Senior advisor on international humanitarian law
Bureau of Global Criminal Justice
New York, New York
April 12, 2023
As it was delivered
Group 3 (National Measures: Articles 6, 7, 8, 9 and 10)
Thank you, Mr. President. The United States welcomes the opportunity to address the provisions of the draft articles relating to national measures.
Turning to draft article 6, we note that the obligation under paragraph 1 – to take the necessary measures to ensure that crimes against humanity constitute crimes under each State’s criminal law – will be essential in efforts to prevent and punish crimes against humanity more effectively and to combat impunity . through national efforts
In this regard, we note that although crimes against humanity per se are not criminalized under US law, many existing US laws can be used to punish behavior that constitutes crimes against humanity, such as domestic murders, sexual violence, and human assaults. trafficking. The Biden administration has expressed support for the proposed law that would make crimes against humanity crimes under US criminal law. This proposal remains a matter of debate in the United States Congress.
Turning to the other paragraphs of draft article 6, we note that it reflects important principles recognized by the International Military Tribunal at Nuremberg that will be crucial to the effectiveness of any future convention on the prevention and punishment of crimes against humanity. These principles include the principle that anyone who commits, orders or otherwise becomes complicit in crimes against humanity is liable to punishment, and the principle that acting on the orders of a government or superior does not absolve a perpetrator of a crime against humanity from responsibility. .
With regard to the forms of liability covered by paragraph 2 (c) of draft article 6, we note that it will be necessary for any future convention on crimes against humanity to address both direct and indirect forms of liability. However, we recognize that states’ domestic criminal systems differ, and states may take different approaches to matters of collusion, whether viewed primarily through the lens of accomplice liability, conspiracy, participation in a joint criminal act, common purpose, or any method other than responsibility. Accordingly, we believe that it will be important for any future agreement to allow flexibility in how countries implement their obligations in this regard.
With regard to paragraph 3 of draft article 6, we are aware of the importance of the principle of command responsibility in holding accountable superiors responsible for serious international crimes. Since World War II, this principle has played an essential role in holding military commanders and other superiors accountable for crimes committed by their subordinates. However, we recognize that states may approach the concept of command responsibility – including its specific elements and its applicability to both military commanders and other superiors – in different ways. To that end, we are particularly interested in hearing the views of other nations on this matter.
With regard to paragraph 8 of draft article 6, which deals with the liability of “legal persons”, we note that there is no universally recognized concept of criminal liability of legal persons in international criminal law. We appreciate that Paragraph 8 recognizes this by stating explicitly that national laws and “appropriateness” may dictate whether and how states limit the liability of “legal persons”. However, we believe there may be value in further discussion of this concept.
With regard to draft article 8, we support the provision obligating States to conduct investigations of crimes against humanity. The duty of States to conduct such investigations is crucial if we are to effectively prevent and punish crimes against humanity. However, some aspects of draft article 8 might require further discussion. For example, it is important for states to investigate allegations that their officials have committed crimes against humanity abroad.
The United States believes that draft Article 9 seeks to address important practical issues in securing the detention of alleged perpetrators. However, the United States considers that the draft article merits further consideration in light of other obligations that states may have. For example, a State may have obligations under a SOFA with respect to an alleged perpetrator present in its territory.
With regard to draft article 10, the United States would welcome the inclusion in the draft articles of a provision obligating States, if they have not extradited or extradited an offender present in their territory, to refer the case to the competent authorities for prosecution. . Similar provisions in other instruments have played an important role in helping states prevent and punish other acts prohibited under international law, such as torture. For any future convention on crimes against humanity to be effective, such a provision would, in our opinion, be crucial.
With regard to draft articles 8, 9 and 10, the United States believes that it would be useful to clarify the situation of alleged perpetrators who have already been the subject of real investigation or other action by their State of nationality. It can be a source of international tension if people who have already been genuinely investigated or even prosecuted for allegations of crimes against humanity by their own country are subject to dual or conflicting procedures in another country.
Thank you, Mr. President.