolution 73/265 of 22 December
2018 on the report of the International Law Commission on the work of its seventieth
1491 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), United Nations, Treaty Series,
vol. 1155, No. 18232, p. 331.
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session; and General Assembly resolution 73/207 of 20 December 2018 on the rule of law
at the national and international levels.
1. Working Group on the long-term programme of work

289. At its 1st meeting, on 24 May 2019, the Planning Group decided to reconvene the
Working Group on the long-term programme of work, with Mr. Mahmoud D. Hmoud as
Chair. The Chair of the Working Group presented an oral report on the work of the
Working Group at the current session to the Planning Group, at its 2nd meeting, on 23 July
2019. The Planning Group took note of the oral report.
290. At the present session, the Commission, on the recommendation of the Working
Group, decided to recommend the inclusion of the following topics in the long-term
programme of work of the Commission:
(a) Reparation to individuals for gross violations of international human rights
law and serious violations of international humanitarian law; and
(b) Prevention and repression of piracy and armed robbery at sea.
291. In the selection of the topics, the Commission was guided by its recommendation at
its fiftieth session (1998) regarding the criteria for the selection of the topics, namely: (a)
the topic should reflect the needs of States in respect of the progressive development and
codification of international law; (b) the topic should be at a sufficiently advanced stage in
terms of State practice to permit progressive development and codification; and (c) the
topic should be concrete and feasible for progressive development and codification. The
Commission further agreed that it should not restrict itself to traditional topics, but could
also consider those that reflect new developments in international law and pressing
concerns of the international community as a whole. The Commission considered that work
on the two topics would constitute useful contributions to the progressive development of
international law and its codification. The syllabuses of the topics selected appear as
annexes B and C to the present report.
2. Working Group on methods of work of the Commission

292. At its 1st meeting, on 24 May 2019, the Planning Group decided to re-establish the
Working Group on methods of work of the Commission, with Mr. Hussein A. Hassouna as
Chair. The Chair of the Working Group presented an oral report on the work of the
Working Group at the current session to the Planning Group, at its 2nd meeting, on 23 July
2019. The Planning Group took note of the oral report.
3. Consideration of General Assembly resolution 73/207 of 20 December 2018 on the rule

of law at the national and international levels
293. The General Assembly, in resolution 73/207 of 20 December 2018 on the rule of
law at the national and international levels, inter alia, reiterated its invitation to the
Commission to comment, in its report to the General Assembly, on its current role in
promoting the rule of law. Since its sixtieth session (2008), the Commission has
commented annually on its role in promoting the rule of law. The Commission notes that
the comments contained in paragraphs 341 to 346 of its 2008 report 1492 remain relevant and
reiterates the comments made at its previous sessions.1493
1492 Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10).
1493 Ibid., Sixty-fourth Session, Supplement No. 10 (A/64/10), para. 231; ibid., Sixty-fifth Session,
Supplement No. 10 (A/65/10), paras. 390–393; ibid., Sixty-sixth Session, Supplement No. 10
(A/66/10), paras. 392–398; ibid., Sixty-seventh Session, Supplement No. 10 (A/67/10), paras. 274–
279; ibid., Sixty-eighth Session, Supplement No. 10 (A/68/10), paras. 171–179; ibid., Sixty-ninth
Session, Supplement No. 10 (A/69/10), paras. 273–280; ibid., Seventieth Session, Supplement No. 10
(A/70/10), paras. 288–295; ibid., Seventy-first Session, Supplement No.10 (A/71/10), paras. 314–322;
ibid., Seventy-second Session, Supplement No. 10 (A/72/10), paras. 269–278; ibid., Seventy-third
Session, Supplement No. 10 (A/73/10), paras. 372–380.
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294. The Commission recalls that the rule of law is of the essence of its work. The
Commission’s purpose, as set out in article 1 of its statute, is to promote the progressive
development of international law and its codification.
295. Having in mind the principle of the rule of law in all its work, the Commission is
fully conscious of the importance of the implementation of international law at the national
level, and aims at promoting respect for the rule of law at the international level.
296. In fulfilling its mandate concerning the progressive development of international law
and its codification, the Commission will continue to take into account, where appropriate,
the rule of law as a principle of governance and the human rights that are fundamental to the
rule of law, as reflected in the preamble and in Article 13 of the Charter of the United
Nations and in the Declaration of the high-level meeting of the General Assembly on the
rule of law at the national and international levels. 1494
297. In its current work, the Commission is aware of “the interrelationship between the
rule of law and the three pillars of the United Nations (peace and security, development, and
human rights)”,1495 without emphasizing one at the expense of the other. In this context, the
Commission is cognizant that the 2030 Agenda for Sustainable Development recognizes the
need for an effective rule of law and good governance at all levels. 1496 In fulfilling its
mandate concerning the progressive development and codification of international law, the
Commission is conscious of current challenges for the rule of law.
298. Recalling that the General Assembly has stressed the importance of promoting the
sharing of national best practices on the rule of law, 1497 the Commission wishes to recall that
much of its work consists of collecting and analysing national practices related to the rule of
law with a view to assessing their possible contribution to the progressive development and
codification of international law. In this spirit, the Commission particularly welcomes the
decision of the General Assembly inviting Member States to focus their comments during
the upcoming Sixth Committee debate at the seventy-fourth session of the General
Assembly regarding the rule of law on the subtopic “Sharing best practices and ideas to
promote the respect of States for international law”.1498
299. Bearing in mind the role of multilateral treaty processes in advancing the rule of
law,1499 the Commission recalls that the work of the Commission on different topics has led
to several multilateral treaty processes and to the adoption of a number of multilateral
treaties.1500
300. In the course of the present session, the Commission has continued to make its
contribution to the rule of law, including by working on the topics, “Crimes against
humanity” (adopted on second reading at the current session), “Peremptory norms of
general international law (jus cogens)” (adopted on first reading at the current session),
“Protection of the environment in relation to armed conflicts” (adopted on first reading at
the current session), “Succession of States in respect of State responsibility”, “Immunity of
State officials from foreign criminal jurisdiction”, “General principles of law” and
“Provisional application of treaties”. The Commission also decided to include a new topic,
“Sea-level rise in relation to international law” in its programme of work.
301. The Commission reiterates its commitment to the rule of law in all of its activities.
1494 General Assembly resolution 67/1 of 30 November 2012 on the Declaration of the high-level meeting
of the General Assembly on the rule of law at the national and international levels, para. 41.
1495 Report of the Secretary-General on measuring the effectiveness of the support provided by the United
Nations system for the promotion of the rule of law in conflict and post-conflict situations,
S/2013/341, 11 June 2013, para. 70.
1496 General Assembly resolution 70/1 of 21 October 2015, para. 35.
1497 General Assembly resolution 73/207 of 20 December 2018, paras. 2 and 23.
1498 Ibid., para. 23.
1500 See more specifically Official Records of the General Assembly, Seventieth Session, Supplement No.
10 (A/70/10), para. 294.
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4. Honoraria
302. The Commission reiterates its views concerning the question of honoraria, resulting
from the adoption by the General Assembly of its resolution 56/272 of 27 March 2002,
which have been expressed in the previous reports of the Commission. 1501 The Commission
emphasizes that resolution 56/272 especially affects Special Rapporteurs, as it
compromises support for their research work.
5. Documentation and publications

303. The Commission underscored once more the unique nature of its functioning in the
progressive development of international law and its codification, in that it attaches
particular relevance to State practice and the decisions of national and international courts
in its treatment of questions of international law. The Commission reiterated the importance
of providing and making available all evidence of State practice and other sources of
international law relevant to the performance of the function of the Commission. The
reports of its Special Rapporteurs require an adequate presentation of precedents and other
relevant data, including treaties, judicial decisions and doctrine, and a thorough analysis of
the questions under consideration. The Commission stresses that it and its Special
Rapporteurs are fully conscious of the need to achieve economies whenever possible in the
overall volume of documentation and will continue to bear such considerations in mind.
While the Commission is aware of the advantages of being as concise as possible, it
reiterates its strong belief that an a priori limitation cannot be placed on the length of the
documentation and research projects relating to the work of the Commission. It follows that
Special Rapporteurs cannot be asked to reduce the length of their report following
submission to the Secretariat, irrespective of any estimates of their length made in advance
of submission by the Secretariat. Word limits are not applicable to Commission
documentation, as has been consistently reiterated by the General Assembly. 1502 The
Commission stresses also the importance of the timely preparation of reports by Special
Rapporteurs and their submission to the Secretariat for processing and submission to the
Commission sufficiently in advance so that the reports are issued in all official languages
ideally four weeks before the start of the relevant part of the session of the Commission. In
this respect, the Commission reiterated its request that: (a) Special Rapporteurs submit their
reports within the time limits specified by the Secretariat; and (b) the Secretariat continue to
ensure that official documents of the Commission are published in due time in the six
official languages of the United Nations.
304. The Commission reiterated its firm view that the summary records of the
Commission, constituting crucial travaux préparatoires in the progressive development and
codification of international law, cannot be subject to arbitrary length restrictions. The
Commission once more noted with satisfaction that the measures introduced at its sixty-
fifth session (2013) to streamline the processing of its summary records had resulted in the
more expeditious transmission to members of the Commission of the English and French
versions for timely correction and prompt release. The Commission called on the
1501 See ibid., Fifty-seventh Session, Supplement No. 10 (A/57/10), paras. 525–531; ibid., Fifty-eighth
Session, Supplement No. 10 (A/58/10), para. 447; ibid., Fifty-ninth Session, Supplement No. 10
(A/59/10), para. 369; ibid., Sixtieth Session, Supplement No. 10 (A/60/10), para. 501; ibid., Sixty-first
Session, Supplement No. 10 (A/61/10), para. 269; ibid., Sixty-second Session, Supplement No. 10
(A/62/10), para. 379; ibid., Sixty-third Session, Supplement No. 10 (A/63/10), para. 358; ibid., Sixty-
fourth Session, Supplement No. 10 (A/64/10), para. 240; ibid., Sixty-fifth Session, Supplement No. 10
(A/65/10), para. 396; ibid., Sixty-sixth Session, Supplement No. 10 (A/66/10), para. 399; ibid., Sixty-
seventh Session, Supplement No. 10 (A/67/10), para. 280; ibid., Sixty-eighth Session, Supplement No.
10 (A/68/10), para. 181; ibid., Sixty-ninth Session, Supplement No. 10 (A/69/10), para. 281; and ibid.,
Seventieth Session, Supplement No. 10 (A/70/10), para. 299; ibid., Seventy-first Session, Supplement
No. 10 (A/71/10), para. 333; ibid., Seventy-second Session, Supplement No. 10 (A/72/10), para. 282;
ibid., Seventy-third Session, Supplement No. 10 (A/73/10), para. 382.
1502 For considerations relating to page limits on the reports of Special Rapporteurs, see, for example,
Yearbook … 1977, vol. II (Part Two), p. 132, and Yearbook … 1982, vol. II (Part Two), pp. 123–124.
See also General Assembly resolution 32/151 of 9 December 1977, para. 10, and General Assembly
resolution 37/111 of 16 December 1982, para. 5, as well as subsequent resolutions on the annual
reports of the Commission to the General Assembly.
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Secretariat to resume the practice of preparing summary records in English and French, and
to continue its efforts to sustain the measures in question, in order to ensure the expeditious
transmission of the provisional records to members of the Commission. The Commission
also welcomed the fact that these working methods had led to the more rational use of
resources and called on the Secretariat to continue its efforts to facilitate the preparation of
the definitive records in all official languages, without compromising their integrity.
305. The Commission expressed its gratitude to all Services involved in the processing of
documents, both in Geneva and in New York, for their efforts in seeking to ensure timely
and efficient processing of the Commission’s documents, often under narrow time
constraints. It emphasized that timely and efficient processing of documentation was
essential for the smooth conduct of the Commission’s work.
306. The Commission reaffirmed its commitment to multilingualism and recalls the
paramount importance to be given in its work to the equality of the six official languages of
the United Nations, which had been emphasized in General Assembly resolution 69/324 of
11 September 2015.
307. The Commission once again expressed its warm appreciation to the United Nations
Office at Geneva Library, which continues to assist members of the Commission very
efficiently and competently.
6. Yearbook of the International Law Commission

308. The Commission reiterated that the Yearbook of the International Law Commission
was critical to the understanding of the Commission’s work in the progressive development
of international law and its codification, as well as in the strengthening of the rule of law in
international relations. The Commission took note that the General Assembly, in its
resolution 73/265, expressed its appreciation to Governments that had made voluntary
contributions to the trust fund on the backlog relating to the Yearbook, and encouraged
further contributions to the trust fund.
309. The Commission recommends that the General Assembly, as in its resolution 73/265,
express its satisfaction with the remarkable progress achieved in the past few years in
catching up with the backlog of the Yearbook in all six languages, and welcome the efforts
made by the Division of Conference Management, especially the Editing Section of the
United Nations Office at Geneva, in effectively implementing relevant resolutions of the
General Assembly calling for the reduction of the backlog; and encourage the Division of
Conference Management to continue providing all necessary support to the Editing Section
in advancing work on the Yearbook.
7. Assistance of the Codification Division

310. The Commission expressed its appreciation for the invaluable assistance of the
Codification Division of the Secretariat in its substantive servicing of the Commission and
the ongoing assistance provided to Special Rapporteurs and the preparation of in-depth
research studies pertaining to aspects of topics presently under consideration, as requested
by the Commission. In particular, the Commission expressed its appreciation to the
Secretariat for its preparation of a memorandum on information on treaties which may be of
relevance to the future work of the Commission on the topic “Succession of States in
respect of State responsibility” (A/CN.4/730).
8. Websites
311. The Commission expressed its deep appreciation to the Secretariat for the website
on the work of the Commission, and welcomed its continuous updating and
improvement.1503 The Commission reiterated that the website and other websites maintained
by the Codification Division1504 constitute an invaluable resource for the Commission and
for researchers of the work of the Commission in the wider community, thereby
1503 http://legal.un.org//ilc.
1504 In general, available from: http://legal.un.org/cod/.
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contributing to the overall strengthening of the teaching, study, dissemination and wider
appreciation of international law. The Commission welcomed the fact that the website on
the work of the Commission included information on the current status of the topics on the
agenda of the Commission, as well as links to the advance edited versions of the summary
records of the Commission and the audio recording of the plenary meetings of the
Commission.
9. United Nations Audiovisual Library of International Law

