In 2012-2013, due to the lack of a treaty that obligates States to prevent and punish crimes against humanity, and that calls for inter-State cooperation to that end, I proposed that the ILC undertake drafting articles that could serve as the basis for such a convention. Once the topic was formally launched in 2014, I submitted to the ILC a first report (2015), second report (2016), and third report (2017) proposing text for the draft articles, based on an assessment of State practice, treaties, general principles of law, and jurisprudence. Those proposals were refined in the ILC’s drafting committee, after which I prepared commentary that was developed and adopted in the plenary, allowing for a complete “first reading” package to be sent in 2017 to the General Assembly for reactions.

Over the course of nearly two years (2017 to 2019), the ILC received not only oral comments by States in the Sixth (Legal) Committee of the General Assembly, but also written comments by 38 States, seven international organizations, and more than 700 other persons (to include human rights committees, individuals holding human rights mandates, NGOs, and academics). In my fourth report (2019), I proposed revisions to the draft articles and commentary based on these comments, which were developed and adopted by the ILC at a “second reading.” The final product, consisting of a draft Preamble, 15 Articles, and Annex, along with commentary, was sent to the General Assembly, along with a recommendation that they serve as the basis for the negotiation of a new convention. The General Assembly has now decided to move forward, with preparatory work in 2026-2027 and negotiations in 2028-2029.

The draft Articles can be grouped into five different clusters. The first cluster consists of the draft Preamble and draft Article 1. The draft Preamble comprises 10 clauses, which indicate the reason for and foreshadow the substance of the draft Articles. Draft Article 1 identifies the scope of the draft Articles, succinctly stating that they apply to the prevention and punishment of crimes against humanity.

The second cluster encompasses the definition of crimes against humanity, as well as certain general obligations. Draft Article 2 defines “crimes against humanity.” The ILC discussed carefully what the definition should contain, principally by examining the evolution of crimes against humanity in international law and national laws from Nuremberg to the present. Ultimately, the definition that appears in Article 7 of the Rome Statute was viewed as capturing appropriately contemporary international law, and as one that may appeal not just to the 125 States Parties to the Rome Statute but to other States as well. The objective was not to preclude individual States from having a broader definition in their national laws if they wished to do so (draft Article 2 is without prejudice to such broader definitions), but to find common ground among States, thereby facilitating interstate cooperation on matters such as extradition and mutual legal assistance.

Draft Articles 3 and 4 address general obligations to prevent and punish crimes against humanity. Draft Article 3 contains an obligation for States to refrain themselves from engaging in conduct that, if prosecuted against an individual, would constitute crimes against humanity. Further, Draft Article 3 provides that each State undertakes to prevent crimes against humanity by others which, as the commentary notes, is a due diligence obligation to be assessed in context. Draft Article 4 expands upon the obligation of prevention, calling upon States to adopt appropriate preventative measures (the commentary notes that this may entail, for example, relevant training programs for police and military personnel) and to cooperate with other States, relevant intergovernmental organizations, and, as appropriate, other organizations (for example, the International Committee of the Red Cross).

The third cluster, consisting of draft Articles 6 to 10, indicates specific measures that must be taken by States at the national level to investigate, prosecute, and punish crimes against humanity when they occur. Draft Article 6 requires that crimes against humanity, as such, be constituted as offenses in national law, whether committed directly, attempted, or aided and abetted. Further, draft Article 6 addresses issues such as command responsibility, the impermissibly of a “superior orders” defense, no statute of limitations, punishment by appropriate penalties, and liability of legal persons.

Draft Article 7 requires that the State be in a position to exercise jurisdiction over an alleged offender when the offense occurs in a State’s territory (or territory under its jurisdiction), when it was committed by one of the State’s nationals, or when the alleged offender turns up in the State’s territory. If a State wants to exercise jurisdiction when a victim of the alleged offense is of its nationality, it can do so, but that jurisdiction is not mandatory.

Draft Article 8 provides that, if a potential situation involving crimes against humanity arises within a State’s territory, the State must investigate it. Such an investigation is not about targeting a specific individual; rather, it involves taking investigative steps to understand what may be occurring in a particular location, and may concern actions carried out by non-State actors. By contrast, draft Article 9 focuses on the apprehension and gathering of facts with respect to a particular individual. If someone within the State’s territory is suspected of committing crimes against humanity, the State is required to take that person into custody or otherwise prevent him or her from fleeing. The State must then conduct a fact-specific inquiry into the individual’s actions, essentially compiling a dossier detailing the basis for the suspicion. In addition, the State must notify other States that may also have jurisdiction over the case, recognizing that such notification may be important for mutual legal assistance or extradition.

