78th Session of the General Assembly
Sixth Committee
Item 80: Crimes against humanity
Thematic Cluster 01 – Introductory Measures
Preamble and Draft Article 01
Statement by the Permanent Representative of Sri Lanka, H.E. Ambassador Mohan Pieris
01st April 2024
Mr. Chair,
An academic contributing to the international criminal law review seeks to present the idea that what we have come to call ‘crimes against humanity’ are in fact also uniquely and shockingly human. They are not situated outside humanity — they are the product of certain distinctive features of the human species. It is hence suggested that crimes against humanity could accurately be called crimes of humanity if ‘humanity’ is understood as a descriptive term capturing what distinguishes human beings from other beings.
However, recognizing the uniquely human origins of crimes against humanity is deeply upsetting as it frequently constitute a painful reminder of our inability, or even unwillingness, to prevent mass atrocity. We therefore, need to grapple with this troubling feeling of cognitive dissonance in the international legal community as part of the reason why the notion of crimes against humanity, which automatically masks the potential complicity of ‘humanity’ in mass atrocity, has been endorsed with much more enthusiasm.
Mr. Chairman,
Draft article one 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, whilst punishment of crimes against humanity is focused on criminal proceedings against persons after such crimes have occurred or even when they are in the process of being committed.
The present draft articles focus solely on the crimes of humanity, which are grave crimes wherever they occur. The present draft articles does not again address other grave international crimes, such as genocide, war crimes or the crime of aggression.
The present draft articles solely on crimes which are gravely international crimes wherever they occur. We do not appreciate however, while the ILC may not directly address these crimes, it does contribute to the development of international law by addressing topics such as state responsibility, treaty law and the protection of human rights during armed conflict.
We might recall that two separate efforts are currently underway to strengthen international cooperation in ensuring national prosecution. Firstly, a multi-year project of the International Law Commission (ILC) to draft articles for a future convention on the prevention and punishment of crimes against humanity, comparable to the existing Genocide Convention and Convention Against Torture. And secondly, an episodic state-led initiative to draft a mutual legal assistance treaty for the most serious international crimes.
Mr. Chairman,
A key issue in establishing state obligations to prosecute international crimes involves the choice of a definition that is appropriate to the obligations that are being imposed. The notion of “crimes against humanity” has a long history, but its definition has evolved over the years. The definition negotiated for the Rome Statute, which created the ICC— an international tribunal with a limited capacity to prosecute and adjudicate— may not unfortunately, provide the right definition for an obligatory system of consistent national prosecution. We believe that the ILC should give this aspect, serious consideration.
My delegation would also however, urge this Assembly that we need to give some thought to the process of attributing conduct which labels someone ‘hostis generis humais’ meaning ‘enemies of humanity’. Why do I say that? I say that for the reason that this classification rises from the substantive character of the evils the criminal inflicts. The expression “hostis” is substantive, and not jurisdictional, says the academics. Therefore, it gives rise to ambiguity; the first ambiguity that we identify is whether the expression is substantive or jurisdictional as a concept. The academics seem to suggest that the word enemy is not a legal expression. We know that the word crime is a legal expression.
The third possibility, it is said that the word “hostes” is to be treated as neither adversary nor criminal and therefore, is not entitled to the rights of belligerents or criminal defendants. Now, that is not a very salutary situation. What then are they entitled to; punishment, or extermination? We are warned that any existing political group that claims to speak in the name of humanity would be acting in a manner repugnant to all tenets of law by denying its enemies the quality of being human; we must take the warning to heart, an academia is of the view that in the final analysis we are getting closer towards what Cicero meant; a universal or cosmopolitan sociey.
Mr. Chairman,
The enemy of all humanity is a person who assaults our very humanity with (nature as political beings through) tyrannical and cruel conduct; that it is worth calling him to account. Universal jurisdiction, therefore, does not rest on the hostes’s location outside of the territorial jurisdiction of states. Establishing such a jurisdiction is what we are engaged in today; is one in which we simultaneously establish a practice of accountability and create norms against radical evil to which anyone, including heads of state, may be held to account. It is a call to the enemy of all humanity to account before humane law, using fair procedures, to re-claim him for humanity, and to affirm humanity, in the teeth of extreme evil.
Mr. Chairman,
The efforts we have far begun today to focus our resources on polishing humanity’s self-image from the stain of atrocity as quickly as possible, I say, is an urgent one.
I thank you, Mr. Chairman.