312. The Commission once more noted with appreciation the extraordinary value of the
United Nations Audiovisual Library of International Law 1505 in promoting a better
knowledge of international law and the work of the United Nations in the field, including
the work of the Commission.
E. Date and place of the seventy-second session of the Commission
313. The Commission decided that its seventy-second session would be held in Geneva
from 27 April to 5 June and from 6 July to 7 August 2020.
F. Cooperation with other bodies
314. At the 3478th meeting, on 11 July 2019, Judge Abdulqawi Ahmed Yusuf, President
of the International Court of Justice, addressed the Commission and briefed it on the recent
judicial activities of the Court.1506 An exchange of views followed.
315. The Committee of Legal Advisers on Public International Law of the Council of
Europe was represented at the present session of the Commission by the Chair of the
Committee, Mr. Petr Válek, and the Head of the Public International Law and Treaty Office
Division of the Directorate of Legal Advice and Public International Law and Secretary of
the Committee, Ms. Marta Requena, both of whom addressed the Commission at its 3472nd
meeting, on 31 May 2019.1507 They focused on the current activities of the Committee in the
field of public international law, as well of the Council of Europe. An exchange of views
followed.
316. The Inter-American Juridical Committee was represented at the present session of
the Commission by its President, Ms. Ruth Correa Palacio, who addressed the Commission
at the 3477th meeting, on 10 July 2019.1508 She gave an overview of the activities of the
Committee on various legal issues, focusing in particular on activities in 2018. An
exchange of views followed.
317. The Asian-African Legal Consultative Organization was represented at the present
session of the Commission by its Secretary-General, Mr. Kennedy Gastorn, who addressed
the Commission at its 3485th meeting, on 18 July 2019.1509 He briefed the Commission on
the organization and provided an overview of its deliberations at its fifty-seventh annual
session held in Japan from 8 to 12 October 2018, including on its discussions on topics on
the programme of work of the Commission. An exchange of views followed.
318. The African Union Commission on International Law was represented at the present
session of the Commission by Ms. Kathleen Quartey Ayensu and Mr. Sindiso H. Sichone,
members of the African Union Commission, who addressed the Commission at its 3486th
meeting, on 19 July 2019.1510 They gave an overview of the activities of the African Union
Commission on the various legal issues that it had been engaged in since its establishment,
including activities to commemorate its tenth anniversary. An exchange of views followed.
1505 http://legal.un.org/avl/intro/welcome_avl.html.
1506 The statement is recorded in the summary record of that meeting.
1507 The statements are recorded in the summary record of that meeting.
1510 The statements are recorded in the summary record of that meeting.
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319. On 17 July 2019, an informal exchange of views was held between members of the
Commission and the International Committee of the Red Cross (ICRC) on topics of mutual
interest. Welcoming remarks were made by Mr. Gilles Carbonnier, Vice President, ICRC,
and opening remarks by Ms. Cordula Droege, Chief Legal Officer and Head of the Legal
Division, ICRC, and Mr. Pavel Šturma, Chair of the Commission. Presentations were made
on the topics, “The role of States in clarifying or developing international law” by Ms.
Cordula Droege and by Mr. Pavel Šturma, as well as on “Peremptory norms of general
international law (jus cogens) by Mr. Dire Tladi, Special Rapporteur on the topic, “and on
“International humanitarian law update on autonomous weapons systems” by Ms. Netta
Goussac, Legal Adviser, ICRC. Each set of presentations was followed by discussion
moderated by Ms. Helen Durham, Director, International Law and Policy Department,
ICRC. Concluding remarks were made by Ms. Durham.
G. Representation at the seventy-fourth session of the General Assembly
320. The Commission decided that it should be represented at the seventy-fourth session
of the General Assembly by its Chair, Mr. Pavel Šturma.
H. International Law Seminar
321. Pursuant to General Assembly resolution 73/265 of 22 December 2018, the fifty-
fifth session of the International Law Seminar was held at the Palais des Nations from 8 to
26 July 2019, during the present session of the Commission. The Seminar is intended for
young jurists specializing in international law, and young professors or government
officials pursuing an academic or diplomatic career in posts in the civil service of their
countries.
322. Twenty-five participants of different nationalities, from all regional groups, took
part in the session.1511 The participants attended plenary meetings of the Commission and
specially arranged lectures, and participated in working groups on specific topics.
323. Mr. Pavel Šturma, Chair of the Commission, opened the Seminar. Mr. Markus
Schmidt, Senior Legal Adviser to the United Nations Office at Geneva, was responsible for
the administration, organization and conduct of the Seminar and served as its Director. Mr.
Vittorio Mainetti, international law expert and consultant, acted as Coordinator, assisted by
Mr. Pietro Gerundino, legal assistant from the University of Geneva.
324. The following lectures were given by members of the Commission: “The work of
the International Law Commission” by Mr. Georg Nolte; “The International Law
Commission viewed from outside” by Ms. Patrícia Galvão Teles; “Evidence before
international courts and tribunals” by Mr. Aniruddha Rajput; “Protection of the atmosphere”
by Mr. Shinya Murase; “Immunity of State officials from foreign criminal jurisdiction” by
Ms. Concepción Escobar Hernández; “Peremptory norms of general international law (jus
cogens)” by Mr. Dire D. Tladi; “Reparations to individuals for gross violations of
international human rights law, and serious violations of international humanitarian law” by
Mr. Claudio Grossman Guiloff; “Crimes against humanity” by Mr. Sean D. Murphy;
1511 The following persons participated in the Seminar: Mr. Mohamed Abdelmeguid Rabie (Egypt), Mr.
Hafez Abou Alchamat (Syrian Arab Republic), Mr. Alexander Antialon Conde (Peru), Ms. Giulia
Bernabei (Italy), Ms. Ozge Bilge (Turkey), Ms. Elisabetta Bucci (San Marino), Ms. Arianna del
Carmen Carral Castelo (Cuba), Mr. Delva Dimanche (Haiti), Ms. Victoria Ernst (United States of
America), Ms. Benjaporn Fattier (Thailand), Mr. René Figueredo Corrales (Paraguay), Mr. Javier
Fernando García Botero (Colombia), Mr. Gueorgui Gueorguiev (Bulgaria), Ms. Fatima Hajoui
(Morocco), Ms. Ha’a Hauirae (Solomon Islands), Mr. Martin Mändveer (Estonia), Mr. Chany Pavel
Ngatheyo Akony (Congo), Ms. Marie Claire Ngo Nyeheg (Cameroon), Ms. Pia Niederdorfer
(Austria), Ms. Marieanne Oludhe (Kenya), Ms. Naureen Rahim (Bangladesh), Mr. Shokirjon
Rakhmatov (Uzbekistan), Mr. Simon-Peter St. Emmanuel (Nigeria), Ms. Aichatou Tamba (Senegal),
Mr. Kiran Mohan Vazhapully (India). The Selection Committee, chaired by Mr. Makane Moïse
Mbengue, Professor of International Law at the University of Geneva, met on 30 April 2019 and
selected 25 candidates from 304 applications.
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“General principles of law” by Mr. Marcelo Vázquez Bermúdez; and “Provisional

application of treaties” by Mr. Juan Manuel Gómez Robledo.
325. Participants attended a lecture at the Graduate Institute of International and
Development Studies in Geneva on “The expansion of powers of international
organizations: theory and practice”, delivered by Mr. Fouad Zarbiev, Associate Professor of
international law, and Mr. Gian Luca Burci, Adjunct Professor of international law,
Graduate Institute of International and Development Studies. They also attended a
conference organized by the University of Geneva on the topic “Protection of the
environment and water installation during and after armed conflicts”, with the participation
of Ms. Marja Lehto, member of the Commission and Special Rapporteur on the topic
“Protection of the environment in relation to armed conflicts”. The following speakers
spoke at the conference: Ms. Laurence Boisson de Chazournes, Professor of International
Law, University of Geneva; Mr. Marco Sassòli, Professor of International Law, University
of Geneva, and Director of the Geneva Academy of International Humanitarian Law and
Human Rights Law; Ms. Mara Tignino, Reader, University of Geneva, and Coordinator of
the Platform for International Water Law at the Geneva Water Hub; Ms. Helen Obregón
Gieseken, Legal Advisor, Legal Division, ICRC; and Ms. Danae Azaria, Professor of
International Law, University College London.
326. Participants visited the International Labour Organization (ILO), and attended two
presentations given by Mr. Dražen Petrović, Registrar of the ILO Administrative Tribunal,
on “International administrative justice”, and Mr. Georges Politakis, ILO Legal Adviser, on
“ILO standard-setting”.
327. Two working groups, on identifying new topics for the Commission and on
evidence before international courts and tribunals, were organized and participants were
assigned to one of them. Two members of the Commission, Ms. Patrícia Galvão Teles and
Mr. Aniruddha Rajput, respectively, supervised and provided guidance to the working
groups. Each group prepared a report and presented its findings during the last working
session of the Seminar. The reports were compiled and distributed to all participants, as
well as to the members of the Commission.
328. Participants also attended the first Conference of the International Law Seminar
Alumni Network. Ms. Verity Robson (alumna 2017), President of the Network and legal
counsellor at the Permanent Mission of the United Kingdom of Great Britain and Northern
Ireland in Geneva, and Mr. Vittorio Mainetti, Secretary-General of the Network and
Coordinator of the International Law Seminar, welcomed participants and alumni. Some 90
persons attended the event. Two panels were organized on the international law and the
environment and procedural issues in international dispute settlement. Mr. Christian
Tomuschat (alumnus 1966), Professor Emeritus, Humboldt University of Berlin, former
member of the Commission, delivered a keynote speech. The following speakers spoke at
the conference: Ms. Marja Lehto (alumna 1993), member of the Commission; Ms. Jasmine
Moussa (alumna 2009), First Secretary at the Permanent Mission of Egypt in Geneva; Mr.
Shinya Murase (alumnus 1975), member of Commission; Mr. Gentian Zyberi (alumnus
2008), Head of Department at the Norwegian Centre for Human Rights, member of Human
Rights Committee; Mr. Marcelo Kohen (alumnus 1989), Professor of International Law at
Graduate Institute of International and Development Studies in Geneva and Secretary
General of the Institute of International Law, spoke in the first panel; Mr. Antonios Abou
Kasm (alumnus 2009), Professor of International Law at Lebanese University; Ms. Mónica
Feria-Tinta (alumna 2000), Barrister, 20 Essex Street Chambers; Mr. Philippe Gautier
(alumnus 1988), Registrar of the International Tribunal for the Law of the Sea; Mr. Raul
Pangalangan (alumnus 1988), Judge of the International Criminal Court; Mr. Brian
McGarry (alumnus 2013), Lecturer and Senior Researcher at Geneva Centre for
International Dispute Settlement, spoke in the second panel. Finally, Ms. Mary-Elisabeth
Chong (alumna 2017), Vice-President of the Network and State Counsel at Attorney
General’s Chambers of Singapore, made concluding remarks.
329. The Chair of the Commission, the Director of the International Law Seminar and Mr.
René Figueredo Corrales, on behalf of participants attending the Seminar, addressed the
Commission during the closing ceremony of the Seminar. Each participant was presented
with a diploma.
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330. The Commission noted with preoccupation that in 2019 only five Governments had
made voluntary contributions to the United Nations Trust Fund for the International Law
Seminar: Austria, India, Ireland, Switzerland and the United Kingdom. The financial crisis
of recent years seriously affected the finances of the Seminar. Therefore, the Fund was only
able to grant a limited number fellowships to deserving candidates from developing
countries. In 2019, 12 fellowships were granted (8 for living expenses only, and 4 for travel
and living expenses).
331. Since its inception in 1965, 1,258 participants, representing 177 nationalities, have
taken part in the Seminar. Some 760 participants have received a fellowship.
332. The Commission stresses the importance it attaches to the Seminar, which enables
young lawyers, especially those from developing countries, to familiarize themselves with
the work of the Commission and the activities of the many international organizations
based in Geneva. The Commission recommends that the General Assembly should again
appeal to States to make voluntary contributions in order to secure the organization of the
Seminar in 2020 with as broad participation as possible, and an adequate geographical
distribution.
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Annexes
Annex A
Draft model clauses on provisional application of treaties

(The following draft model clauses have been proposed by the Special Rapporteur
for consideration by the Commission at its seventy-second session.)
Commencement and termination
Draft model clause 1

1. This Treaty [article (s)…] shall apply provisionally1 from the date of signature2
[or from X date3], unless4 a State [an international organization] notifies the other State
1 Protocol to the Partnership and Cooperation Agreement establishing a partnership between the
European Communities and their Member States, of the one part, and the Russian Federation, of the
other, to take account of the accession of the Republic of Croatia to the European Union, Official
Journal of the European Union, No. L 373, p. 3,art. 4 (“This Protocol shall apply provisionally…”);
Agreement between the European Community and the Government of the Kyrgyz Republic on certain
aspects of air services, Ibid., No. L 179, p. 20, art. 9 (“…the Parties agree to provisionally apply this
Agreement…”); Exchange of notes between Switzerland and Liechtenstein relating to the distribution
of the tax benefits on CO2 and the reimbursement of the tax on CO2 to enterprises under
Liechtenstein’s law on the exchanges of rights, United Nations, Treaty Series, vol. 2763, p. 274, at
262, art. 12 (“…this Agreement shall apply provisionally…”); Council Decision of 18 November
2002 on the signature and provisional application of certain provisions of an Agreement establishing
an association between the European Community and its Member States, of the one part, and the
Republic of Chile, of the other part (2002/979/EC), Official Journal of the European Union, No. L
352, 30 December 2002, p. 1, art. 2 (“The following provisions of the Association Agreement shall be
applied on a provisional basis pending its entry into force …”); ECOWAS Protocol A/P.1/12/99
relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and
Security, art. 57 (“This Protocol shall enter into force provisionally upon signature…”);
Supplementary Protocol A/SP.1/01/06 Amending Articles VI-C, VI-I, IX- 8, XI – 2 AND XII of
Protocol A/P2/7/87 on the Establishment of the Western African Health Organization (WAHO), art. 2
(“This Protocol shall enter into force provisionally upon signature…”); Supplementary Protocol
A/SP.1/06/06 amending the Revised ECOWAS Treaty, art. 4 (“The present Supplementary Protocol
shall enter into force provisionally upon signature…”); ECOWAS Supplementary Protocol
A/SP.2/06/06 amending Article 3 Paragraphs 1, 2 and 4, Article 4 Paragraphs 1, 3 and 7 and Article
7,Paragraph 3 of the Protocol on the Community Court of Justice, art. 8 (“This Supplementary
Protocol shall come into force provisionally upon its signature…”).
2 Treaty between the Russian Federation, the Republic of Belarus, the Republic of Kazakhstan and the
Kyrgyz Republic on the deepening of integration in economic and humanitarian fields (Moscow, 29
March 1996), United Nations, Treaty Series, vol. 2014, No. 34547, p. 15, art. 26; Statutes of the
Community of Portuguese-Speaking Countries (Lisbon, 17 July 1996), Ibid., vol. 2233, No. 39756, p.
207; Agreement concerning permission for the transit of Yugoslav nationals who are obliged to leave
the country (Berlin, 21 March 2000), Ibid., vol. 2307, No. 41137, p. 3, art.7, para.3; Agreement
establishing the “Karanta” Foundation for support of non-formal education policies and including in
annex the Statutes of the Foundation (Dakar, 15 December 2000), ibid., vol. 2341, No. 41941, p. 3,
art. 8; 1972 International Cocoa Agreement (Geneva, 21 October 1972), ibid., vol. 882, No. 12652, p.
67, art. 66; Agreement between the Government of the United States of America and the Government
of the Republic of the Marshall Islands concerning cooperation to suppress the proliferation of
weapons of mass destruction, their delivery systems, and related materials by sea (Honolulu August
13, 2004), ibid., [vol. not yet published], No. 51490, art. 17, para. 2.
3 1994 International Coffee Agreement, United Nations, Treaty Series, vol. 1827, No. 31252, p. 3, art.
40; 1994 International Tropical Timber Agreement, Ibid., vol. 1955, No. 33484, p. 81, art. 41, para.2;
Association Agreement between the European Union and its Member States, of the one part, and
Ukraine, of the other part (Brussels, 21 March 2014), Official Journal of the European Union, L 161,
p. 3; 1968 International Coffee Agreement (open for signature at New York from 18 to 31 March
1968), United Nations, Treaty Series, vol. 647, No. 9262, p. 3, art. 62, para. 2; 1976 International
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[international organization] [Depository] at the time of signature [or any other time
agreed upon] that it does not consent to be bound by such provisional application. 5
2. The provisional application of this Treaty [or article (s)…] shall terminate upon
its entry into force6 for a State [an international organization] that is applying it
provisionally or if that State [international organization] notifies the other State
[international organization] [Depositary] of its intention not to become a party to the
Treaty.7
Coffee Agreement (London, 3 December 1975), ibid., vol. 1024, No. 15034, p. 3, art. 61, para. 2;
International Coffee Agreement, 1983 (London, 16 September 1982), ibid., vol. 1333, No. 22376, p.
119, art. 61, para. 2. Exchange of notes between Switzerland and Liechtenstein relating to the
distribution of the tax benefits on CO2 and the reimbursement of the tax on CO2 to enterprises under
Liechtenstein’s law on the exchanges of rights, United Nations, Treaty Series, vol. 2763, p. 274, at
262, No. 48680, art. 12 (“Like the Treaty, this Agreement shall apply provisionally as of…”).
4 Enhanced Partnership and Cooperation Agreement between the European Union and its Member
States, of the one part, and the Republic of Kazakhstan, of the other part, Official Journal of the
European Union, No. L 29, 4 February 2016, p. 3, art. 281, para. 5 (“unless otherwise specified
therein, shall apply provisionally”).
5 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of
the Sea of 10 December 1982 (New York, 28 July 1994), United Nations, Treaty Series, vol. 1836, p.
41, at p. 46, art. 7; Exchange of notes of 17 June 1979 constituting an agreement for the provisional
application of the Convention on International Land Transport and the annexes thereto (Mar del Plata
on 10 November 1977) (available on the website of the Ministry of Foreign Affairs of Peru,
Directorate-General for Treaties: https://apps.rree.gob.pe/portal/webtratados.nsf/Tratados_
Bilateral.xsp?action=openDocument&documentId=E0F2.); Protocol on the Provisional Application
of the Agreement establishing the Caribbean Community Climate Change Centre (Belize City, 5
February 2002), United Nations, Treaty Series, [vol. not yet published], No. 51181 (text available at:
https://treaties.un.org); Protocol on the Provisional Application of the Revised Treaty of Chaguaramas
(Nassau, 5 July 2001), ibid., vol. 2259, No. 40269, p. 440; Agreement on the provisional application
of certain provisions of Protocol No. 14 [to the Convention for the Protection of Human Rights and
Fundamental Freedoms, amending the control system of the Convention] pending its entry into force
(Agreement of Madrid) (Madrid, 12 May 2009), Council of Europe Treaty Series, No. 194; available
at: https://rm.coe.int/1680083718.
6 Agreement of Madrid; Agreement relating to the implementation of Part XI of the United Nations
Convention on the Law of the Sea of 10 December 1982 and the annex to the agreement, on costs to
States parties and institutional arrangements; International Cocoa Agreement, 1986 (Geneva, 25 July
1986) United Nations, Treaty Series, vol. 1446, No. 24604, p. 104, art. 69 (“It shall remain a
provisional member until the date of deposit of its instrument of ratification, acceptance, approval or
accession.”); Agreement on the provisional application of certain provisions of Protocol No. 14
pending its entry into force. Council of Europe, Treaty Series, No. 194, para. e (“the provisional
application of the above-mentioned provisions of Protocol No. 14 will terminate upon entry into force
of Protocol No. 14 or if the High Contracting Parties in some other manner so agree.”).
7 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969). United Nations, Treaty Series,
vol. 1155, No. 18232, p. 331; Treaty between the Federal Republic of Germany and the Kingdom of
the Netherlands concerning the implementation of air traffic controls by the Federal Republic of
Germany above Dutch territory and concerning the impact of the civil operations of Niederrhein
Airport on the territory of the Kingdom of the Netherlands (Berlin, 29 April 2003), ibid., vol. 2389,
No. 43165, p. 117; Agreement between Spain and the International Oil Pollution Compensation Fund
(London, 2 June 2000), ibid., vol. 2161, No. 37756, p. 45; Agreement between the Government of the
United States of America and the Government of the Republic of the Marshall Islands concerning
cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems, and
related materials by sea (Honolulu, 13 August 2004), ibid., vol. [not yet published], No. 51490 (text
available at: https://treaties.un.org); Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, ibid., vol. 2167, p. 3, at p.
126.; Energy Charter Treaty (Lisbon, 17 December 1994), ibid., vol. 2080, No. 36116, p. 95; Final
Act of the European Energy Charter Conference, Art. 45 (text available at: https://www.italaw.com/
sites/default/files/laws/italaw%206101%2833%29.pdf) (“Any signatory may terminate its provisional
application of this Treaty by written notification to the Depository of its intention not to become a
Contracting Party to the Treaty”); Association Agreement between the European Union and its
Member States, of the one part, and Ukraine, of the other part (Brussels, 21 March 2014), Official
Journal of the European Union, No. L 161, 29 May 2014, p. 3, art. 486, para. 7 (“Either Party may
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Form of agreement
This Treaty [or article (s)…] can be provisionally applied in accordance with the
provisions of a separate agreement to that effect. 8
give written notification to the Depositary of its intention to terminate the provisional application of
this Agreement.”); Framework Agreement between the United States of America and the European
Union on the participation of the United States of America in European Union crisis management
operations, ibid., No. L 143, 31 May 2011, p. 2, art. 2, para. 10 (“Either party may terminate this
Agreement upon six month’s written notice to the other Party.”); Enhanced Partnership and
Cooperation Agreement between the European Union and its Member States, of the one part, and the
Republic of Kazakhstan, of the other part, ibid., No. L 29, 4 February 2016, p. 3, art. 281, para. 10
(“Either Party may terminate the provisional application by means of a written notification delivered
to the other Party through diplomatic channels.”; ECOWS Energy Protocol A/P4/1/03, art. 40 (“Any
signatory may terminate its provisional application of this Protocol by written notification to the
Depository of its intention not to become a Contracting Party to the Protocol.”); Free Trade
Agreement between the European Union and its Member States, of the one part, and the Republic of
Korea, of the other part, Official Journal of the European Union, No. L 127, 14 May 2011, p. 6, art.
15.10. para. c (“A Party may terminate provisional application by written notice to the other Party.
Such termination shall take effect on the first day of the month following notification”); Treaty
between the Federal Republic of Germany and the Kingdom of the Netherlands concerning the
implementation of air traffic controls by the Federal Republic of Germany above Dutch territory and
concerning the impact of the civil operations of Niederrhein Airport on the territory of the Kingdom
of the Netherlands (Berlin, 29 April 2003), United Nations, Treaty Series, vol. 2389, No. 43165, p.
117, art. 16 (“Its provisional application shall be terminated if one of the Contracting Parties declares
its intention not to become a Contracting Party.”); Agreement between the Government of the United
States of America and the Government of the Republic of the Marshall Islands concerning
cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems, and
related materials by sea, Ibid., [vol. not yet published], No. 51490, art. 17, para. 3 (“This Agreement
may be terminated by either Party upon written notification of such termination to the other Party
through the diplomatic channel, termination to be effective one year from the date of such
notification”); ECOWAS Energy Protocol A/P4/1/03, art. 40 (“Any signatory may terminate its
provisional application of this Protocol by written notification to the Depository of its intention not to
become a Contracting Party to the Protocol.”).
8 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of
the Sea of 10 December 1982 (New York, 28 July 1994), United Nations, Treaty Series, vol. 1836, p.
41, at p. 46.; Agreement on the provisional application of certain provisions of Protocol No. 14
pending its entry into force; International Wheat Agreement 1986 (London, 14 March 1986), ibid.,
vol. 1429, No. 24237, p. 85, art. 28 (Referencing a separate “mutual consent”); Havana Charter for an
International Trade Organization (1947) (E/CONF.2/78) (text available at:
https://treaties.un.org/doc/source/docs/E_CONF.2_78-E.pdf (“Any Member which before July 1,
1948 has signed the Protocol of Provisional Application…”).
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Opt in/Opt out9