Draft Article 10 obliges the State to submit the case for prosecution or to extradite the suspect to a State prepared to submit the case to prosecution. This aut dedere aut judicare obligation requires handing over the dossier to prosecutors, who retain the discretion to determine whether the case is suitable for prosecution. At the same time, this obligation can be satisfied by extraditing the individual to another State willing to submit the matter to prosecution.

The fourth cluster addresses international measures. Draft Article 13 indicates procedures for facilitating extradition if a State chooses to extradite an alleged offender to another State (notably, there is no obligation to extradite). Draft Article 14, as well as the draft Annex, address mutual legal assistance between States. In essence, these provisions help facilitate cooperation whenever a State requires another State’s assistance in gathering witness testimony or documentary evidence, or in enabling witnesses to travel cross-border to testify in a trial. If the two States already have a mutual legal assistance treaty (MLAT), draft Article 14 and that MLAT would be used. The Annex applies when there exists no MLAT between the two States.

Draft Article 15 addresses inter-State dispute settlement. Similar to the Convention on the Prevention and Punishment of the Crime of Genocide, this draft article provides that, if one State has a disagreement with another regarding the interpretation or application of the convention, it can raise the issue with the other State. Both States are then obligated to attempt to negotiate a resolution to the dispute. If no settlement can be reached, the matter may be referred by either State to compulsory dispute resolution at the International Court of Justice (ICJ). However, the third paragraph of draft Article 15 allows a State to opt out of such compulsory jurisdiction.

The fifth cluster focuses on certain safeguards protective of individuals. Draft Article 11 addresses the fair treatment of alleged offenders, including guarantees to a fair trial, access to legal counsel, and other fundamental protections commonly found in human rights law and domestic legal systems. Draft Article 12 focuses on protections for the victims, witnesses, and certain others affected by crimes against humanity. Such persons must be permitted to file complaints with government authorities without ill treatment, and victims shall be allowed to present their views at appropriate stages of the criminal proceedings. Moreover, draft Article 12 affirms the right of victims to seek reparation, though it does not specify the form that such reparation should take, or require that reparation be provided on an individual (as opposed to collective) basis. Draft article 5 contains a non-refoulement obligation; States are prohibited from returning 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.

The ILC considered several other matters that might have been included in the draft Articles but ultimately did not include them. For example, while the U.N. Secretariat produced an excellent memorandum in 2016 on existing treaty-monitoring mechanisms, the ILC opted not to include such a mechanism, seeing that as a matter best left for States to decide. Indeed, the draft articles are now in the hands of States, who I look forward to assisting as a U.N. expert during the negotiations.

The post Overview of the ILC Draft Articles for a Crimes Against Humanity Convention appeared first on Just Security.

Harold Hongju Koh is one of the most accomplished international and U.S. foreign relations lawyers of his generation. Since publishing his first book, The National Security Constitution: After the Iran-Contra Affair (1990), he has served as the Department of State’s Legal Adviser, among other posts, and as Dean and then as Sterling Professor of International Law at the Yale Law School; in addition, he has litigated some of the most important international and foreign relations law cases of our time. It is only natural to expect that these experiences, and other intervening developments, might have shaped his thinking, and we are fortunate that he has reexamined his first book’s topics in view of that experience, resulting in The National Security Constitution in the 21^st Century (2024). Koh’s new book is required reading for anyone interested in how U.S. foreign relations law is practiced in the United States and, more importantly, how those practices might be sensibly revised.

We focus here on one such practice, in which the president acts to withdraw the United States from international agreements. This issue was controversial when Koh first wrote and remains so—not least because, as Koh emphasizes (pp. 217-25), President Donald Trump withdrew from important agreements, such as the 1987 Intermediate-Range Nuclear Forces (INF) Treaty and the 1945 UNESCO Constitution, and threatened withdrawal from others, such as the 1949 North Atlantic Treaty that created NATO. The merits of this issue were not resolved by the Supreme Court’s 1979 decision in Goldwater v. Carter, and Koh expresses misgivings about claims of presidential unilateralism that have flourished in its wake, including aspects of the position adopted in the Restatement (Fourth) on the Foreign Relations Law of the United States (on which one of us served as a co-reporter).

