International Law Commission

The International Law Commission (ILC) is a specialized body of experts that is subordinate to the General Assembly of the United Nations. Its mandate is to codify and progressively develop international law. The international law concerning genocide and crimes against humanity has benefited from the commission's attention. Since its creation, the ILC has been responsible for the preparation of several important documents, including the Draft Statute of the International Criminal Court, the Code of Crimes Against the Peace and Security of Mankind, the formulation of principles recognized in the Charter of the Nuremberg Tribunal, and the Articles on State Responsibility.

The ILC was established by the UN General Assembly in 1947, in accordance with its authority under Article 13(1) of the Charter of the United Nations. There was no direct ancestor of the ILC in the League of Nations system, although attempts had been made to convene expert meetings with a view to codifying international law. The ILC held its first session in 1949, and since then has met annually for several weeks. It is composed of thirty-four experts with recognized competence in international law. The experts are distinguished academics or diplomats, for the most part, rather than delegates from specific countries. Each expert acts in his individual capacity.

Over the years, the ILC's program of work, which is established in consultation with the General Assembly, has included a wide range of international law issues. Among the topics it has addressed are the treatment of aliens, the law of the high seas, diplomatic and consular immunities, and the law governing international treaties including the issue of reservations. At its very first session, the ILC decided not to consider the codification of the laws and customs of war. The Swiss Government and the International Committee of the Red Cross had taken the lead in organizing activity that, in August 1949, resulted in the adoption of the Geneva Conventions on the protection of persons in armed conflict. Several ILC members considered it inappropriate that a United Nations body study the laws of war, given the commitment in the Charter of the United Nations to prohibit the use of force.

One of the first topics assigned by the General Assembly to the ILC was the formulation of the principles of international law recognized in the Charter of the Nuremberg Tribunal. The Trial of the Major War Criminals, held in Nuremberg in 1945 and 1946, had been set up by the four Allied powers (France, the United States, the United Kingdom, and the USSR) in accordance with a treaty adopted at London in August 1945 known as the London Charter or the Charter of the Nuremberg Tribunal. The ILC considered that the principles recognized by the Charter of the Nuremberg Tribunal, and by the final judgment of the Tribunal of September 30 to October 1, 1946, were already recognized as properly forming a part of international law, given their endorsement in December 1946 by General Assembly Resolution 95(I). In 1950 the ILC adopted its formulation of seven principles. These included individual criminal responsibility for crimes under international law, with liability attaching to heads of state or government and to accomplices; a rejection of the defense based on following a superior's orders; the right to a fair trial; and an acknowledgment of the definitions of three categories of international crime, including crimes against humanity.

A year later, in 1948, the ILC was given responsibility for a study of the desirability and possibility of establishing an international criminal court. The issue arose in the context of drafting the Convention for the Prevention and Punishment of the Crime of Genocide. The countries involved in drafting the Genocide Convention rejected the concept of universal jurisdiction out of concern for politically motivated prosecutions in the context of the emerging cold war. Instead, Article VI of the Convention said that the crime of genocide would be prosecuted by the courts of the state where the crime took place—an unlikely scenario—or by "such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction."

The ILC gave the matter of an international court some preliminary consideration in 1949. Then the General Assembly set up a specialized committee, which prepared a draft statute. In 1954 the General Assembly decided to postpone further work on the concept of an international criminal court until a satisfactory definition of the crime of aggression had been agree to. That activity was to take two decades until, in 1974, the General Assembly adopted a resolution providing a definition of aggression. The effect, for the ILC, was to suspend work on the subject of an international criminal court.

The ILC did not resume its study of the international criminal court until 1990, following yet another resolution of the General Assembly. The ILC worked quickly, setting up a working group in 1992 and assigning James Crawford as its special rapporteur on the subject. A proposed draft statute was considered by the ILC at its 1993 session. It was circulated to governments for their comments. A revised version, taking into account this consultation, was adopted by the ILC in 1994 and promptly submitted to the General Assembly. The important work of the ILC provided the General Assembly with a framework for discussions, and much of the text proposed by the ILC survived in the final version of the Rome Statute of the International Criminal Court (ICC), which was adopted in July 1998.

Another major contribution by the ILC is its Code of Crimes Against the Peace and Security of Mankind. This idea was originally conceived in 1947 and was related to the mandate of formulating the Nuremberg Principles. The great interest in international criminal law generated by the post–World War II prosecutions evolved into an effort at codifying the international crimes. Lack of an accepted definition prior to the Nuremberg prosecutions had vexed those who had established the tribunal and provided arguments to the defendants, who claimed they were victims of ex post facto criminal legislation. This brought into sharp relief the importance of codifying this emerging area of law by an authoritative body, and the International Law Commission was the logical choice.