A State [An international organization] that is not a negotiating State
[international organization] of this Treaty may declare that it will provisionally apply it
[or article (s)…], provided that the negotiating States [international organizations] accept
such declaration.

A State [An international organization] may declare that it will not provisionally
apply a treaty [or article (s)…] when the decision to its [their] provisional application
results from a resolution of [X international organization or X intergovernmental
conference] to which that State [international organizations] does not agree.
9 Draft Guideline 3 (General Rule) chose not to restrict the possibility of resorting to provisional
application to the ‘negotiating States’ (and international organizations), thereby leaving open that
possibility to ‘States (international organizations) concerned’. In order not to create a presumption
that non-negotiating States and international organizations are generally permitted to be bound by the
provisional application of a treaty or a part of a treaty, negotiating States should accept it as
established in Draft Guideline 4 (Form of agreement), paragraph (b). This is what draft model clause
3 intends to address.
Draft Guideline 4 allows also for a resolution adopted by an international organization or at an
intergovernmental conference, as a means to agree on the provisional application of a treaty or a part
of a treaty. Some examples are the following: Article 3, Council Decision of 25 June 2012 on the
signing, on behalf of the European Union, of the Agreement establishing an Association between the
European Union and its Member States, on the one hand, and Central America on the other, and the
provisional application of Part IV thereof concerning trade matters (2012/734/EU) (Official Journal
of the European Union, No. L 346, 15 December 2012, p. 1); Article 2, Council Decision of 18
November 2002 on the signature and provisional application of certain provisions of an Agreement
establishing an association between the European Community and its Member States, of the one part,
and the Republic of Chile, of the other part (2002/979/EC) (Official Journal of the European Union,
No. L 352, 30 December 2002, p. 1); Article 4, Council Decision of 23 June 2014 on the signing, on
behalf of the European Union, and provisional application of the Association Agreement between the
European Union and the European Atomic Energy Community and their Member States, of the one
part, and Ukraine, of the other part, as regards Title III (with the exception of the provisions relating
to the treatment of third country nationals legally employed as workers in the territory of the other
Party) and Titles IV, V, VI and VII thereof, as well as the related Annexes and Protocols
(2014/668/EU) (Official Journal of the European Union, No. L 278, 20 September 2014, p. 1);
Article 3, Council Decision of 16 June 2014 on the signing, on behalf of the European Union, and
provisional application of the Association Agreement between the European Union and the European
Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part
(2014/494/EU) (Official Journal of the European Union, No. L 261, 30 August 2014, p. 1); Article 2,
Council Decision of 10 May 2010 on the signing, on behalf of the European Union, and provisional
application of the Framework Agreement between the European Union and its Member States, on the
one part, and the Republic of Korea, on the other part (2013/40/EU) (Official Journal of the European
Union, No. L 20, 23 January 2013, p. 1). Without prejudice to the rules of decision-making applicable
to an international organization or intergovernmental conference in a concrete situation and to the
question of whether a resolution has binding character, the voluntary nature of provisional application
may call for an opt-out clause in case a State or international organization does not agree with such
resolution. Draft model clause 4 addresses that situation.
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Limitations deriving from internal law of States or rules of international

organizations10

A State [An international organization] may at the time of expressing its
agreement to the provisional application of this Treaty [article (s)…] [or any other time
agreed upon] notify the other State [international organization] [Depository] of any
limitations deriving from its internal law 11 [the rules of the international organization]
that would affect compliance by that State [international organization] of such
provisional application.
10 A number of multilateral treaties refer to the internal law of concerned States. Some examples are the
following: Agreement relating to the implementation of Part XI of the United Nations Convention on
the Law of the Sea, article 7, paragraph 2; Agreement on collective forces of rapid response of the
Collective Security Treaty Organization, art. 17; Trans-Pacific Strategic Economic Partnership
Agreement, article 20.5, paragraph 3; Article 26 of the 1995 Grains Trade Convention; Article XXII
(c) (signature and ratification) and article XXIII (c) (accession) of the 1999 Food Aid Convention;
Article 40 (entry into force), paragraphs 2 and 3, of the 1994 International Coffee Agreement; Article
38 of the 2006 International Tropical Timber Agreement (notification of provisional application); and
Article 45 (entry into force), paragraph 2, of the 2001 International Coffee Agreement.
11 Energy Charter Treaty (Lisbon, 17 December 1994), United Nations, Treaty Series, vol. 2080, No.
36116, p. 95, art. 45 (“to the extent that such provisional application is not inconsistent with its
constitution, laws or regulations”); Protocol Of Provisional Application of the General Agreement on
Tariffs and Trade (Geneva, 30 October 1947), ibid., vol. 55, No. 814, p. 308, art. 1 (“Undertake… to
apply provisionally…to the fullest extent not inconsistent with existing legislation.”); International
Natural Rubber Agreement (Geneva, 6 October 1979), ibid., vol. 120, No. 19184, p. 191, art. 59 (“a
Government may provide in its notification of provisional application that it will apply this
Agreement only within the limitations of its constitutional and/or legislative procedures.”); Sixth
International Tin Agreement (Geneva, 26 June 1981), ibid., vol. 1282, No. 21139 pg. 205, art. 53
(“will, within the limitations of its constitutional and/or legislative procedures, apply this Agreement
provisionally…”); Agreement on Air Transport between Canada and the European Community and
its Member States (available at: https://www.icao.int/sustainability/Documents/Compendium_
FairCompetition/Practices/EU-canada-OSA_final_text_agreement.pdf) (“in accordance with the
provisions of domestic law of the Parties…”); Common Aviation Area Agreement between the
European Union and its Member States, of the one part, and Georgia, of the other part (2010) (“ in
accordance with their internal procedures and/or domestic legislation as applicable”); Association
Agreement between the European Union and its Member States, of the one part, and Ukraine, of the
other part, Official Journal of the European Union, No. L 161, 29 May 2014, p. 3, art. 486, para. 3 (“
in accordance with their respective internal procedures and legislation as applicable.”); Enhanced
Partnership and Cooperation Agreement between the European Union and its Member States, of the
one part, and the Republic of Kazakhstan, of the other part, ibid., No. L 29, 4 February 2016, p. 3 (“
may apply this Agreement…in accordance with their respective internal procedures and legislation, as
applicable”); EuroMediterranean Aviation Agreement between the European Community and its
Member States, of the one part and the Kingdom of Morocco, of the other part, ibid., No. L 386, 29
December 2006, p. 57, art. 30 (“in accordance with the national laws of the Contracting Parties, from
the date of signature.”); ECOWAS Energy Protocol A/P4/1/03, art. 40 (“ to the extent that such
provisional application is not inconsistent with its constitution, laws or regulations.”); Association
Agreement between the European Union and the European Atomic Energy Community and their
Member States, of the one part, and the Republic of Moldova, of the other part, Official Journal of the
European Union, No. L 260, 30 August 2014, p. 4, art. 464 (“in accordance with their respective
internal procedures and legislation, as applicable”.) Agreement relating to the implementation of Part
XI of the United Nations Convention on the Law of the Sea of 10 December 1982, United Nations,
Treaty Series, vol. 1836, p. 41, at p. 46, art. 7, para. 2 (“All such States and entities shall apply this
Agreement provisionally in accordance with their national or internal laws and regulations...”).
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Annex B
Reparation to individuals for gross violations of international

