A Patchwork of Norms: A Commentary on the 1996 Draft Code of Crimes against the Peace and Security of Mankind

Jean Allain¹ and John R.W.D. Jones²

Full text available: PDF format ^*

I. Introduction

The International Law Commission's Draft Code of Crimes against the Peace and Security of Mankind has been half a century in the making. In 1947, the General Assembly of the United Nations requested the International Law Commission (ILC) to formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal and to prepare a draft Code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the Nuremberg principles.³

Although the ILC commenced its work in 1949, and submitted a Draft Code five years later,⁴ the General Assembly did not take any action on the Code until the end of 1981 when it invited the ILC to resume its work.⁵ In 1991, the ILC provisionally adopted the draft articles of the Code and transmitted them to governments for their observations. The adoption of the 1991 Draft Code was, however, complicated by the process of adopting a statute for a permanent criminal court, which the General Assembly had that same year invited the ILC to consider. Thus, the 1991 Draft Code was referred back to the Drafting Committee. Following this Committee's report, the ILC, at its forty-eighth session, held from 6 May to 26 July 1996, adopted the text of a set of twenty draft articles constituting the Code of Crimes against the Peace and Security of Mankind (hereinafter `the 1996 Draft Code' or `the Draft Code').

The history of the Draft Code reveals an important fact, namely that the task of drafting it was commissioned by the General Assembly before many of the normative sources on which it would rely had come into being. Indeed, with the exception of the Hague Convention (IV) of 1907 and the Nuremberg Charter, practically all of the conventional and charter-based sources of international criminal law and international humanitarian law, which substantially, if not entirely, overlap with the subject matter of the Draft Code, have emerged since 1947, in particular the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the Geneva Conventions of 1949 and the Additional Protocols of 1977 thereto, as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984. This posed a fundamental problem for the drafters of the Code. If the Code departed from the texts of these instruments, then it might create contradictions in the law and sow the seeds of confusion. But if it merely reproduced those texts verbatim, then it would be otiose. How then was the Draft Code to coexist alongside these instruments and what use was it to make of them?

The approach taken by the ILC has been to transplant the operative elements of various conventions and instruments, while modifying those provisions where it sees fit. In particular, additional elements have been added to what are already international crimes in order to elevate them to the status of the more serious crimes against the peace and security of mankind. This issue will be taken up in the next section. Unfortunately, however, this activity has not been carried out consistently and it has not had the virtue of rationalizing or simplifying the existing law. Rather, the reverse has occurred, as this article will attempt to demonstrate. It will be submitted that if the Code does not rationalize the existing law into a more coherent corpus, departing from the texts of international instruments only when they are seen to contain imperfections or where the law has since developed, then it will be simpler for national courts or the permanent criminal court to have recourse to those existing instruments and to customary law rather than to the Code. Thus, if its present deficiencies are not redressed, the sad conclusion may be drawn that it is better for the administration of international criminal law if the Code is simply not adopted at all.

^* The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems.

1 Graduate Institute of International Studies, Geneva, Switzerland.

2 ^** Member of the Bar of England and Wales. Assistant Legal Officer at the International Criminal Tribunal for the former Yugoslavia. The views expressed herein are those of the authors and do not necessarily reflect the views of the institutions with which they are associated.

3 GA Res. 177(II), 21 November 1947 (A/177(II)).

4 Yearbook of the International Law Commission 1954, vol. II, pp. 150-152, document A/2673.

5 GA Res. 36/106, 10 December 1981.

© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute.
This file was last modified: Tuesday, October 14, 2003 12:32PM