78th Session of the General Assembly
Sixth Committee
Item 80: Crimes against humanity
Thematic Cluster 03 – National Measures
Draft Articles 06 (Criminalization under national law), 07 (Establishment of national jurisdiction), 08 (Investigation), 09 (Preliminary measures when an alleged offender is present) and 10 (Aut dedere aut judicare)
Statement by the Permanent Representative of Sri Lanka, H.E. Ambassador Mohan Pieris
03rd April 2024
One of the great legal innovations of the post-war world is the concept of crimes against humanity. Aimed at the protection of civilian populations during both peacetime and wartime, even from civilian populations’ own governments, it remains a major pillar of international law to this day. We are today, dealing with the criminalization of crimes against humanity in our national laws.
Mr. Chairman,
My delegation has given careful consideration to draft article six, seven, eight, nine and ten, and wish to state that the criminal law system in Sri Lanka is sufficiently poised to take cognizance of the unlawful activity inclusive of crimes against humanity that is described in these articles and recommendations are presently in place and in the process of consideration, considering the widening in fuller amplitude, the jurisdiction of our courts to deal with these crimes in a befitting manner as best suited to our national requirements.
Mr. Chairman,
There's already national legislation, such as the Geneva Conventions Act, the laws against torture, torture been punishable and offense, and mandates a sentence of not less than seven years, and more not more than ten. The government maintained a committee on the prevention of torture to visit sites of allegations, examine evidence and take preventive measures on allegations of torture. I must also mention the constitutional guarantees against torture, to cruel, inhuman, or degrading treatment.
We also take cognizance of the ICCPR that specifically makes torture illegal. It is my delegations considered view that the victims of crime who have individually or collectively suffered harm, inclusive of physical or mental injury, suffering economic loss, or substantial impairment to their fundamental rights, as the result of crimes against humanity must be compensated by easy access to justice and fair treatment, restitution, compensation, reparations and assistance to regain their humanity and ensure that they live in dignity as members of the human family.
I might mention in passing Mr. Chairman, that Sri Lanka in its post conflict reconciliation process has adopted many measures amongst which it addresses matters of missing persons, reparations, and many other restorative justice mechanisms. Let me say a word about the Latin Maxim, “aut dedere aut judicare”; Sri Lanka does not give refuge to fugitives from justice. That is for sure. Justice in accordance, I mean justice in accordance with rule of law.
We have a robust established extradition jurisdiction exclusively granted to the High Court, which is been invoked frequently. We, however, ensure that any extradition proceedings are consonant with the rule of law. There is a constitutional guarantee to a fair trial to equality before the law, the presumption of innocence, the right to representation and the equal protection of the law. We are proud of a legal system that is over 150 years old, which we inherited from the British, where we ensure that all respondents have the opportunity to be heard and the decisions are based on thorough and unbiased assessment of facts. The rules of natural justice are interwoven into our law in its full measure, the code of criminal procedure and amendments have recognized and established a clear, easily understandable and a predictable procedure for investigations of criminal offences, thereby laying the solid groundwork for a comprehensive investigation and fair trials as mandated by the rule of law.
Mr. Chairman,
The principle of the responsibility to protect reaffirms the primary responsibility of the state to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity. That responsibility is grounded on well-established legal obligations that entail an obligation not only to punish atrocity crimes, but also to prevent them. Such legal obligations can be found in the convention on the prevention and punishment of the crime of genocide in international human rights and humanitarian law, and in customary international law. International courts and tribunals have also cited these obligations and clarified their specific content.
Mr. Chairman,
Finally, we take cognizance of the obligation that member states are under a legal obligation to develop strategies and take measures to protect their populations from atrocity crimes. They can do this individually or through networks, where they support each other in this endeavor.
Individually, we take cognizance of the requirement that states should mainstream an atrocity prevention, lens in their national policies, programs and planning that will contribute to mitigate the risk of atrocity crimes. Sri Lanka as I said, before, is in the process of giving this aspect of the law appropriate consideration. We are sensitive to the need to conduct a regular assessment of atrocity risks at national and local level and improve their understanding and monitoring of risk factors as well as the process that can lead to atrocities and measures to contravene it.
It is in this regard. We consider it important that states partner with other actors, such as international and regional organizations, as well as civil society actors to receive support and amplify their efforts in this regard.
I thank you, Mr. Chairman.