human rights law and serious violations of international
humanitarian law
Mr. Claudio Grossman Guiloff
I. Introduction
1. The topic of reparation to individuals for damage caused by gross violations of
international human rights law 1 (“IHRL”) and serious violations of international
humanitarian law2 (“IHL”) has featured increasingly in the practice of States, international
organizations, and international tribunals during recent decades, reflecting the evolving
status of the individual under international law, especially since World War II. 3 However,
the availability of international and domestic forums to address violations of individual
rights has existed in various forms since the early 1900s. 4
2. It is a principle of international law that the breach of an international obligation
involves an obligation to make reparation in an adequate form. 5 In 1928, in the Case
Concerning the Factory at Chorzow (Chorzow Factory Case), the Permanent Court of
International Justice (“PCIJ”) clearly articulated the content of this general obligation,
stating “reparation must, as far as possible, wipe out all the consequences of the illegal act
and re-establish the situation which would, in all probability, have existed if that act had not
been committed.”6
1 The term “gross” violations of IHRL is used to properly narrow the scope of this text, for its content
see Academy Briefing No. 6, What amounts to ‘a serious violation of international human rights
law’? An analysis of practice and expert opinion for the purpose of the 2013 Arms Trade Treaty,
Geneva Academy of International Humanitarian Law and Human Rights, August 2014 at p. 10.
2 The term serious violations and grave breaches of IHL have been used interchangeably; however, the
syllabus employs the term “serious”, among other reasons, to promote consistency with the language
of the General Assembly. See Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law, General Assembly Resolution, UN Doc.
A/RES/60/147, Principle 2(c) (Mar. 21, 2006). Additionally, it aligns the text with the view of the
International Committee of the Red Cross that has explained that “Serious violations of international
humanitarian law are: grave breaches as specified under the four Geneva Conventions of 1949
(Articles 50, 51, 130, 147 of Conventions I, II, III and IV respectively) […],grave breaches as
specified under Additional Protocol I of 1977 (Articles 11 and 85) […], war crimes as specified under
Article 8 of the Rome Statute of the International Criminal Court […], and other war crimes in
international and non-international armed conflicts in customary international humanitarian law […].
See Explanatory Note, What are “serious violations of international humanitarian law”?,
International Committee of the Red Cross, 2012, available at
https://www.icrc.org/en/doc/assets/files/2012/att-what-are-serious-violations-of-ihl-icrc.pdf.
3 Other topics relating to the individual have also been discussed in the work of the International Law
Commission, such as the topics of “State responsibility of internationally wrongful acts,” “Diplomatic
protection,” “Position of the individual in international law,” “Nationality including statelessness,”
and “Protection of persons in the event of disasters.”
4 For instance, the Central American Court of Justice, created in 1907 and recognizing the procedural
capacity of individuals to bring claims against States; the International Prize Court, created in 1907
and allowing individuals to bring claims against foreign States; the Treaty of Versailles of 1919,
which allowed nationals of the Allied and Associated Powers to bring claims against Germany; and
the PCIJ decision in the Case Concerning Jurisdiction of the Courts of Danzig, which declared that
individuals may have the right to bring international claims before national courts.
5 The Case Concerning the Factory at Chorzow, Claim for Indemnity (1927) P.C.I.J. Series A, no. 9,
21.
6 See the Case Concerning the Factory at Chorzow (Germ. V. Pol.), J. (1928) P.C.I.J. Series A, no. 17,
125 (elaborating further that “[r]estitution in kind, or, if this is not possible, payment of a sum
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3. The general rule articulated by the Chorzow Factory Case has been widely cited and
reaffirmed in several judgments of the International Court of Justice (“ICJ”), including the
Case Concerning Armed Activities on the Territory of the Congo. In that judgment, which
dealt with violations of IHL and IHRL, inter alia, the Court recognized that the injury
caused to individuals was relevant in assessing the scope of reparation owed by Uganda. 7
The ICJ has explicitly confirmed that a State that has violated a rule of international law
causing damage to persons has “the obligation to make reparation for the damage caused to
all the natural or legal persons concerned.”8 In the context of Diplomatic Protection, in the
case of Ahmadou Sadio Diallo, the ICJ also stressed the importance of providing reparation
for the injury suffered by Mr. Diallo in breach of international law. 9
4. The practice of States and international organizations, and the case-law of
international tribunals, show that the principle of reparation has been extensively applied in
the fields of IHRL and IHL. Practice reflects that the content and form of reparation has
adjusted to the nature of these specific areas of law. The most relevant sources of practice
include treaty provisions regarding reparation to individuals, the establishment of
permanent or ad hoc procedures open to individuals, and the creation of specific
programmes concerning reparation.
5. Current practice reveals there are three levels enabling individuals to obtain
reparation for violations of IHRL and serious violations of IHL. Opportunity to receive
reparation at the inter-State, international, and domestic levels is discussed below.
6. At the inter-State level, reparation to individuals is sought through the traditional
process of diplomatic protection, a topic that was comprehensively studied by the
International Law Commission (“ILC”) in its Draft Articles on Diplomatic Protection. 10
However, resort to this means of reparation is a right of States. The topic covered by this
syllabus would complement the work of the Commission on the topic of Diplomatic
Protection by focusing on reparation to individuals at the international and domestic levels.
7. Reparation at the international level includes international and regional tribunals as
well as treaty bodies, which allow individuals to bring complaints against States for
violations of IHRL and in certain cases for IHL. Through these mechanisms, individuals
seek an objective finding of wrongdoing and an authoritative statement on the appropriate
reparation that should be issued, either in the form of a judgment, recommendations, or
friendly settlement.11
8. At the domestic level, individuals may bring claims for the violation of IHRL or
IHL before the domestic courts of a State, usually the State allegedly responsible for the
violation. To comply with the relevant rules of international law, domestic mechanisms are
supposed to provide an effective remedy for affected individuals, including appropriate
reparation if the violation is proven. On the other hand, access to international procedures
also needs to comply with certain requirements, such as the exhaustion of local remedies, to
corresponding to the value which a restitution in kind would bear; the award, if need be, of damages
for loss sustained which would not be covered by the restitution in kind or payment in place of it –
such are the principles which should serve to determine the amount of compensation due for an act
contrary to international law”).
7 See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), J., I.C.J. Rep. 2005 (Dec. 19), p. 257, para. 259.
8 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Op., I.C.J. Rep. 2004 (July 9), p. 136, 193–94, 198.
9 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), J. on
Compensation, I.C.J. Rep. 2012 (June 19), p. 324, para. 57; see also Ahmadou Sadio Diallo (Republic
of Guinea v. Democratic Republic of the Congo), J. on Compensation, I.C.J. Rep. 2012 (June 19)
Separate Opinion of J. Cançado Trindade, p. 361, para. 35 (“the reparations are owed by the
responsible State concerned to the individuals victimized”).
10 Draft Articles on Diplomatic Protection, with commentaries, United Nations International Law
Commission, Yearbook of the International Law Commission, 2006, vol. II, Part Two, UN Doc.
A/CN.4/SER.A/2006.
11 See e.g. the friendly settlement process offered by the Inter-American Commission on Human Rights
that allows States and aggrieved individuals the opportunity to find a mutually agreeable solution to a
human rights violation without resorting to a contentious proceeding.
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avoid the misuse of international mechanisms and respect the principle of subsidiarity.
International and domestic mechanisms may complement each other.
9. Important human rights instruments address reparation to individuals for violations
of IHRL by focusing on the right to an effective remedy, a broader concept that
encompasses both access to justice and the issue of reparation. The Universal Declaration
of Human Rights dealt with this matter in article 8, which asserts “[e]veryone has the right
to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law.”
10. Article 2(3) of the International Covenant on Civil and Political Rights also
establishes the right to an effective remedy, and many multilateral conventions addressing
human rights contain similar provisions. Examples include article 6 of the International
Convention on the Elimination of All Forms of Racial Discrimination, article 14 of the
Convention against Torture and other Cruel, Inhuman or Degrading Treatment, and article
24 of the International Convention for the Protection of All Persons from Enforced
Disappearance. The Commission, in its draft articles on Crimes Against Humanity, has also
adopted a provision on reparation owed to individuals, draft article 12, paragraph 3.
11. Regional conventions on human rights also establish the right to an effective remedy
and have regulated the issue of reparation to individuals. Indeed, the American Convention
on Human Rights and the European Convention on Human Rights contain specific
provisions regulating these matters. The international tribunals established to enforce these
conventions have developed several criteria to determine what constitutes full and
appropriate reparation, depending on the circumstances of the case. Other regional
instruments and mechanisms may offer similar guidance, such as the African Charter on
Human and Peoples’ Rights, 12 the Association of Southeast Asian Nations’
Intergovernmental Commission on Human Rights, 13 and the Arab Charter on Human Rights.
12. The decisions of several treaty bodies, such as the Human Rights Committee and the
Committee Against Torture, also provide useful guidance to assess the parameters and
appropriate scope of reparation to be granted, based on the relevant instrument. 14
13. Domestic laws and national judicial decisions are also relevant to this topic to the
extent they may also regulate the issue of reparation owed to individuals for violations of
international law. In this sense, domestic programmes concerning reparation to victims of
IHRL violations are also relevant. These programmes may be built upon the work of “truth
commissions”, used especially in Latin America and Africa.
14. Concerning violations of IHL, one of the main challenges for victims is that there is
not a specialized forum to bring claims against the responsible State. However, victims of
violations of IHL may be able to bring claims for violations of IHRL that occurred in the
context of an armed conflict or emergency situations before competent IHRL mechanisms.
In such instances, these bodies may apply the relevant rules of IHL as the lex specialis.
15. Furthermore, in many peace treaties, the injured State receives a lump sum payment
from the wrongdoing State for the purpose of distributing it among those of its nationals
affected by violations of IHL or other areas of law. Ad hoc bodies have also been created to
decide these kinds of cases, typically in the form of mixed-claims commissions. Recent
examples include the Eritrea-Ethiopia Claims Commission and the United Nations
12 Article 7, paragraph 1 reads, “the right to an appeal to competent national organs against acts of
violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and
customs in force”.
13 See ASEAN Intergovernmental Commission on Human Rights, Human Rights in ASEAN (last
accessed June 2, 2019 at 4:53 PM), available at https://humanrightsinasean.info/asean-
intergovernmental-comission-human-rights/about.html (explaining that although the ASEAN
Intergovernmental Commission on Human Rights’ mandate does not explicitly authorize receipt and
investigation of complaints for human rights violations, the intergovernmental body seems to be
moving in the direction of investigations, based on the fact that six complaints have been accepted
since 2012).
14 The reasoning of these bodies is important to the formation of general principles regarding the
contours of specific human rights, especially in the absence of applicable treaties or domestic law.
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Compensation Commission, a subsidiary organ of the UN Security Council tasked with

deciding claims arising from Iraq’s unlawful invasion of Kuwait, including those brought
by individual persons.
16. This project will examine also the relevant differences existing within the scope of
reparations between IHRL and IHL. This includes inter alia state practice, treaties,
decisions, recommendations by international organizations, courts and various supervisory
organs concerning IHL and IHRL in particular in areas related to emergency situations.
This summary of practice related to reparation to individuals shows not only its increasing
importance, but also the many different ways States and relevant adjudicating bodies have
addressed the issue of reparation to individuals for violations of IHL and IHRL. The
Commission’s consideration of this topic would therefore have a solid foundation in
existing practice in order to provide useful guidance for States and adjudicating bodies, by
distilling general principles, aimed at providing further consistency and legitimacy in this
area.
II. Scope of the topic

17. Considering the different and varied sources of practice available, it could be useful
to provide guidance to States in the field of reparation to individuals for damage caused by
violations of IHRL and IHL. The scope of the proposed topic does not aim to address
primary rules of international law or address which acts constitute violations of
international obligations. Rather, the proposed topic seeks to address secondary rules of
international law, namely, the consequences of violations of primary rules and which
criteria should be considered to provide appropriate reparation to individuals. The
distinction between primary and secondary rules is not alien to the Commission in the area
of State responsibility, in particular the Articles on State Responsibility for Internationally
Wrongful Acts (“Articles on State Responsibility”) which is an essential reference for this
topic, see infra paragraphs 19 and 20. However, when relevant to the topic, the
interconnectedness of primary and secondary rules will be considered.
18. The scope of this topic is limited to reparation owed to individuals, or groups of
individuals,15 for injury caused by violations of IHRL and serious violations of IHL, and
does not address the topic of reparation to corporations or other legal persons. However,
this does not mean that the standards identified by the Commission in the course of its work
on the topic of reparation to individuals in these areas could not be useful to other topics in
the future.16
19. The topic will mainly address the issue of reparation from the perspective of State
responsibility, and will not focus on the responsibility that other actors may have at the
domestic or international level. An essential basis is found in the Articles on State
Responsibility adopted by the Commission in 2001.
20. However, although the Articles on State Responsibility reflect the duty of full
reparation in article 3417, the issue of reparation to individuals was not addressed by the
15 The possibility of collective reparation has been envisaged in the Inter-American System of Human
Rights, for example, in the Case of the Awas Tingni Mayagna (Sumo) Community v. Nicaragua
(Merits, Reparations, and Costs), Inter-American Court of Human Rights (2001), available at
www.corteidh.or.cr/docs/casos/articulos/seriec_79_ing.pdf; see also Rules of Procedure and Evidence
of the International Criminal Court, whose article 97 provides that “the Court may award reparations
on an individualized basis or, where it deems it appropriate, on a collective basis or both”; 2005 Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations
of International Human Rights Law and Serious Violations of International Humanitarian Law, also
recognize the possibility of collective reparation in its paragraph 13.
16 Although the proposed topic is limited to obligations resulting from violations of international human
rights law and serious violations of international humanitarian law, the result of the Commission’s
work on this subject may influence other areas of international law where violations of the rights of
individuals invoke State responsibility to make reparation, such as: international investment law,
international environmental law, and international trade law.
17 See id. at art. 34 (“Full reparation for the injury caused by the internationally wrongful act shall take
the form of restitution, compensation and satisfaction, either singly or in combination, in accordance
with the provisions of this chapter”).
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Commission in that topic. It is important to note that article 33 referred to the content of
State responsibility in paragraph 2 where it explicitly states that Part Two of the Articles is
“without prejudice to any right, arising from the international responsibility of a State,
which may accrue directly to any person or entity other than a State”. Thus, while that topic
did not examine the reparation which may be owed directly to individuals due to violations
of international law, it recognized that Part Two was without prejudice to reparation owed
to individuals. Accordingly, this topic would be complementary to the work undertaken by
the Commission in the Articles on State Responsibility. 18
21. The inclusion of this topic in the programme of work of the Commission would
offer an opportunity for both the codification and the progressive development of
international law. In particular, it would allow the Commission to analyze how the issue of
reparation to individuals has been addressed by States, international organizations, and
international tribunals, as well as the rules and principles they follow to make their
determinations. Accordingly, to pursue its work on the topic, the Commission would have
to examine relevant treaty provisions and rules of customary international law and how
they have been interpreted and implemented in practice. It could also enable the
Commission to identify the best and most accepted methods of reparation to individuals in
order to provide useful guidance to States in this regard. Needless to say, proposals of
progressive development would only have a prospective character, and would not reflect
legal obligations. Moreover, this project concerns secondary rules of law, and would only
address primary rules if required. Accordingly, this topic will not question the principle of
the intertemporal application of the law. It is important to note that the duty of reparation to
individuals, and its scope, is contingent upon the existence of a valid legal rule generating
such duty and its content.
22. A comprehensive analysis would also provide an overview of existing rules, and
help identify the main problems that arise in their implementation, the limitations that
States face in this area, and the different methods States have developed in order to provide
reparation to individuals. In this sense, the outcome of the topic would provide a good
opportunity to codify existing rules, and also make proposals for the progressive
development of the law. The work of the Commission on this topic is without prejudice to
any more favorable legal regimes on reparations established at the national, regional or
international level.
III. Possible issues to be addressed

23. As explained in the foregoing paragraphs, this topic focuses on the secondary rules
related to the provision of reparation to individuals for violations of IHL and IHRL.
Accordingly, the Commission could address, inter alia, the following specific issues:
(a) The different forms of reparation (e.g. restitution, compensation and
satisfaction, guarantees of non-repetition, etc.), their definition, and their main purposes;
(b) The degree of flexibility that States have when choosing between different
forms of reparation;
(c) The appropriateness of certain forms of reparation, depending on the
circumstances;
18 At the Commemoration of the 70th Anniversary of the Commission, the President of the ICJ, Mr.
Abdulqawi Ahmed Yusuf, noted the need to address more comprehensively the situation of the
individual in international law. He recognized that whilst “certain elements of the ILC’s work
recognize the ability of individuals to hold rights under international law, such as Article 33(2) of the
Articles on State Responsibility, the Commission has only acknowledged as recommended practice,
under the Articles on Diplomatic Protection, the important fact that reparation should accrue to an
aggrieved individual in cases where their rights are breached”. See Abdulqawi A. Yusuf, Keynote
Address at the 70th Anniversary of the International Law Commission, Geneva, Switzerland (July 5,
2018), available at
http://legal.un.org/docs/?path=../ilc/sessions/70/pdfs/english/key_note_address_5july2018.pdf&lang=
E.
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(d) The relevant circumstances that should be considered when determining the
kind of reparation to be provided;
(e) The role played by the principle of proportionality in determining the type
and scope of reparation;
(f) The appropriateness of individual and/or collective reparation;
(g) The principle of subsidiarity of international mechanisms and the procedural
obligations of States, for example, the establishment of complaint mechanisms open to
individuals at the domestic level, and the provision of effective procedural guarantees;
(h) The establishment of ad hoc systems of reparation and friendly settlements.
IV. Outcome
24. Concerning the possible outcomes of this topic, the options of presenting the
findings as “draft guidelines” or “draft principles” would be especially appropriate, as this
would allow the Commission to identify and apply existing rules and consider progressive
development, as well as propose best practices in light of the existing challenges.
25. Draft guidelines are appropriate for a non-binding series of rules or recommended
practices. In this context, the Commission has explained that the word “guidelines” is used
when the work on the topic does not intend to produce a binding instrument, but instead, a
toolbox where States may find answers to practical questions.19 Therefore, the use of draft
guidelines in this topic would be appropriate, since it will be aimed at clarifying secondary
rules and also proposing best practices, when appropriate.
26. Draft principles have also been understood by the Commission as encompassing
non-binding provisions, which are also general in character. In this sense, if the
Commission prefers to choose draft principles as the outcome of this topic, it would be
helpful to identify a set of general standards and common norms along with a measure of
progressive elements.
27. Nevertheless, other forms of final outcomes could also be considered depending on
the views of the Commission and also on the suggestions and arguments presented by
States within the Sixth Committee of the General Assembly.
V. Conclusion
28. On the selection of new topics in its long-term programme of work, the Commission
is guided by the following criteria, which it agreed upon at its fiftieth session (1998),
namely that the topic: (a) should reflect the needs of States in respect of the progressive
development and codification of international law; (b) should be at a sufficiently advanced
stage in terms of State practice to permit progressive development and codification; (c)
should be concrete and feasible for progressive development and codification; and (d) that
the Commission should not restrict itself to traditional topics, but could also consider those
that reflect new developments in international law and pressing concerns of the
international community as a whole. 20
29. The topic of reparation to individuals for gross violations of international human
rights law and serious violations of international humanitarian law satisfies the conditions
for the selection of a new topic in the long-term programme of work. As outlined above,
there is considerable State practice and a set of norms and principles that have emerged
through judicial, ad hoc, and treaty bodies. However, there is a need for codification and
progressive development of these practices to provide guidance to the international
community about the principles, content, and procedures related to reparation owed to
individuals for violations of international law. Due to the important amount of State
practice and judicial decisions available, the topic of reparation for individuals for
19 United Nations International Law Commission. “Methods of work”, available at

http://legal.un.org/ilc/methods.shtml (last accessed 30 May 2019).
20 Yearbook of the International Law Commission, 1997, vol. II, Part Two, 72, para. 238.
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violations of international law is ripe and appropriate for progressive development and
codification.
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Lagrand (Germany v. United States of America) (Judgment) [2001] ICJ Reports 466.
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on 21 Nov. 1995 and Paris, signed on 14 Dec. 1995, Annex 7, Agreement on Refugees and
Displaced Persons.
Geneva Conventions of Aug. 12, 1949, Additional Protocol I (June 8, 1977).
Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or
Degrading Treatment or Punishment in Africa (Robben Island Guidelines) (2002),
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Hague Convention IV, Convention Respecting the Laws and Customs of War on Land,
(Oct. 18, 1907).
Hague Convention XII, Convention Relative to the Creation of an International Prize Court,
(Oct. 18, 1907).
International Committee of the Red Cross. “Rules of Customary International Law,” Rule
150 (2005), available at https://ihl-databases.icrc.org/customary-
ihl/eng/docs/v1_rul_rule150.
International Law Association, ‘Resolution No 2/2010 on Reparation for Victims of Armed
Conflict’. http://www.ila-hq.org/en/committees/index.cfm/cid/1018 (2 February 2013).
Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the
African Court on Human and Peoples’ Rights, entered into force Jan. 25, 2004.
UNGA Res 60/147 ‘Basic Principles and Guidelines on the Right to a Remedy and
Violations of International Humanitarian Law’ (16 December 2005) GAOR 60th Session
Supp 49 Vol 1, 354.
“Draft Articles on Crimes Against Humanity, with commentaries,” A/72/10 (2017).
“Draft Articles on Diplomatic Protection,” GAOR 58th Session, UN Doc. A/61/10, p. 16
(2006).
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A/CN.4/SER.A/2006/Add.1 (Part 2).
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Annex C
Prevention and repression of piracy and armed robbery at