To rectify matters, Koh urges adoption of a “‘mirror principle,’ whereby the degree of congressional approval needed to exit from an international agreement mirrors the degree of congressional approval needed to enter into that agreement in the first place” (p. 311). “[N]eeded” appears to mean either in theory or in practice, turning on “the subject matter of the agreement at issue and the degree of congressional approval involved in the entry into that agreement” (pp. 312-13; emphasis in original). The president would thus be disabled from acting unilaterally to withdraw from an agreement that the executive could not have made on its own (Koh gives the example of 1994 NAFTA) or, regardless of what might be constitutionally permissible, from an agreement that actually was made in the form of a congressional-executive agreement or treaty. Perhaps stretching the concept of “mirror” a bit, Koh maintains that even some international agreements that at the outset lacked formal congressional approval, like the 2015 Paris climate accord or the 2015 Iran nuclear deal, would by virtue of “legitimate congressional expectations” be removed from those the president could act unilaterally to exit (p. 313). Koh accepts that sometimes political exigencies may require a “quick divorce,” but favors only a presidential power to unilaterally suspend the agreement, thereafter securing whatever approval for termination a mirroring principle requires (pp. 221-22, 314-15).

As Koh recognizes, the U.S. Constitution’s text neither requires nor forecloses this “mirror” approach. The Constitution specifies how “treaties” are made (Article II, § 2), but says nothing about how other international agreements are made, and is entirely silent on the issue of exit. If one considers the constitutional drafting and ratification history, one finds an emphasis on the status of treaties as “supreme law of the land” (as Koh stresses, p. 222), but also finds a strong desire for the U.S. government to act in relation to treaties through the president with uniformity and dispatch, and finds no evidence of a “mirror” concept. Post-ratification practice does not embrace a “mirror approach.” We are aware of no case that ultimately reached such a conclusion (nor does Koh cite to one). The foundation of the modern controversy, President Jimmy Carter’s abrogation of the 1954 U.S.-Taiwan Mutual Defense Treaty, received real pushback in the form of litigation by some congressional members, but no formal action by the Senate or Congress as a whole in opposition. Something similar happened in 2002, when President George W. Bush withdrew from the 1972 Anti-Ballistic Missile (ABM) Treaty, which only resulted in an (equally unsuccessful) lawsuit by some members. In the Goldwater litigation, the D.C. Circuit—in a decision vacated, of course, by the Supreme Court—directly rejected mirroring, either as a description of historical practice or as an appropriate judicial rule. In approximately two dozen instances since then, the president has acted unilaterally to withdraw from international agreements of all types, without formal congressional opposition. To this might be added the Senate’s repeated consent to treaties (and Congress’ repeated consent to congressional-executive agreements) that contain articles specifically allowing for termination or withdrawal by a party (such as the Taiwan and ABM treaties), without any condition that the Senate (or Congress) be involved in such a decision. It is important to acknowledge, as Koh stresses (pp. 219-20), that congressional failure to act does not necessarily mean constitutional acquiescence, but none of the institutions involved seem committed to a “mirror” rule. It remains the case, just as the D.C. Circuit Goldwater majority said, that “in no situation has a treaty been continued in force over the opposition of the President.”

As such, we are hesitant about the strong claim that “U.S. constitutional jurisprudence has long acknowledged that withdrawing from international agreements should be dictated by a mirror principle” (p. 312). The last-in-time rule, holding that conflicts between a statute and a treaty should be resolved in favor the later-in-time instrument, which Koh invokes to support his mirror principle (p. 312), itself suggests a warp in any mirror. Under that rule, the Senate and president may, through a treaty, supersede a statute previously enacted by Congress as a whole; the statute need not be repealed by Congress. Likewise, a congressional majority (or supermajority, if overriding a veto) may supersede a treaty previously approved by two-thirds of the Senate; exit from the treaty need not be consented to by a Senate supermajority. Given the perceived equivalence for this purpose of treaties and statutes, Koh is correct (p. 312) that it is somewhat anomalous to allow the president to repeal the “law of the land” when it is in the form of a treaty but not in the form of a statute. But the treaty process itself is anomalous as compared with the statutory process. And, in any event, the last-in-time rule simply does not address the question of when, or by whom, a valid source of law may be terminated (for example, the rule does not preclude a court from striking down a statute). We tend to agree with Koh (p. 312) and others, like Kristen Eichensehr, that presidential authority over appointments is not precisely comparable to the issue of terminating international agreements, but presidential authority in relation to treaties and other agreements is distinct from the presidential role in legislation as well.