78th Session of the General Assembly
Sixth Committee
Item 80: Crimes against humanity
Thematic Cluster 04 – International Measures
Draft Articles 13 (Extradition), 14 (Mutual legal assistance) and 15 (Settlement of disputes) and the Annex*
Statement by the Permanent Representative of Sri Lanka, H.E. Ambassador Mohan Pieris
03rd April 2024
Mr. Chairman,
On a perusal of articles in cluster four, I couldn't help but remind myself of the quote from the Secretary General of the United Nations who said that “criminal groups have wasted no time racing towards globalized economy and sophisticated technology that goes with it. But if it is to combat them, have remained up to now very fragmented, and our weapons almost obsolete. The Convention (he was discussing the Convention at that time) gives us a new tool to address the scourge of crime as a global problem with enhanced international cooperation”. We can have, he said “a negative impact on the ability of international criminals to operate successfully and can help citizens everywhere in their constant struggle for safety and dignity in their homes and communities”. How true that is.
Mr. Chairman,
This discord clearly brings out the challenges facing all nations today. It seeks to crystallize in these articles. Criminals have embraced the breakdown of traditional barriers of nation states, readily. Then have the governments that promoted and embraced such barriers in the first place. We must remember those who operate outside the law do so because they do not know the bounds of the law. Instead, they capitalize on the new international state of affairs, which allows them a new found flexibility and areas of operation in which they enforce their own, which is well funded and brutal in its price.
States that are called upon to deal with this problem, “have a major role” he said, to play in the process as their flexibility interpreting is their own loss, along with the ability and desire to advise the requesting state on substantive and procedural requirements in their own country and have a major impact on the success or failure of any extradition or mutually legal assistance requests.
Now, the challenges to international cooperation are many and it is against this backdrop that we have to examine the categories of the fourth cluster, and articles that we are examining today. The formulation of the article seems to be a bold attempt, I must say, to respond to the crimes against humanity. However, we must appreciate that the cornerstone in the law of international extradition of the future is from a policy of cooperation between nations.
Now this cooperation has to take into account the difference in the domestic legal systems. Today, we see that the modern day transportation and communication has made it easier for a criminal to seek asylum in foreign nations, which presents a very real danger with the control and suppression of international crime.
My delegation wishes to focus on a few matters that arise out of the present formulation that we see in the articles, for example, the expression - political offenses; we know that there is uncertainty about the definition of political offenses, and that there is no universally acceptable definition of what constitutes political offenses. However, there is generally an accepted rule, which states that the political offences are not subject to international extradition. It is now considered by one authority that political offenses can be broadly defined as an offense against the security of the state so we must appreciate that the concept of prohibiting the extradition of political offenders is a recent development in international law.
Historically, their existed divergence of opinions as to whether a state was under a duty to extradite fugitives from justice to another state. Now, this finally gave rise to bilateral treaties for extradition between friendly states. Then, I also did observe, again, the reference to ‘aut dedere aut jujicare’ – ‘extradite or surrender’. Now, I presume that all these procedures that are set out in the article, is subject to the procedures established by law that one, and that one recognizes the possibility that none of these procedures might bear fruit for good reason.
Now, the underlying principle in this cluster of articles appears to be the object of ensuring that crimes against humanity constitute offenses to preclude certain defenses or any statute of limitation and to provide for penalties that are proportionate with the crime. Now, it is noted that states are required to establish jurisdiction over the offenses covered and when crime occurs in any territory under its jurisdiction. It is also noteworthy that the articles seek to address a situation where there is reasonable grounds to believe that crimes against humanity have been committed, that an investigation be commenced to find out whether the crime has in fact been committed. And if so, government forces under its control, for example, if you take a complaint against the government forces committed the crime or whether the forces under another state or whether if it was a non-state actors who committed such a crime.
So it is clear, that the burden that is cast on the state in these circumstances is no different to the burden casts on established criminal procedure of a democratic state of investigating a transaction we can rise to a reasonable suspicion of an offense being committed. The provision to take a person within jurisdiction into custody to enable extradition or surrender proceedings is of course indeed a salutary provision. More particularly, as it addresses the possibility of further criminal acts being committed at the risk of light and to prevent any interference with the investigation. This again, I presume, would be in terms of the procedures established by law, in a particular jurisdiction. And finally, we have the principle of traditional surrender or the submission to countries competent authorities for the purpose of the prosecution, which sends a clear message to those engaging in crimes against humanity, that they will not be permitted to be fugitives from justice.