sea
Mr. Yacouba Cissé
I. Introduction
1. Maritime piracy is generally understood to be acts of violence, detention or
depredation committed for private ends by the crew or passengers of a private ship against
another ship, including its persons or property on the high seas. 1 Maritime piracy began in
antiquity and since the advent of the Law of Nations, has been regarded as an international
crime. Indeed, it can be said that piracy at sea is as old as maritime navigation itself.2
2. Unfortunately, today maritime piracy is resurging at a rate without precedent in
history as exemplified by maritime piracy committed in Indian Ocean off the coast of
Somalia, the Gulf of Guinea, the Singapore and Malacca Straits, the Arabian Peninsula,
Caribbean, Celebes, Java, North Yellow, and South China Seas, and the Bay of Bengal. 3
Far from being a replica of the past, piracy has reappeared in new forms that are more
violent, as pirates are now better organised, better equipped and more heavily armed.4 In its
Report of October 19975 on Oceans and the Law of the Sea, the Secretary-General of the
United Nations alerted the International Community on the gravity of piracy and armed
Robbery at sea. Such robbery and criminal violence come with a plethora of other
associated illicit acts, such as maritime terrorism, 6 corruption, money laundering, violation
of international human rights law, illegal fishing, and the unlawful release of waste and
toxic substances in the seas and oceans, human and drugs trafficking, etc.7
3. As such, maritime piracy is now a major concern of the international community as
a whole, as acts of piracy are committed in all maritime zones and affect to various degrees
the interests of all states, whether coastal or landlocked.8 From a standpoint of the wealth
and development of States, it is worth noting that 85% of commerce transits through
maritime routes, 9 many of which are threatened by piracy. Consequently, Flag States,
1 See United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 [UNCLOS],
at Arts 100–107.
2 Jane G Dalton, J Ashely Roach & John Daley, “Introductory Note to United Nations Security
Council: Piracy and Armed Robbery at Sea – Resolutions 1816, 1846 & 1851” (2009) 48 ILM 129 at
129; Alfred P Rubin, “The Law of Piracy” (1987) 15:2-3 Denver Journal of International Law and
Policy 173.
3 C Paul Hallwood & Thomas J Miceli. Maritime Piracy and Its Control: An Economic Analysis (New
York: Palgrave Macmillan, 2015) at 3-4; ICC International Maritime Bureau, Piracy and Armed
Robbery Against Ships: Report for the Period 1 January – 31 December 2018, London, January 2019.
4 Jennifer C Bulkeley, “Regional Cooperation on Maritime Piracy: A Prelude to Greater
Multilateralism in Asia?”, (2003) 14 Journal of Public and International Affairs, Article 2 at 3;
Masataka Okano, “Is International Law Effective in the Fight against Piracy: Lessons from Somalia”
(2010) 53 Japanese Yearbook of International Law 178 at 179-81; Yvonne M Dutton, “Maritime
piracy and the impunity gap: insufficient national laws or a lack of political will” (2012) 85:5 Tulane
Law Review 1111 at 1127–30.
5 Secretary-General, Report on Oceans and the Law of The Sea: Law of the Sea, UNGAOR, 52nd Sess,
UN Doc A/52/487 (1997) at para 374.
6 Monica Pathak, “Maritime Violence, Piracy at Sea & Marine Terrorism Today” (2005) 20 Windsor
Review of Legal and Social Issues 65.
7 Hugh R Williamson, “New Thinking in the Fight against Marine Piracy: Financing and Plunder Pre-
Empting Piracy before Prevention Becomes Necessary” (2013) 46 Case Western Reserve Journal of
International Law 335; S Whitman & C Saurez, “Dalhousie Marine Piracy Project: The Root Causes
and True Costs of Marine Piracy” (2012) Marine Affairs Program Technical Report #1.
8 UNSCOR, 67th year, 6727th Mtg, UN Doc S/RES/2039 (2012) at Preamble.
9 D Ortolland & J-P Pirot, eds, Atlas géopolitique des espaces maritimes : frontières, énergie, pêche et
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Coastal States, Port States and other States are attempting to fight all forms of maritime
piracy across the oceans, so as to protect human lives, to protect economic interests, to
preserve freedom of navigation, and to preserve the marine environment against unlawful
marine pollution and other unlawful acts at sea.
4. Piracy at Sea is typically directed against private vessels and therefore has
significant effects upon private actors.10 Crew members of an attacked vessel are at risk of
prolonged detention,11 bodily harm or death. Ship owners are exposed to large ransoms12 to
obtain the release from pirates of their crew, cargo and ship. Maritime insurance companies
must take account of the possibility of maritime piracy, thereby increasing the overall cost
of maritime transport and introducing in maritime contracts piracy clauses.13 Piracy is also a
source of concern for coastal communities and international organizations. 14 One solution
found appropriate under these circumstances, was to involve private companies to help
combating piracy despite the controversy surrounding this approach and its legal basis in
international law.
5. The human and economic impacts of piracy are indeed far from negligible. In 2010,
26% of piracy victims were taken hostage – representing 1181 out of a total of 4185 victims
– and 59% of hostages faced increased levels of violence. 15 Economic costs for piracy acts
in Somalia only are estimated at between US$1 billion and US$16 billion; they include the
cost of fuel due to rerouting, an increase in insurance cost of US$20,000 per trip, reduced
availability of tankers, and increased charter rates. 16 Additionally, ransoms paid by the
owner(s) of a ship to pirates have been between US$500,000 and US$5.5 million, resulting
in an estimated total of $US160 million paid in ransom for Gulf of Aden piracy acts only. 17
Approximately, 10 hijackings of ships decrease export between Asia and Europe by 11%,
which results in costs of US$28 billion.18 While precise statistics on fishers are difficult to
find, they suffer a disproportionate amount of attacks (usually to steal valuable catches and
equipment) resulting in thousands of US$ of costs per fisher and millions for each affected
regions.19 Finally, the annual estimated cost for security measures implemented by EU and
NATO ant-piracy navies is of US$1.15 billion, and of US$4.7 billion for private anti-piracy
measures.20
6. Modern pirates operate from landward bases, spending much less time at sea than
pirates of the past. 21 “Their usual strategy is to undertake quick raids in small boats
launched from mother ships that were themselves pirated and then return to onshore
environnement (Paris : Technip, 2008).

10 Storny-Annika Mildner & Franziska Grob, “Piracy and World Trade: The Economic Costs” in Stefan
Mair, ed, Piracy and Maritime Security: Regional characteristics and political, military, legal and
economic implications, SWP Research Paper, (German Institute for International and Security
Affairs: Berlin, 2011) at 26–28.
11 Ibid. at 12.
12 Hallwood and Miceli. Maritime Piracy and Its Control, supra note 3 at 5–6.
13 See R Wright, “Piracy set to escalate shipping costs”, Financial Times, 20 November 2008;
Christopher N Douse, “Combating Risk on the High Sea: An Analysis of the Effects of Modern
Piratical Acts on the Marine Insurance Industry” (2010) 35 Tulane Maritime Law Journal 267 at 278–
81.
14 See José Louis Jesus, “International Tribunal for the Law of the Sea” in Jon M Van Dyke et al., eds,
Governing Ocean Resources: New Challenges and Emerging Regime (Leiden: Martinus Nijhoff,
2013) 25 at 26.
15 Torben C Skaanild, “Piracy: Armed Robbery, Kidnapping, Torture and Murder at Sea” in Maximo Q
Mejia, Chie Kojima & Mark Sawyer, eds, Piracy at Sea (New York: Springer, 2013) 23 at 24;
Hallwood & Miceli, Maritime Piracy and Its Control, supra note 3 at 4; Whitman & Saurez.
“Dalhousie Marine Piracy Project” supra note 7 at 70.
16 Hallwood & Miceli, Maritime Piracy and Its Control, ibid. at 5.
17 Hallwood & Miceli, Maritime Piracy and Its Control, ibid. at 5–6; Whitman & Saurez, “Dalhousie
Marine Piracy Project” supra note 7 at 57.
18 Hallwood & Miceli, Maritime Piracy and Its Control, ibid. at 6; Whitman & Saurez, “Dalhousie
Marine Piracy Project” ibid. at 58.
19 Whitman & Saurez, “Dalhousie Marine Piracy Project” ibid. at 59–61.
20 Hallwood & Miceli, Maritime Piracy and Its Control, supra note 3 at 6.
21 Hallwood & Miceli, Maritime Piracy and Its Control, ibid. at 15.
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sanctuaries where they receive protection from local clans and their militias.”22 This land-
based protection makes the detection of pirates very difficult and the success of pirates
often depends on the effectiveness of this protection. Harbouring and protecting pirates
often brings in lucrative revenues, but risky revenues, and it is hypothesized that coastal
communities will make this choice when other forms of revenues are unavailable or
minimal.23 Modern day pirates do not possess complex organisational structures, in a sense
that they are usually led by a single leader who demands absolute loyalty from their
subordinates, and finance themselves by integrating their activities into local economies. 24
7. There is considerable international law relating to maritime piracy, beginning with
State practice that over time developed extensive customary international law in this area.
Based on such custom and most importantly the Harvard Research Draft on piracy, 25 the
International Law Commission developed as part of its work on the law of the sea 26 a series
of provisions concerning piracy which ultimately became Articles 14 to 21 of the Geneva
Convention on the High Seas,27 which in turn later served as the basis for Articles 100 to
107 of the United Nations Convention on the Law of the Sea 28 (UNCLOS). Additional
conventional law has been developed on the global level, principally under the auspices of
the International Maritime Organisation, such as the 1988 Convention for the Suppression
of Unlawful Acts Against the Safety of Maritime Navigation29 (SUA Convention), and its
Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms
located on the Continental Shelf30 (and further 2005 Protocols). Other global treaties not
specific to piracy may also be relevant, such as the 1979 International Convention against
the Taking of Hostages31 and Convention of the Safety of Life at Sea (SOLAS Convention
1974), the Convention Against Transnational Organized Crime, the International Ship and
Port Facility Security Code (ISPS), etc.
8. There are also numerous treaties and instruments developed at the regional and sub-
regional level. Such as the 2004 Regional Cooperation Agreement on Combating Piracy
and Armed Robbery against Ships in Asia 32 (RECAAP) to which 16 Asian States are
party.33 Many States have developed national laws34 addressing maritime piracy, which has
led to important jurisprudence in national courts 35 and good deal of success in the
prevention and repression of piracy in certain regions. 36 Other subsequent sub-regional
22 Ibid.
23 Ibid. at 16.
24 Ibid. at 16–18.
25 Committee of Experts for the Progressive Codification of International Law, “Codification of
International Law: Part IV: Piracy” (1932) 26 American Journal of International Law Supplement
739.
26 International Law Commission, Report of the International Law Commission on the Work of its
Eighth Session, UNGAOR, 11th Sess, Supp No 9, UN Doc A/3159 (1956) at 282.
27 Convention on the High Seas, 29 April 1958, 450 UNTS 11.
28 UNCLOS, supra note 1.
29 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 10
March 1988, 1678 UNTS 221.
30 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms located on the
Continental Shelf, 10 March 1988, 1678 UNTS 304.
31 International Convention against the Taking of Hostages, 17 December 1979, 1326 UNTS 205.
32 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, 29
November 2006, 2398 UNTS 199.
33 See Brice Martin-Castex & Guillaume Loonis-Quélen, “L’Organisation maritime internationale et la
piraterie ou le vol à main armée en mer : le cas de la Somalie” (2008) 54 Annuaire français de droit
international 77 at 86. This Agreement was adopted under Japan’s initiative and to which the
following States are parties; Bangladesh, Brunei Darussalam; Cambodia, Japan, China, India, South
Korea, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Sri Lanka, Thailand and
Vietnam.
34 See United Nations Division for Ocean Affairs and the Law of the Sea, Piracy Under International
Law, online: <https://www.un.org/depts/los/piracy/piracy.htm>.
35 See Selected Bibliography of this topic; point 4 relates to National Court Decisions.
36 G Noakes, “Statement on International Piracy” before the US House of Representative Committee on
Transportation and Infrastructure’s Subcommittee on Coast Guard and Maritime Transportation”,
February 2009, online: <www.marad.dot.gov/documents/HOA_Testimony-Giles%20Noakes-
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cooperation have been created to fight against piracy, notably the Code of Conduct of
Djibouti adopted in 2009 under the auspices of the International Maritime Organization
(IMO) entitled “Code of Conduct Concerning the Repression of Piracy and Armed Robbery
Against Ships in the Western Indian Ocean and the gulf of Aden”37 to which 9 States are
parties: Djibouti, Ethiopia, Kenya, Madagascar, Maldives, Seychelles; Somalia, United
Republic of Tanzania and Yemen. A second Code of Conduct has been adopted in 2013 in
Cameroon dealing with piracy in Western and Central Africa of the Gulf of Guinea called
“Code of Conduct Concerning the Repression of Piracy, Armed Robbery against Ships, and
illicit Maritime Activity in West and Central Africa”38 (Gulf of Guinea Code of Conduct
covering Economic Community of West African States (ECOWAS) and Economic
Community of Central African States (ECCAS)). A study indicated that “in the first half of
2018, over 40% of all reported pirate attacks in the world occurred in the Gulf of Guinea”.39
9. Further, the Security Council, faced with the gravity of maritime piracy, and acting
under Chapter VII of the United Nations Charter, has adopted a series of resolutions 40
addressing maritime piracy committed off the coast of Somalia and in the Gulf of Guinea,
as well as in several seas such as the Gulf of Aden, the Straits of Malacca and Singapore,
and in the Caribbean Sea.
10. Nevertheless, despite the extensive amount of international, regional and national
law, there remain important issues of international law that are uncertain or underdeveloped,
which could benefit from study, codification, and progressive development by the
International Law Commission.
11. The Commission should begin by noting that the core aspects of the topic of
maritime piracy has already been codified, notably by the Convention on the Law of the Sea
of 1982, by SUA Convention, and by other treaties. The Commission’s objective would not
be to seek to alter any of the rules set forth in existing treaties, but would include whether
and how States might best implement their treaty obligations.
II. Current Issues of International Law Relevant to Piracy and Armed Robbery at Sea
A. Prevention of Piracy at Sea: A requirement for cooperation

12. Ideally, in their implementation of these obligations, the conditions by which piracy
flourishes would be addressed by States, so as to minimise the ability of pirates to operate
on the seas. The Commission might analyse methods of prevention that have operated
successfully in other areas of international law so as to provide guidance to States on how
to implement these obligations of prevention.
B. Repression of Piracy at Sea: A requirement for Laws and Regulations in place and
Clarification of Universal Criminal Jurisdiction with Respect to Piracy at Sea
13. Prevention, of course, is not always possible, and acts of piracy will continue to
occur, raising issues relating to punishment of persons for committing such acts. Piracy has
BIMCO.pdf>.
37 “Code of Conduct Concerning the Repression of Piracy and Armed Robbery Against Ships in the
Western Indian Ocean and the gulf of Aden”, IMO Council 102nd Sess, Attachment 1, Doc C 102/14
(2009).
38 Code of Conduct Concerning the Repression of Piracy, Armed Robbery against Ships, and illicit
Maritime Activity in West and Central Africa, 25 June 2013, Yaoundé, Cameroon, online:
<http://www.imo.org/en/OurWork/Security/WestAfrica/Documents/code_of_conduct%20signed%20f
rom%20ECOECO%20site.pdf>.
39 Ministries of Foreign Affairs, of Industry, of Justice and of Defence of Denmark, Priority Paper for
the Danish efforts to Combat Piracy and Other Types of Maritime Crime 2019–2022, at 6.
40 UNSC Resolutions on piracy: S/RES/1816 (2008), 6 November 2008; S/RES/1838 (2008), 7 October
2008; S/RES/1846 (2008), 2 December 2008; S/RES/1851 (2008), 16 December 2008; S/RES/1897
(2009), 30 November 2009; S/RES/1918 (2010), 23 April 2010; S/RES/1950 (2010), 23 November
2010; S/RES/1976 (2011), 11 April 2011; S/RES/2015 (2011), 24 October 2011; S/RES/2020 (2011),
22 November 2011; S/RES/2018 (2011), 31 October 2011; S/RES/2020 (2011), 22 November 2011;
S/RES/2039 (2012), 29 February 2012; S/RES/2077 (2012), 21 November 2012; S/RES/2125 (2013),
18 November 2013; S/RES/2383 (2017), 7 November 2017.
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long been regarded as a crime punishable by any State even if that State has no direct
connection to the pirates, to their victims, or to the location of the criminal act. Indeed,
pirates have long been considered the enemies of all States and of all humanity (hostis
humani generis). As such, exercise of national jurisdiction over pirates by any State has
long been recognized as the first form of universal criminal jurisdiction, allowing pirates no
refuge in any State regardless of their connection to it.41
14. Even so, the exact parameters of such universal criminal jurisdiction with respect to
piracy are not well understood. The definition of piracy as set forth in the 1982 Law of the
Sea Convention might be analysed by the Commission to help States understand the
meaning of “piracy” when establishing and exercising national criminal jurisdiction.
Further, whether States have a duty to establish such jurisdiction under either conventional
or customary international law could be assessed, as opposed to whether States are simply
permitted under international law to establish such jurisdiction if they chose to do so.
C. Adoption and Harmonisation of National Criminal Laws on Piracy at Sea