The ILC completed its first draft of the Code of Crimes in 1951. It did not follow the Nuremberg definitions exactly. It agreed to confine the scope of the code to offences with a political element that endangered international peace and security. Accordingly, it did not address such issues as piracy, trafficking in persons and in dangerous drugs, slavery, counterfeiting, and damage to submarine cables, although in the past these had fallen within the ambit of international criminal prosecution. The 1951 draft was submitted to governments for comments and then revised in 1954, when it was submitted to the General Assembly. As it had done with the international criminal court project, the General Assembly decided to suspend work on the codes, pending elaboration of a definition of aggression.

Work only resumed on the code in the late 1970s. Over the next decade and a half, the ILC gave detailed consideration to the definitions of the crimes of genocide and crimes against humanity. It also examined issues of substantive criminal law related to the prosecution of these crimes, including the nature of complicity and other forms of criminal participation, and the admissibility of defences such as superior orders and various immunities. This detailed work resulted, in 1991, in a draft of the code, which was submitted to governments for their comments. A few years later, the ILC returned again to the code, adopting its definitive version in 1996.

When the International Criminal Tribunal for the Former Yugoslavia (ICTY) began its activities, it drew on the work of the ILC in international criminal law for guidance. A judgment of the International Criminal Tribunal for the Former Yugoslavia described the code in the following terms:

[A]n authoritative international instrument which, depending upon the specific question at issue, may (i) constitute evidence of customary law, or (ii) shed light on customary rules which are of uncertain contents or are in the process of formation, or, at the very least, (iii) be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world.

In another case, the ICTY referred to the work of the commission in order to distinguish between the crime of genocide and that of extermination, which is a punishable act falling within the rubric of crimes against humanity.

Similarly, the ILC materials on the code provided theoretical guidance for debates at the Rome Conference at which the Statute of the International Criminal Court was adopted. There was a major conceptual difference, however, in the version of the Statute of the International Criminal Court adopted at Rome and the 1994 draft of the ILC. The commission had viewed the proposed court as an organ that fit neatly within the system of the United Nations Charter, especially as concerned the Security Council. The ILC's proposal was for a court subordinate to the Security Council, essentially similar to the ad hoc tribunal that the Council had established in 1993 for the former Yugoslavia. In the course of political debate about the nature of the court that took place under the auspices of the General Assembly between 1994 and 1998, the court became progressively detached from the domination and control of the Security Council. The Rome Statute authorizes the International Criminal Court to prosecute cases at the initiation of an independent prosecutor, an idea rejected by the ILC. Furthermore, it subjects any decision by the Security Council to suspend prosecution to much more rigorous process than had been imagined by the ILC.

The ILC has also addressed issues related to genocide and crimes against humanity in other contexts, notably in the course of its preparation of the draft Articles on State Responsibility. The Genocide Convention of 1948 appears to contemplate genocide as both an individual crime, capable of being committed by physical persons, and as a breach of international law, committed by states. In fact, on several occasions, one state has sued another before the International Court of Justice for violations of the Genocide Convention, although a final judgment has yet to be rendered in any of these cases. In its draft Articles, adopted in 2000, the ILC agreed to treat genocide and related crimes as "internationally wrongful acts" rather than as "state crimes," which was a controversial concept on which it could reach no consensus.

The various draft instruments adopted by the ILC, the reports of its rapporteurs, and the debates and proceedings of its annual meetings provide students of international crimes with a rich resource. These materials have been widely drawn upon by lawyers and judges at the international courts, as well as by academic lawyers. The contribution of the ILC to the codification and development of international law relating to the repression of genocide and crimes against humanity is both immense and invaluable.

SEE ALSO Code of Crimes against the Peace and Security of Mankind; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; International Law; Nuremberg Laws; Responsibility, State

BIBLIOGRAPHY

Crawford, James (1994). "The ILC's Draft Statute for an International Criminal Tribunal." American Journal of International Law 88:140.

Crawford, James (1995). "The ILC Adopts a Statute for an International Criminal Court." American Journal of International Law 89:404.

Crawford, James (2002). The International LawCommission's Articles on State Responsibility. Cambridge: Cambridge University Press.

Morton, Jeffrey S. (2000). The International LawCommission of the United Nations. Columbia: University of South Carolina Press.

Ramcharan, B. G. (1977). The International LawCommission, Its Approach to the Codification and Progressive Development of International Law. The Hague, Netherlands: Martinus Nijhoff.

United Nations (1996). The Work of the International Law Commission, 5th edition. New York: United Nations.

United Nations (1997). Analytical Guide to the Work of the International Law Commission 1949–1997. New York: United Nations.

Watts, Arthur (1999). The International Law Commission1949–1998. Oxford: Oxford University Press.

William A. Schabas