So to that extent, the articles are very relevant. There's one article I thought that should be looked into and that is giving the competent authority, the space to directly provide information about offenders. Now, I am not too sure how salutary the provision is, I think it may be good and perhaps it may be prudent to still have some kind of judicial control, some judicial oversight, over that whole mechanism of providing information outside the judicial system, because we know that the judicial authorities will apply more stringent procedures, more stringent safeguards, that a competent authority in the administration, perhaps may not.
Those are the few observations that I wish to make and I can also say that as far as Sri Lanka is concerned, we have a very robust extradition jurisdiction. The jurisdiction is vested in the High Court exclusively, and that is a jurisdiction that is very jealously exercised for the reason that the courts do appreciate the fact that unless it is completely satisfied, that there is good reason for extradition, and the offenses are well made out in the jurisdiction in which the offense is said to have committed, the Courts would perhaps be restrained in making an order for extradition.
I, thank you Mr. Chairman.
78th Session of the General Assembly
Sixth Committee
Item 80: Crimes against humanity
Thematic Cluster 05 – Safeguards
Draft Articles 05 (Non-refoulement), 11 (Fair treatment of alleged offender) and 12 (Victims, witnesses and others)
Statement by the Permanent Representative of Sri Lanka,
H.E. Ambassador Mohan Pieris
04th April 2024
Mr. Chairman,
We focus today on Article five, eleven and twelve which collectively deals with the safeguards as set out in the draft articles. The draft articles focus on the principle of non-refoulement. You will recall that the principle was incorporated in several treaties during the 20th century, including the Fourth Geneva Convention in which common Article Three implicitly includes the obligation on non-refoulement. This principle has been put in place in respect of all aliens and not limited to refugees as popularly thought. The principle of non-refoulement often finds accommodation in extradition treaties. The principle has been recognized in eleven and thirteen that we are considering, suffice to say that this is a salutary safeguard. Then, we have article eleven, which speaks a fair treatment of another defender, including a fair trial and a complete guarantee of its rights under national and international human rights and international humanitarian law.
Mr. Chairman,
It is important to appreciate that the protection of draft article eleven, recognizes the right of such person who is not of the same nationality, who is in custody, and continues to guarantee him that production throughout the proceedings. We might bear in mind that the ICCPR in article fourteen, sets out the standards to be applied to ensure fair treatment and finally we have article twelve, which sets out the all important principle that have not been sufficiently I think, considered until recent times, and that is the protection of victims and witnesses and others to complain of the commission of a crime against humanity that has affected them.
Mr. Chairman,
While many treaties in the 1980s sought to provide for this requirement, it was only in 1998 when the Rome Statute was put in place at the matter of the rights of victims and witnesses were addressed effectively. Regrettably, many treaties did not define the term, allowing states to apply the existing law and practice along as it was consistent with international law.
The 2006 International Convention on the Protection of all persons from enforced disappearances, the convention of cluster munitions referred to victims. It is interesting to note that whilst the 1984 Convention against torture, and other cruel, inhuman and degrading treatment, or punishment, did not define the term victim, it did comment threes and set out three guidance notes on who would be treated as a victim. However, the term victim was available to be understood in terms of the guidance that was available in the rules of the tribunal, such as rule 85A of the rules of procedure of the ICC.
Mr. Chairman,
It would appear that what is left to be considered is a post crime scenario is the accept of reparation for materials and moral damage on an individual or collective basis for restitution for compensation, satisfaction, rehabilitation, and finally, a cessation and guarantee that it will never happen again. In other words, simply put a mechanism for restorative justice. We remember that resolution three of February 46 calling on stage to cooperate in the capture, extradition of war criminals was one of the initial steps. Later that year, we had the Charter of the Nuremberg Tribunal, and its judgment in resolution 95, which was later codified. We then, had the Convention on the Prevention and Punishment of the Crime of Genocide followed by a series of resolutions that culminated with Resolution 3074 in 1973 which set out the principles of international cooperation in the detection, arrest, extradition, and punishment of persons guilty of war crimes and crimes against humanity.
Mr. Chairman,
In 2005 the General Assembly announced a set of basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and a serious violation of international humanitarian law. In 1997, we had resolutions 52/135, we had a group of experts were required to evaluate the existing material, and amongst other things, address the issues of individual accountability. We have thereafter a series of procedures that address this issue in different parts of the world.
This draft, Mr. Chairman, brings home the message that there is no safe houses for those engaging in crimes against humanity, but when apprehended will be afforded the protection of the law.
I thank you, Mr. Chairman.