15. In light of the conclusions reached with respect to Section B above, consideration
might be given to the specific measures States should or may take within their national
criminal law so as to establish and exercise jurisdiction over persons alleged to have
committed maritime piracy. Such measures may assist promoting the adoption of and
harmonisation of national laws of States in this area, thereby allowing for a more effective
global regime of enforcement and for greater inter-State cooperation in this area.
16. Some States may be able to exercise national criminal jurisdiction based solely on
ratification of the 1958 or 1982 Conventions and perhaps even based solely on customary
international law. 42 Yet in most jurisdictions, it seems likely that such bases would be
insufficient, requiring instead the enactment of national statutes criminalising piracy. This
requirement for national statutes may be driven by the principle nullem crimen, nulla poena,
sine lege, which means no crime and no penalty without a law in place.43 The resurgence of
violent maritime piracy criminal acts in 2008 off the coast of Somalia in the Indian Ocean
and in the Gulf of Guinea bordering the Atlantic Ocean demonstrated that many States from
all continents did not have any national legislation dealing with piracy.44 One example is
that of France in Ponant case.45 After capturing Somalian pirates, France had to release
them because, at the time, it did not possess national law creating criminal offences for
piracy, and general criminal law was insufficient to render piracy acts justiciable in a
criminal court in France. Yet France was not alone in this regard. Currently, a majority of
African States also do not have legislation on piracy or have laws that are outdated in
relation to contemporary international law on this matter.46
17. Thus the existence of general criminal law for some States may not be sufficient to
prosecute and repress piracy offences. Rather, specific legislation on piracy offences or at
least a general reference to maritime piracy in general criminal provisions may be needed to
ensure that criminal procedures are available for prosecuting pirates. Furthermore, national
prosecutors and judges often do not possess the requisite technical and legal knowledge to
effectively deal with this crime, which is unique and may require special guidance for
understanding the elements to be proved for the crime and the types of evidence necessary
41 Sandra L Hodgkinson, “The Governing International Law on Maritime Piracy” in Michael P Scharf,
Michael A Newton & Milena Sterio, eds, Prosecuting Maritime Piracy: Domestic Solutions to
International Crimes (Cambridge: Cambridge University Press, 2015) 13 at 15–17; Malcolm D Evans
& Sofia Galani, “Piracy and the Development of International Law” in Panos Koutrakos & Achilles
Skordas, eds, The Law and Practice of Piracy at Sea: European and International Perspectives
(London: Hart Publishing, 2014) 343 at 344–45.
42 Dutton, “Maritime piracy and the impunity gap” supra note 4 at 1143–44.
43 Ibid. at 1152.
44 Ibid. at 1116.
45 Mahinga, Jean-Grégoire, “L’affaire du Ponant” (2008) 7 Revue de droit des transports 10; Philippe
Chapleau & JeanPaul Pancracio, La piraterie maritime : Droit, pratiques et enjeux (Paris: Vuibert,
2014) at 106–107.
46 United Nations Division for Ocean Affairs and the Law of the Sea. National Legislation on Piracy.
online: <https://www.un.org/depts/los/piracy/piracy_national_legislation.htm>.
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to meet those elements.47 Even though the ratification of the Convention on the Law of the
Sea represents the clearest expression of states’ consent to be bound by international law
and is a necessary legal act, it is insufficient for the effective enforcement of states’
obligations. This observation is equally applicable to customary international law related to
piracy and to the Convention on the High Seas which is still in force for six states. In other
words, a state cannot legally repress piracy acts by simply relying on the fact that it is a
state party to one of the two relevant conventions or on customary international law. Even
if international law has already defined the legal framework to combat piracy, states’
national laws are needed for the criminalisation of piracy.48
18. In addition to the lack of national legislation and the obsolescence of certain national
laws on piracy, there is the issue of harmonisation of piracy law. Some States’ national
laws link maritime piracy only to acts committed on the high seas, while others link it only
to acts within the States’ territorial sea or exclusive economic zone.49 Ideally, States would
have the same or similar laws addressing piracy in all areas outside the territorial seas.
D. Clarifying the relationship of Maritime Piracy to Armed Robbery at Sea 50

19. A further issue, though related to Section C above, concerns analysing and helping
to clarify the difference between maritime piracy as a crime and armed robbery at sea as a
different crime. As a general matter, maritime piracy is a crime that has emerged in relation
to the high seas (including what is now regarded as the exclusive economic zone). 51 By
contrast, the crime of armed robbery at sea occurs within a States territorial sea.52
20. It appears that many States have both types of crime, but are not clear in their
national laws as to the distinction between the two offences and, in particular, with respect
to the location of the offences.53 As such, a problem of “double incrimination” may arise,
creating confusion regarding the applicable law. Based on international law and States
practice, the Commission might analyse when these respective offences should apply, how
they differ, and whether they are linked, as a means of clarifying the law in this area, which
may be of value to States when developing national laws and exercising national
jurisdiction.
III. Scope of the topic

21. State actions at sea, whether unilateral or multilateral, are limited in their ability to
deal comprehensively and efficiently with maritime piracy, leaving private vessels
vulnerable. That vulnerability has led ship owners to pursue their own maritime security
often through contracts with security companies. Such private maritime security may
consist of having armed security personnel on the private vessel, who may exercise lethal
action when approached by other vessels. This phenomenon, in term of preventive
measures, raises the questions of whether international law requires or should require the
flag State, the State where the security company is incorporated, or other States to regulate
such actions.54 Private vessels are not authorized under the 1982 Convention to engage in
hot pursuit. Thus, a private ship that is the victim of piracy has no recourse to undertake
47 See for e.g. Brian Wilson, “Reshaping maritime security cooperation: the importance of interagency
coordination at the national level” in Guilfoyle, Douglas, ed, Modern Piracy: Legal Challenges and
Responses (Cheltenham, UK: Edward Elgar, 2013) 202.
48 Anna Petrig & Robin Geiß, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-
Piracy Operations in Somalia and the Gulf of Aden (Oxford: Oxford University Press, 2011) at 140–
44.
49 United Nations Division for Ocean Affairs and the Law of the Sea, supra note 46.
50 Melda Kamil Ariadno, “Maritime Security in South East Asia: Indonesian Perspective” (2009) 7:1
Indonesian Journal of International Law 88 at 95.
51 UNCLOS, supra note 1 at Arts 58 & 101; Anna Petrig, “Piracy” in Donald Rothwell et al, eds, The
Oxford handbook of the law of the sea (Oxford: Oxford University Press, 2016) 844 at 848–49.
52 Petrig, “Piracy” ibid. at 851–52.
53 United Nations Division for Ocean Affairs and the Law of the Sea, supra note 46.
54 Ilja Van Hespen, “Protecting merchant ships from maritime piracy by privately contracted armed
security personnel: a comparative analysis of flag state legislation and port and coastal state
requirements” (2014) 45:3 Journal of Maritime Law and Commerce 361.
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enforcement action under the law of law of the sea. The Commission might consider the
law and practice in this area to see if private vessels are prohibited from engaging in such
action by international law and, if so, the line between such actions and defensive acts when
attacked by maritime pirates.
22. The 1982 Convention on the law of the Sea allows exclusively pursuit against pirates
by public vessels, such as military vessels and other vessels owned by the State and
accomplishing a public service. 55 The Commission might analyse the operation of such
rules in the context of piracy and armed robbery at sea based on contemporary State
practice, and consider whether the rules set forth in the 1982 Convention in this regard have
the status of customary international law, binding upon all States.
23. In fact, pirates committing crimes in the high seas know that by staying in the high
seas or the exclusive economic zone, they may be pursued and captured by any state on the
basis of universal criminal jurisdiction. To avoid that situation, they typically will quickly
move, after an act of piracy, to the nearest territorial sea of a State to escape pursuit by
foreign vessels. Moreover, the fact that many States do not have the capacity to control
their territorial sea encourages pirates to move their operations in these waters by raiding
and attacking ships waiting their turn to enter a port.56
24. It was to solve this issue that the Security Council, on an exceptional basis,
authorised foreign naval forces to engage in pursuing into the Somalian territorial sea from
the adjacent high seas and exclusive economic zone for the purpose of capturing pirate
vessels. Moreover, the Council also authorized foreign naval vessels, with the consent of
the Government of Somalia, to enter into Somalia’s territorial sea for the purpose of
capturing pirate vessels. In the same time, the Security Council made it clear that “the
provisions of this resolution apply only with respect to the situation in Somalia and do not
affect the rights and obligations or responsibilities of Member States under international
law”,57 which means that these provisions should be enforced under the legal framework of
the fight against piracy as established by the 1982 Convention on the law of the Sea 58 and
rules of customary international law.
25. With respect to the Rights of Alleged Offenders, persons who are alleged to have
committed maritime piracy are entitled to fair treatment, including a fair trial, and full
protection of his or her rights under national and international law as demonstrated by case
law through domestic courts’ decisions and international courts’ rulings dealing with
pirates’ prosecution.59
26. The operation of such rights in context of seizure of the person on the high seas and
hence outside the sovereign jurisdiction of any State might be analysed so as to clarify how
such rights operate in this context.
27. The scope of this topic is limited to the prevention and repression of piracy and
armed robbery at sea. The topic will address the following issues: the definition of piracy in
the context of United Nations Convention on the Law of the Sea provisions and taking into
account the current and evolving aspects of piracy, as well as the definition provided by
relevant international organizations such as the International Maritime Organization. Other
elements to be addressed include: the punishment of piracy, the cooperation in the
suppression of piracy, the exercise of jurisdiction over the crime of piracy, including issues
on criminalization, pursuit, arrest, detention, extradition, transfer agreement of suspected
pirates, mutual legal assistance, prosecution, investigation, evidence, sentences, rights of
alleged pirates, rights of victims of piracy and armed robbery at sea, etc.
55 UNCLOS, supra note 1 at Art 111.

56 Joseph M Isanga, “Countering Persistent Contemporary Sea Piracy: Expanding Jurisdictional
Regimes” (2010) 59 American University Law Review 1267 at 1273.
57 UNSCOR, 66th Year, 6635th Mtg, UN Doc S/RES/2015 (2011) at Preamble.
58 UNSCOR, 63rd Year, 5902nd Mtg, UN Doc S/RES/1816 (2008) at Preamble.
59 Douglas Guilfoyle, “Counter-Piracy Law Enforcement and Human Rights” (2010) 59:1 International
and Comparative Law Quarterly 141; see also point 4 of the Selected Bibliography.
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IV. The topic satisfies the requirements for addition to the Long-term Programme of
Work of the International Law Commission
28. For a topic to be included on the ILC’s long-term programme of work, it must be
demonstrated that it satisfies the following criteria: a) the topic must reflect the needs of
States in respect of the progressive development and codification of international law; b)
the topic should be at a sufficiently advanced stage in terms of state practice to permit
progressive development and codification; c) the topic should be concrete and feasible for
progressive development and codification; and d) the Commission should not restrict itself
to traditional topics, but could also consider those that reflect new developments in
international law and pressing concerns of the international community as a whole. 60
29. The topic of piracy and Armed Robbery at Sea responds to the criteria needed for its
inclusion in the long term program of work of the Commission.
30. First: this topic responds to the needs of states to progressively develop this area of
international law. In fact, the interest in this topic is global since, as shown in the
introductory section of this syllabus, it concerns the whole of the international community.
The global nature of this concern has justified the adoption of several resolutions by the
General Assembly and the Security Council of the United Nations on combating maritime
piracy and armed robbery at sea. Coastal states, flag states, port states, states whose
nationals have been victims of maritime piracy or armed robbery at sea, landlocked states,
private maritime industry actors (ship owner, shipper, maritime insurer, etc.) whether they
are loaders, receivers, importers or exporters of merchandises, international organisations,
all have an interest that the seas be free of all safety concerns and criminality to ensure the
development of states, and the security and socio-economic wellbeing of all people.
31. Second: the topic deserves to be considered by the Commission since there is State
practice that lends itself to the codification and progressive development of international
law in respect of the topic. As indicated above, there are global and regional treaties and
other instruments that may be analysed in relation to this topic. Further, according to the
data provided by the Secretariat of the Ocean Affairs and Law of the Sea Division of the
United Nations, there are more than 70 states that have adopted legislation for the
prevention and repression of piracy and armed robbery at sea. This practice is sufficiently
advanced at this stage and will develop further as additional proposed bills on piracy
progressively become applicable laws. On this point, several African coastal states have
tabled bills in their respective Parliaments which should be adopted in the near future.
Generally, the available legislation on the topic represents the main region of the worlds
and the main legal systems as they originate from Africa, Europe, Asia, the Americas and
the Caribbean.
32. Third: the topic deserves to be analysed in light of the applicable law while keeping
in mind its concrete, practical and feasible nature. The topic will not pose any particular
difficulties as the majority of the work will involve existing international law: the lex lata
codified by the 1982 Convention on the Law of the Sea that defines the legal regime and the
framework for piracy and armed robbery at sea. In addition to the existing and still
developing state practice, we can rely on other universal legal instruments such as the
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,
and the relevant resolutions of the International Maritime Organisation on piracy and armed
robbery at sea adopted between 2005 and 2012. There is an abundance of scholarly writings
(see Selected Bibliography below) and national jurisprudence (American, English, French,
Spanish, Tanzanian, Kenyan, Seychellois, European through the European Court of Human
Rights, Japanese, Korean, etc) on the topic. These judicial domestics decisions will be
analysed in light of applicable national laws and of the relevant international law they
implement. The various regional approaches on maritime piracy and armed robbery at sea
in the different seas of the world will be analysed taking in account the particular
60 See International Law Commission, Report of the International Law Commission on the work of its
fiftieth session, UNGAOR, 53rd Sess, Supp No 10, UN Doc A/53/10 (1998) at para 553; International
Law Commission, Report of the International Law Commission on the work of its sixty-ninth session,
UNGAOR, 72nd Sess, Supplement No 10, UN Doc A/72/10 (2017) at para 32.
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geographical context of each maritime region and regional sea as defined by the Regional
Seas Programme of the United Nations Environment Programme (UNEP).
33. Fourth: International law relating to piracy and armed robbery at sea falls squarely
within the scope of topics traditionally taken up by the Commission, which has long had a
history of addressing rules relating to the law of the sea. As such, inclusion of this topic in
the long-term program of work should not, in principle, pose any problems due to the fact
that this topic is a pressing concern of the international community as a whole.
V. Methodology
34. The point of departure of this study will be UNCLOS Provisions relating to piracy at
sea. Therefore, the purpose when taking up this subject, as indicated above, is not to alter
whatsoever these provisions. Further, aspects of this topic not directly regulated by such
treaties would be analysed, using other instruments and State practice in this area, so as to
further codify or progressively develop international law in a manner that may be helpful to
States. The analysed state practice, whether it is legislation or domestic court decisions, will
be that of all States with a potential or real interest in the protection of the oceans against
piracy and armed robbery at sea. These include coastal States, flag States, port States,
landlocked States, States that are susceptible of exercising their active or passive
jurisdiction regarding nationals that are victims of perpetrators of piracy acts, and other
relevant actors and international organisations.
VI. Form of the outcome

35. The objective of this topic could be to develop draft articles on the prevention and
repression of piracy and armed robbery at sea. As the topic unfolds, it may become clearer
whether the topic is an appropriate one for the development of new convention, in which
case draft articles would remain the proper form for the Commission’s work. If, however, it
becomes apparent that the topic is best developed simply as guidance to States with respect
to implementation of existing international obligations, then the outcome might be changed
to “conclusion” or “guidelines”.
VII. Selected Bibliography
1. Articles
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Anderson, Elliot A. 2010. “It’s a Pirate’s Life for Some: The Development of an Illegal
Industry in Response to an Unjust Global Power Dynamic.” Indiana Journal of Global
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Ariadno, Melda Kamil. 2009. “Maritime Security in South East Asia: Indonesian
Perspective.” Indonesian Journal of International Law 7(1): 88–99.
Azubuike, Lawrence. 2010. “International Law Regime against Piracy.” Annual Survey of
International & Comparative Law 15: 43–60.
Bahar, Michael. 2007. “Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory
for Naval Anti-Piracy Operations.” Vanderbilt Journal of Transnational Law 40(1): 1–86.
Baird, Rachel. 2012. “Transnational Security Issues in the Asian Maritime Environment:
Responding to Maritime Piracy.” Australian Journal of International Affairs 66(5): 501–13.
Balmond, Louis, Sylvain Alunni and Fabien Grech. 2011. “Chronique des faits
internationaux : 15 mars-15 juin 2011.” Revue générale de droit international public
2011(3): 733–64.
Barrios, Erik. 2005. “Casting a Wider Net : Addressing the Maritime Piracy Problem in
Southeast Asia.” Boston College International and Comparative Law Review 28(1): 149–
63.
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Beckman, Robert C. 2002. “Combating Piracy and Armed Robbery Against Ships in
Southeast Asia : The Way Forward.” Ocean Development & International Law 33(3): 317–
41.
Behr, Timo, Mika Aaltola, and Erik Brattberg. 2013. “Maritime Security in a Multipolar
World: Towards an EU Strategy for the Maritime Commons.” Finnish Institute of
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Bellamy, Chris. 2011. “Maritime Piracy. Return of the World’s Second-Oldest Security
Problem.” The RUSI Journal 156(6): 78–83.
Bellayer-Roille, Alexandra. 2009. “Montée en puissance de la lutte contre la ‘piraterie’
maritime ‘sus a l’hostis humani generis’.” Annuaire de droit maritime et océanique 27:
309–31.
Bento, Lucas. 2011. “Toward an international law of piracy sui generis: how the dual nature
of maritime piracy law enables piracy to flourish.” Berkeley Journal of International Law
29(2): 399–455.
Berg, James. 2010. “‘You’re Gonna Need a Bigger Boat’: Somali Piracy and the Erosion of
Customary Piracy Suppression.” New England Law Review 44: 343–85.
Berndtsson, J. & Østensen, Å.G., 2015. “The Scandinavian Approach to Private Maritime
Security—A Regulatory Façade?” Ocean Development & International Law 46(2): 138–
152.
Le Bihan, Martine. 2003. “Sûreté maritime et terrorisme.” Revue de Droit Commercial,
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Bodini, Stefano Piedimonte. 2011. “Fighting Maritime Piracy under the European
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Boisson, Philippe. 2003. “La sûreté des navires et la prévention des actes de terrorisme
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Bonassies, Pierre. 2011. “Du régime de l’arrestation de pirates par un navire français dans
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Booth, Forrest and Larry Altenbrun. 2002. “Maritime and Port Security, Piracy, and
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Guinée.” Droit maritime français 771: 653–66.
Rajot, Bénédicte. 2011. “L’impact de la piraterie maritime sur les polices d’assurance.”
Responsabilité civile et assurances 2011(2): 2–3.
Recio, Manuel. 2011. “La France à l’abordage de la piraterie : la loi n° 2011-13 du 5
janvier 2011 relative à la lutte contre la piraterie et à l’exercice des pouvoirs de police de
l’État en mer ou le renforcement de l’arsenal répressif.” Droit pénal 23(4): 7–12.
Renaut, Marie-Hélène. 2002. “L’histoire du droit pénal de la marine marchande XVII éme-
XXI éme siècle.” Annuaire de droit maritime et océanique 20: 53–104.
Roach, J. Ashley. 2010. “Agora: Piracy Prosecutions. Countering Piracy off Somalia:
International Law and International and International Institutions.” The American Journal
of International Law 104(3): 397–416.
Rubin, Alfred P. 1987. “The Law of Piracy.” Denver Journal of International Law and
Policy 15(2-3): 173–233.
Sam Lefebvre, Awa. 2008. “La communauté internationale à l’assaut de la piraterie.”
Neptunus 14(2): 1–6.
Satkauskas, Rytis. 2011. “Piracy at Sea and the Limits of International Law.” Aegean
Review of the Law of the Sea and Maritime Law 1(2): 217–235.
Scavelli, Michael G. 2011. “Uncharted Waters. The Private Sectors Fight against Piracy on
the High Seas.” Brooklyn Law Review 76(1): 343–83.
Scharf, Michael P. and Matthew E. Carlton, eds. 2013. End Game! An International
Conference on Combating Maritime Piracy. Case Western Reserve Journal of International
Law 46(1-2): 1–462.
Schumacher, Jamie. 2013. “From Blackbeard to Jack Sparrow - who are today’s pirates and
why do we care? The effect the legal definition of piracy has on the international shipping
industry and maritime insurance coverage.” Journal of Law and Commerce 32(1): 135–53.
Silva, Mario. 2010. “Somalia: State Failure, Piracy, and the Challenge to International Law.”
Virginia Journal of International Law 50(1): 553–78.
Sterio, Milena. 2009. “The Somali Piracy Problem: a Global Puzzle Necessitating a Global
Solution.” American University Law Review 59(5): 1449–1498.
Stillwell, Nicole. 2009. “Robbers or Robinhoods?: A Study of the Somali Piracy Crisis and
a Call to Develop an International Framework to Combat Maritime Terrorism.” Loyola
Maritime Law Journal 7B: 127–46.
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Tallec, Jean-François and Philippe Dezeraud. 2011. “L’évolution du cadre juridique de

l’action de l’État en mer : une meilleure sécurité des espaces maritimes par le renforcement
de la place de l’autorité judiciaire.” Droit maritime français 726: 497–503.
Tassel, Yves. 2005. “Terrorisme, piraterie et guerre sous le rapport de l’assurance maritime.”
Annuaire de droit maritime et océanique 23: 77–94.
Treves, Tullio. 2009. “Piracy, Law of the Sea, and Use of Force: Developments off the
Coast of Somalia.” European Journal of International Law 20(2): 399–414.
Tuerk, Helmut. 2009. “The Resurgence of Piracy: A Phenomenon of Modern Times.”
University of Miami International & Comparative Law Review 17(1): 1–42.
Van Ginkel, B. and M. Gardner, eds. 2012. Symposium: Testing the Waters: Assessing
International Responses to Somali Piracy. Journal of International Criminal Justice 10(4):
723–880.
Van Hespen, Ilja. 2014. “Protecting merchant ships from maritime piracy by privately
contracted armed security personnel: a comparative analysis of flag state legislation and
port and coastal state requirements.” Journal of Maritime Law and Commerce 45(3): 361–
400.
Weckel, Philippe. 2010. “Journées méditerranéennes sur la piraterie maritime” Droit
maritime français 710: 69–74.
White, G Edward. 1989. “The Marshall Court and International Law: The Piracy Cases.”
American Journal of International Law 83(4): 727–735.
S Whitman and C Saurez. 2012. “Dalhousie Marine Piracy Project: The Root Causes and
True Costs of Marine Piracy.” Marine Affairs Program Technical Report #1.
Williamson, Hugh R. 2013. “New Thinking in the Fight against Marine Piracy: Financing
and Plunder Pre-Empting Piracy before Prevention Becomes Necessary.” Case Western
Reserve Journal of International Law 46:335–54.
Zou, Keyuan. 2009. “New Developments in the International Law of Piracy.” Chinese
Journal of International Law 8(2): 323–45.
2. Monography
Académie du Royaume du Maroc. 1986. La Piraterie au regard du droit des gens : Piracy
and the law of nations : La pirateria en el derecho de gentes. Rabat: Publications de
l’Académie du Royaume du Maroc.
Beckman, Robert C and J. Ashley Roach, eds. 2012. Piracy and International Maritime
Crimes in ASEAN: Prospects for Cooperation. Cheltenham, UK: Edward Elgar.
Brannon, Stephen and Taufiq Rahim, eds. 2011. Conference on Global Challenge,
Regional Responses: Forging a Common Approach to Maritime Piracy. Dubai: Dubai
School of Government.
Chapleau, Philippe and Jean-Paul Pancracio. 2014. La piraterie maritime : Droit, pratiques
et enjeux. Paris: Vuibert.
Chevallier-Govers, Constance & Catherine Schneider, eds. 2015. L’Europe et la lutte
contre la piraterie maritime. Paris: Éditions Pedone.
Dubner, Barry Hart. 1980. The Law of International Sea Piracy. The Hague: Martinus
Nijhoff.
Grangé, Ninon et al, eds. 2013. Carl Schmitt: normes, droit et conflit dans les relations
internationales. Rennes: Presses universitaires de Rennes.
Guilfoyle, Douglas, ed. 2013. Modern Piracy: Legal Challenges and Responses.
Cheltenham, UK: Edward Elgar.
Guilfoyle, Douglas. 2009. Shipping Interdiction and the Law of the Sea. Cambridge:
Cambridge University Press.
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Le Hardy de Beaulieu, Louis et al, eds. 2007. Criminalité et trafics maritimes: des enjeux
politiques aux conséquences juridiques. Namur: Presses universitaires de Namur.
Hallwood, C. Paul, and Thomas J. Miceli. 2015. Maritime Piracy and Its Control: An
Economic Analysis. New York: Palgrave Macmillan.
Heller-Roazen, Daniel. 2009. The Enemy of All: Piracy and the Law of Nations. New York:
Zone Books.
Houry, Christophe. 2014. La piraterie maritime au regard du droit international:
Incertitudes et évolutions contemporaine Incertitudes et évolutions contemporaines. Paris:
Éditions l’Harmattan.
Koutrakos, Panos and Achilleas Skordas, eds. 2014. The law and practice of piracy at sea:
European and international perspectives. Oxford: Hart Publishing.
Kraska, James. 2011. Contemporary Maritime Piracy: International Law, Strategy, and
Diplomacy at Sea. Santa Barbara, CA: Praeger Publishers.
Latrive, Florent. 2004. Du bon usage de la piraterie: culture libre, sciences ouvertes. Paris:
Exils.
Lehr, Peter, ed. 2007. Violence at Sea: Piracy in the Age of Global Terrorism. New York:
Routledge.
Mejia, Maximo Q, Chie Kojima and Mark Sawyer, eds. 2013. Piracy at Sea. New York:
Springer.
Neri, Kiara. 2013. L’emploi de la force en mer. Bruxelles: Éditions Bruylant.
Papastavridis, Efthymios. 2013. The interception of vessels on the high seas: contemporary
challenges to the legal order of the oceans. London: Hart Publishing.
Petrig, Anna. 2014. Human Rights and Law Enforcement at Sea Arrest, Detention and
Transfer of Piracy Suspects. Leiden: Brill.
Petrig, Anna, ed. 2010. Sea Piracy Law: Selected National Legal Frameworks and
Regional Legislative Approaches / Droit de la piraterie maritime: Cadres juridiques
nationaux et approaches législatives regionals. Berlin: Duncker & Humbolt.
Petrig, Anna, and Robin Geiß. 2011. Piracy and Armed Robbery at Sea: The Legal
Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden. Oxford:
Oxford University Press.
Scharf, Michael P, Michael A. Newton and Milena Sterio, eds. 2015. Prosecuting Maritime
Piracy: Domestic Solutions to International Crimes. Cambridge: Cambridge University
Press.
Struett, Michael J, Jon D Carlson and Mark T Nance, eds. 2012. Maritime Piracy and the
Construction of Global Governance. New York: Routledge.
Rothwell, Donald, et al, eds. 2016. The Oxford handbook of the law of the sea. Oxford:
Oxford University Press.
van Ginkel, Bibi and Frans-Paul van der Putten, eds. 2010. The International Response to
Somali Piracy: Challenges and Opportunities. Leiden: Brill.
Young, Adam J. 2007. Contemporary Maritime Piracy in Southeast Asia: History, Causes
and Remedies. Singapore: Institute of Southeast Asian Studies.
3. National Legislations on Piracy and Armed Robbery at Sea
Africa
Côte d’Ivoire: loi No.2017-442 du 30 juin 2017 portant Code Maritime ; Articles 1008-
1010 ; Article 1018
Kenya: Act 4 of 2009 – Merchant Shipping, Part XVI – Maritime Security, articles 369-372
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Liberia: Title 26 of the Liberian Code of Laws Revised and Approved July 22, 2008, Vol.IV,
page 816, Article 15.31. Piracy
Morocco: Code disciplinaire et penal de la marine marchande, Annexe2 du Code maritime
de 1919, Article 23(3) crime de piraterie
South Africa: Act No.42, 2002, Defence Act 2002, Chapter 4: Law Enforcement Powers of
Defence Force at Sea
Tanzania: Penal Code, Chapter 16 of the Laws (Revised)
Togo: Ordonnance No.129 du 12 Aout 1971, Code de la Marine Marchande, révisée en
2018 ?
Union des Comores: Projet de code maritime, Article 81 (sur la piraterie maritime)
Americas
North America
Canada: Criminal Code (2009); C-46, Part II, Sections 74-75
United States of America: 18 U.S.C. §2280; 18 U.S.C.§ Piracy under law of nations; 18
U.S.C.§ 1652 Citizens as pirates
Latin America and the Caribbean

Argentina: Penal Code, Chapter III (piracy), Articles 198 and 199
Argentina: Penal Code, Section VII, « Crimes against Public Safety », Chapter III-Piracy,
Articles 198 and 199
Bahamas: Penal Code, Chapter 84, Article 404 (piracy)
Brazil: Criminal Code, as Decree Law No 2828 from 7 December 1940, Chapter II, Article
157: Robbery and Extorsion
Chile: Codigo Penal : Titulo I del Decreto No.5839 de 30 de septiembre de 1948, Art.6 (7):
la pirateria
Cuba: la Ley No. 93 de 20 de Diciembre de 2001, « Ley contra actos de terrorismo »,
Capitulo IV: Actos contra la Seguridad de la Navegacion Maritima, Articulo 16.1 ;
Capitulo VI : Otros Actos que Atentan contra la Seguridad Aerea y Maritima, Articulo 21
Guatemala: Decreto Numero 56-96
Mexico: Federal Penal Code, Chapter I: Piracy, Article 146 (I, II, III)
Asia
Indonesia: Penal Code, Chapter XXIX, Article 438-448
Iran: Islamic Punishment Act, Article 683, Article 185
Japan: Law on Punishment of and Measures against Acts of Piracy
Philippines: Act No.9372, “Human Security Act of 2007”, Section 3: Terrorism, (a) Article
122 (piracy in general and Munity in the High Seas or in the Philippine Waters); (5)
Presidential Decree No.532 (Anti-Piracy and Anti-Highway Robbery Law of 1974
Republic of Korea: Laws and Ordinances on Punishment of Act of Piracy and Armed
Robbery at Sea, Article 340
Singapore: Penal Code, Cf.12 and 13 Victoria c.96 (Admiralty Offences (Colonial Act
1849), Article 130B (piracy); Article 130C (piratical acts)
Sri Lanka: Act No.9 of 2001 (Piracy) and Act No.42 of 2000 (Suppression of Unlawful Acts
Against The Safety of Maritime Navigation)
Thailand: Act on Prevention and Suppression of Piracy, B.E.2534 (1991), Anti-Piracy Law
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Turkey: Turkey Penal Code, Articles 8, 12, 13, 35, 36, 37, 223, 224
United Arab Emirates: Commercial Maritime Law No.26 of 1981, Articles 208, 209, 210
Europe and others

Australia: Crimes Act 1914, Sections 51, 52, 54, Part IV – Piracy and Criminal Code Act
1899
Austria: Criminal Code, Section 65
Belgium: Loi relative a la lutte contre la piraterie maritime et modifiant le Code judiciaire
(1), 30 décembre 2009
Bulgaria: Penal Code, Article 6, para.2
Czech Republic: Law No.40/2009 Coll., Criminal Code, January 1, 2010, Section 290
(Gaining Control over the Aircraft, Civil Vessel and Fixed Platform)
Cyprus: Criminal Code, Part I: Offences related to Piracy, Section 69, and Part II: Other
Cyprus legislative provisions on certain acts of piracy/armed robbery
Denmark: Criminal Code, Section 183a (piracy) and b (Armed robbery at Sea)
Estonia: Penal Code, Section 110 (piracy)
Finland: Criminal Code, Chapter 1, Section 2
France: Decret No.2011-1213 du 29 septembre 2011 pour l’application de l’article 4 de la
loi No.94-589 du 15 juillet 1994 relative a la lutte contre la piraterie et aux modalites de
l’exercice par l’Etat de ses pouvoirs de police en mer
Greece: Greek Code on Public Maritime Law, Article 215 (crime of piracy), Article 8 of the
Penal Code (piracy as a crime jure gentium)
Italy: Decree of December 30, 2008, no209 converted by Law 24 th February 2009, n.12,
Article 5 of Italian Navigation Code, Article 1135 (Piracy); Article 1136 (Ship on suspicion
of Piracy) Israel: Anti-Piracy Legislation: Penal Law, 1977, Section 169
Latvia: Criminal Law of 17th June, 1998, Article 176 (Robbery), Article 268 (Seizure of an
Air or Water Transport vehicle)
Malta: Criminal Code: CAP.9, Sub-title IV B of Piracy, Article 328N (Definition of piracy,
Added by XI.2009.7)
New Zealand: The Crimes Act 1961, s92-97
Norway: General Civil Penal Code, Section 49
Poland: Polish Penal Code, Chapter XVI, Chapter XX and Chapter XXXII
Russia: Federal Act No.162-FZ of December 2003, Article 227. Piracy
Spain: La legislacion Espagnola en material de Pirateria, 2009, la Ley Organica 6/1985,
Articulo 23 aparatado 4 (c) : Pirateria y apoderamiento illicito de aeronaves
Ukraine: Criminal Code of 2001, Article 446
United Kingdom: Merchant Shipping and Maritime Security Act of 1997, Article 26; and
Piracy Act 1837 c.88
4. National Court Decisions
Africa
Tanzania
Ibrahim Sangoro v. Republic, Court of Appeal of Tanzania, Case No.298 of 1992; [1984]
TZHC 13; (12 May 1984); 1984 TLR 314 (TZHC)
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Magendo Paul and Others v. Republic, [1992] TLR 220; [1993] TZCA 23; (25 October
1993); 1993 TLR 220 (TZCA)
Manju Salum Msambya v. Attorney General and kifu Gulamu Hussein kifu
Makoye Samwal Kashinge and 4 Others v. Republic
Michael Haishi v. Republic, [1992] TLR 92; [1992] TZCA 15; (13 May 1992); 1992 TLR
92 (TZCA)
Mohamed Said Matula v. Republic, [1995] TLR3; [1994] TZCA 8; (11 April 1994); 1995
TLR 3 (TZCA)
Raymond Francis v. Republic, [1994] TLR 100; [1994] TZCA 2; (14 February 1994); 1994
TLR 100 (TZCA)
Republic v. Mohamed Bin Akui
Republic v. Mohamed Nuru Adam and Others
Seychelles
Hassan Thaliil Ahmed and Others v. Republic, Supreme Court Decision CR73/2013,
Criminal Appeal SCA06-13/2015; (SCA 06-13/2015) [2016] SCCA 32
Mohamed Abdi barre and Others v. Republic, Criminal Appeal SCA 07/2013, Appeal from
Supreme Court Decision, 28/2012;SCA No. 7 /2013) [2015] SCCA 2
Mohamed Hassan Ali and Others v. Republic, Seychelles Court of Appeal, Appeal from
Supreme Court Decision CR08/2012, 12 December 2014; (CO 06/2014) [2016] SCSC 129
Mohamed Shire v. The Republic, [2015] SCCA 25 (Seychelles Court of Appeal); (SCA CR
31-37/2014) [2015] SCCA 25
R v. Ise, (2011) SLR 220;(75 of 2010) [2011] SCSC 37
R v. Osman, (2011) SLR 345;CO 19/2011) [2011] SCSC 74
Republic v. Aden, (2011) SLR 41; (CO 75/2010) [2011] SCSC 100
Republic v. Ali, (2010) SLR 341, Supreme Court of Seychelles; SCA 22/2012) [2014]
SCCA 34
Republic v. Farad Ahmed and Others, Supreme Court of Seychelles, Criminal Side No. 16
of 2012; (Criminal Side No: 16 of 2012) [2013] SCSC 17
Republic v. Mohamed Ahmed Dahir & TEN (10) Others, Supreme Court of Seychelles,
Criminal Side No. 51 of 2009; (51 of 2009) [2010] SCSC 81
Republic v. Mohammed Ali Hossein and Others, [2016] SCSC 129, 20 January 2016,
Supreme Court of Seychelles; (CO 06/2014) [2016] SCSC 129
The Sunshine incident; No citation available
The Al Molai incident; No citation available
Kenya
Abdiaziz Ali Abdulahi & 23 others v Republic, [2014] EKLR
Abdikadir Isey Ali & 8 others v Republic, [2015] EKLR
Abdirahman Mohamed Roble & 10 others v Republic, [2013] EKLR
Attorney General V Mohamud Mohammed Hashi & 8 Others, [2012] EKLR
Hassan M. Ahmed v. Republic, [2009] EKLR
Omar Shariff Abdalla v. Corporate Insurance Co Ltd, [2005] EKLR
Republic v. Chief Magistrate Court, Mombasa Ex-parte Mohamud Mohamed Hashi & 8
Others, [2010] EKLR
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Asia
Enrica Lexie case 2012 (India/Italy)
Lia incident 2009 (China)
MV Guanabara case 2011 (Japan)
M/V Guanabara Case, Tokyo High Court, 18 December 2013 (Japan)
MV Jag Arnav case 2008 (India)
MV Stolt Valor (India)
MV Zhenhua 2009 (China)
Europe & others

Alakrana case 2009 (Spain)
Athens Maritime Enterprises Corp v. Hellenic Mutual War Risks Association (Bermuda)
Limited or the Andreas Lemos, [1983] 1 All ER 590 (UK); [1982] 2 Lloyd’s Rep. 483
Carré d’As Case (France)
The case In Re Piracy Jure Gentium, [1934] AC 586 (UK)
Castle John case (Belgium)
The Cygnus case (Somali Pirates), Rotterdam District Court, 17 June 2010, 145
International Law Report 491, 499 (Netherlands); 145 I.L.R. 491, 491–92 (Rb. Rotterdam
2010)
Feddah case 2012 (Netherlands);22-004920-12 (ECLI:NL:GHDHA:2014:1006)
Fidelio case, Court of Cassation decision of 1 February 1993 (Italy)
MV Faina case 2009 (Russia)
MV Taipan case 2012 (Germany)
New South Wales v. Commonwealth, (1975) 135 CLR 337 (Australia)
Petral case 2010 (Belgium)
Pompei case 2009 (Belgium)
Ponant Case (France)
Re Castioni, [1891] 1QB 149 (UK)
Republic of Bolivia v. Indemnity Mutual Marine Assurance Company Limited, [1909] 1 KB
785 (UK)
Samanyulo case 2009 (Netherlands)
Tanit Case (France)
Winner Case 2008 (France)
Americas
United States of America

The Belfast, Supreme Court of the United States, December 1, 1868, 74 U.S. 624.
Ex parte Gordon, Supreme Court of the United States, December 1, 1861, 66 U.S. 503.
Kiobel v. Royal Dutch Petroleum Co., Supreme Court of the United States, April 17, 2013,
569 U.S. 108.
Manro v. Almeida, Supreme Court of the United States, March 8, 1825, 23 U.S. 473.
New Jersey Steam Nav Co. v. Merchant’s Bank of Boston, Supreme Court of the United
States, January 1, 1848, 47 U.S. 344.
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United States v. Flores, Supreme Court of the United States, April 10, 1933, 289 U.S. 137.
U.S. v. ALI, United States Court of Appeals, District of Columbia Circuit, June 11, 2013,
718 F.3d 929 782 F.3d 159.
U.S. v. ALI, United States District Court, District of Columbia, July 13, 2012, 885
F.Supp.2d 17.
U.S. v. Beyle, United States Court of Appeals, Fourth Circuit, April 3, 2015, 782 F.3d 159.
U.S. v. Dire, United States Court of Appeals, Fourth Circuit, February 28, 2014, 680 F.3d
446
U.S. v. Smith, Supreme Court of the United States, February 25, 1820, 18 U.S. 153.
U.S. v. Wiltberger, Supreme Court of the United States, February 18, 2018, 18 U.S. 76.
5. International case law relating to the use of force at sea

Affaires Yassin Abdullah Kadi et Al Barakaat International Foundation/Conseil et
Commission, 3 Septembre 2008, CJUE; Joined cases C-402/05 P and C-415/05 P.
Enrica Lexie case, India v. Italy, 2012; AIR 2012 SC 2134; 2013(4) SCALE 578. (2013) 4
SCC 721
Guyana v. Suriname, (2008) 47 ILM 164;ICGJ 370 (PCA 2007), 47 ILM 166, 2008
Medvedyev v. France, judgment, March 29, 2010, para.85 (Eur.Ct.H.R 2010); GC] 3394/03
Judgment 29.3.2010 [GC]
M/V Saiga (No.2) (Saint Vincent and the Grenadines v. Guinea), judgment, [1999] 3
ITLOS Rep 10 at 48; [1999] 3 ITLOS Rep 10 at 48
SS I’m Alone (Canada v. United States), (1935) 3 RIAA 1609; 3 RIAA 1609
The Red Crusader (Denmark v. UK), (1962) 35 ILR 485; (1962) 35 ILR 485
6. Legal Instruments (regional and multilateral legal instruments)
UNCLOS, Articles 100-107, 110, 111, Article 87
IMO Resolutions, Documents and Guidance

• Assembly Resolution Res.A.922 (22) (November 29, 2001): Code of Practice for the
Investigation of the Crimes of Piracy and Armed Robbery Against Ships,
• “Piracy : elements of national legislation pursuant to the United Nations
Convention on the Law of the Sea, 1982” (Doc LEG 98/8/1 and LEG 98/8/3,
submitted by DOALOS
• “Establishment of a legislative framework to allow for effective and efficient piracy
prosecutions” (Doc LEG 98/8/2, submitted by UNODC
• “Uniform and consistent application for the provisions of international conventions
relating to piracy” (DOC LEG 98/8), submitted by IMO Secretariat
• “Establishment of a legislative framework to allow for effective and efficient piracy
prosecutions” (DOC LEG 98/4), submitted by Ukraine
• Implications of the United Nations Convention on the Law pf the Sea for the
International Maritime Organization¨, IMO, LEG/MISC.8, January 30, 2014; at 46-
51 (Chapter on piracy
IMO Assembly Resolutions

• A.545(13) (1983), Measures to prevent acts of piracy and armed robbery against
ships
• A.683(17) (1991), Prevention and suppression of acts of piracy and armed robbery
against ships
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• A.738(18) (1993), Measures to prevent and suppress piracy and armed robbery
against ships
• A.979(24) (2005), Piracy and armed robbery against ships in waters off the coast of
Somalia
• A.1002(25) (2007), Piracy and armed robbery against ships in waters off the coast
of Somalia
• MSC.1/Circ. 1333 (2009), Recommendations to Governments for preventing and
suppressing piracy and armed robbery against ships (replaces MSC/Circ.622/Rev.1)
• MSC.1/Circ. 1334 (2009), Guidance to Shipowners and ship operators, shipmasters
and crews on preventing and suppressing acts of piracy and armed robbery against
ships (replaces MSC/Circ.623/Rev.3)
• MSC.1/Circ. 1332 (2009), Piracy and armed robbery against ships in waters off the
coast of Somalia
• MSC/Circ.1073 (2003), Directives for Maritime Rescue Co-ordination Centres
(MRCCs) on Acts of Violence against Ships, Conference Report: Overview of legal
issues relating to different private interests
• Draft 26th IMO Assembly Resolution, Adoption of the Code of Practice for
Investigation of crimes of piracy and armed robbery against ships (2009), to replace
A.922(22), MSC 86/26/Add.2, Annex 23
• Code of Conduct Concerning the Repression of Piracy and Armed Robbery Against
Ships in the Western Indian Ocean and the Gulf of Aden, 2009, IMO doc. C 102/14,
Annex
• SN.1/Circ.281, Information on Internationally Recommended Transit Corridor
(IRTC) for Ships Transiting the Gulf of Aden, 32 August 2009
• Seoul Statement on Piracy off the Coast of Somalia, 10 June 2009, IMO doc. C
102/INF.3, Annex
SOLAS Convention (Convention on Safety of Life at Sea)
UNODC Regulations
ICC; International Chamber of Commerce
IMB (International Maritime Bureau)
FAO Resolutions
INTERPOL:
• INTERPOL’s Global Piracy Database ; and its case: Greece to Prosecute First
Maritime Piracy Case with Evidence Gathered by INTERPOL Team, December 12,
2012
• The EVEXI (Evidence Exploitation Intelligence)
IOCA Rules
7. Security Council Resolutions

S/Res/1816(2008), November 6, 2008
S/Res/1838(2008), October 7, 2008
S/Res/1846(2008), December 2, 2008
S/Res/1851(2008), December 16, 2008
S/Res/1897(2009), November 30, 2009
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S/Res/1918(2010), April 23, 2010

S/Res/1950(2010), November 23, 2010
S/Res/1976(2011), April 11, 2011
S/Res/2015(2011), October 24, 2011
S/Res/2018(2011), October 31, 2011
S/Res/2020(2011), November 22, 2011
S/Res/2039(2012), February 29, 2012
S/Res/2077(2012), November 21, 2012
S/Res/2125(2013), November18, 2013
S/Res/2383(2017), 7 November 2017
S/2012/45(2012), January 19, 2012
S/2012/50, January 20, 2012: Report of the Secretary-General on specialized anti-piracy
courts in Somalia and other States in the region
8. United Nations General Assembly Resolutions and Documents

G.A. Res. 63/111, para.61, U.N. Doc. A/RES/63/111, December 5, 2008
UNGA: International Expert Group on Piracy off the Somali Coast: Final Report:
Assessment and Recommendations (workshop commissioned by the Special Representative
of the Secretary-General of the United Nations to Somalia, 21 November 2008
UN Basic Principles on Firearms, UN DocA /CONF.144/28/Rev.1, article 9
UN Doc. S/2011/30, January 25, 2011, Special Advisor to the Secretary-General on Legal
Issues Related to Piracy off the Coast of Somalia (Special Advisor Jack Lang)
9. Reports of the UN Secretary-General

S/2010/394, July 26, 2010
S/2010/556, October 27, 2010
S/2011/360, June 15, 2011
S/2011/662, October 25, 2011
S/2012/50, January 20, 2012
S/2012/783, October 22, 2012
S/2013/623, October 21, 2013
10. International Cooperation

States involved: Australia, Canada, Denmark, France, India, the Netherlands, the Russian
federation, Spain, the United Kingdom, the United States, Japan, China, South Korea,
Germany, etc
EU NAVFOR Atalanta, 2008
NATO Operation Ocean Shield, 2009
American-Led Combined Maritime Forces (Task Force 151 on piracy, 2009
“Exchange of Letters between the European union and the Government of Kenya on the
Conditions and Modalities for the Transfer of Persons Suspected of having Committed Acts
of Piracy”, Introductory Note by Eugene Kontorovich, in (2009) 48 ILM 747, 747-9
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11. Regional Cooperation

Regional Cooperation Agreement in Combating Piracy and Armed Robbery against Ships
in Asia, 2006 (ReCAAP, 2006)
The Code of Conduct Concerning the Repression of Piracy and Armed Robbery Against
Ships in the Western Indian Ocean and the Gulf of Aden, (Djibouti Code of Conduct, 2009)
Code of Conduct Concerning the Repression of Piracy, Armed Robbery against Ships, and
illicit Maritime Activity in West and Central Africa (Gulf of Guinea Code of Conduct, 2013)
GE.19-13883 (E)
394
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GE.19-13883

Report of The International Law Commission: United Nations

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A/74/10

Report of the International

Report of the International Law Commission

United Nations • New York, 2019

ISSN: ENG 0251-822X

GE.19-13883 (E) 160819 100919 iii

Article 8 Investigation ............................................................................................. 87

Conclusion 5 Bases for peremptory norms of general

Conclusion 19 Particular consequences of serious breaches of peremptory

Principle 7 Peace operations.................................................................... 230

1. Introduction by the Special Rapporteur of the first report ............................................ 329

2. The Commission consists of the following members:

Mr. Marcelo Vázquez-Bermúdez (Ecuador)

B. Officers and the Enlarged Bureau

(c) Protection of the environment in relation to armed conflicts: Mr. Claudio

D. Working Groups and Study Group

8. The Planning Group established the following Working Groups:

serious violations of international humanitarian law”; and (b) “Prevention and

A. Immunity of State officials from foreign criminal jurisdiction

B. General principles of law

C. Sea-level rise in relation to international law

B. Consideration of the topic at the present session

C. Recommendation of the Commission

D. Tribute to the Special Rapporteur

E. Text of the draft articles on prevention and punishment of crimes

1. Text of the draft articles

Prevention and punishment of crimes against humanity

6. States that do not make extradition conditional on the existence of a treaty

(f) providing information, evidentiary items and expert evaluations;

Designation of a central authority

Procedures for making a request

Response to the request by the requested State

Use of information by the requesting State

Testimony of person from the requested State

Transfer for testimony of person detained in the requested State

2. Text of the draft articles and commentaries thereto

Considering the definition of crimes against humanity set forth in article 7 of

prohibition of crimes against humanity is “clearly accepted and recognized” as a

27 Vienna Convention on the Law of Treaties, art. 28.

(a) “attack directed against any civilian population” means a course of

Definitions in other instruments

on political, racial or religious grounds in execution of or in connection with any

35 Yearbook … 1996, vol. II (Part Two), p. 47, art. 18.

“Widespread or systematic attack”

“Directed against any civilian population”

“With knowledge of the attack”

Definitions within the definition

paragraph 1, specifically: “extermination”; “enslavement”; 156 “deportation or forcible

interpret this in accordance with internationally recognised human rights pursuant to

exceptional circumstances whatsoever may be invoked as a justification of crimes against

later express references to legislation, prosecution and extradition. Those features

231 Convention against Torture, art. 2, para. 1.

country.267 While a “mere possibility” of ill-treatment is not sufficient, it is not necessary

278 Convention relating to the Status of Refugees, art. 33, para. 2.

280 Judgment of 30 September 1946 (see footnote 92 above), p. 466.

Committing, attempting to commit, assisting in or contributing to a crime against humanity

298 Rome Statute, art. 25, para. 3 (f).

Command or other superior responsibility

(31) In light of such precedents, the Commission deemed it appropriate to include