Should we embrace a mirroring principle nonetheless? Koh’s argument is addressed not just to the courts but also to executive branch officials, who can chart such a course even if they strenuously resist its enforcement by the judiciary. There may be much greater consensus here. First, everyone apparently agrees that the executive branch can unilaterally terminate an agreement when Article II powers were the sole, and a constitutionally sufficient, basis for entering into it.

Second, although Koh does not directly address the issue, there may be consensus that the president can unilaterally terminate an agreement if he or she determines that the agreement has ceased to be binding on the United States as a matter of international law, such as due to another state’s conduct (e.g., material breach), due to circumstances such as force majeure or impossibility, due to the effects of armed conflict, or due to a superseding later-in-time treaty or rule of customary international law. Likewise, there may be consensus that the president can unilaterally terminate an agreement that is no longer consistent with U.S. law, such as due to the adoption of a subsequent statute that is flatly inconsistent with the agreement. In all such instances, unilateral presidential termination appears fully consistent with the Constitution, including the president’s obligation to take care that the law be faithfully executed.

Beyond these circumstances, situations of exit are not best resolved through a single principle but, rather, a more fact-sensitive approach. The issue has not been joined, but Koh and the Restatement (Fourth) both suggest that Congress or the Senate might limit presidential termination, at least when they indicate as much in authorizing the agreement, if not through a later statute (as was done in relation to potential withdrawal from the North Atlantic Treaty). Possibly, Congress or the Senate might register such limitations implicitly, though it is highly likely that there would be debates about whether that has happened. If the executive ever acted in disregard of such limits, that would appear to establish a conflict falling into Justice Robert Jackson’s third Youngstown category—in which the president acts in a matter incompatible with the express or implied congressional will—which is quite unfriendly to presidential authority. Further, it would likely create problems for the executive in securing future consent from Congress for new international agreements. Conversely, Congress or the Senate might authorize unilateral presidential termination, in which case such termination should not require mirroring at the point of exit.

The most common situation is when Congress or the Senate is silent when approving an agreement. Often the agreement will contain a termination clause, as was invoked by Carter when terminating the Taiwan treaty and debated in the Goldwater litigation. If viewed as an explicit or implicit delegation to the president of a power to terminate unilaterally, then this situation would fall into Jackson’s second category (in which the president acts absent either a congressional grant or a denial of authority, permitting some capacity to act independently) at worst or his first category (in which the president acts with express or implied congressional authorization, putting executive authority at its maximum) at best. Most recent presidential terminations (the ABM treaty, the Paris climate accord, the INF treaty) have in fact been effectuated by the president pursuant to a termination clause in the agreement. Some agreements do not contain a termination clause—the U.N. Charter or the International Covenant on Civil and Political Rights being examples. Here the president cannot rely on any explicit or implicit delegation based on a termination clause, but perhaps can do so based on the international law of treaties, of which Congress and the Senate are aware. Under that law, there is essentially a presumption (reflected in Article 56 of the Vienna Convention on the Law of Treaties) that a party cannot withdraw unless it can be established that the parties intended to admit the possibility of such withdrawal or it can be implied from the nature of the treaty. That presumption might place unilateral presidential termination in Jackson’s third category, while successful invocation by the president of the exceptions might place it in either the first or second categories.

For all cases in which the president is acting consistent with a treaty termination clause or with background rules found in the law of treaties, we think it is best to avoid describing such termination as “agreement breaking” (Koh’s term), since the proposition in question is how the United States, as a matter of U.S. law, may exit from an agreement when doing so is in full compliance with international law.

As a practical matter, the mirroring principle would shift focus from termination proper to whether the underlying agreement formally involved congressional or Senate approval, or generated congressional “expectations” of some kind. If the ideal outcome is greater inter-branch cooperation in making international agreements, we are wary of a principle that tends to discourage such cooperation at the outset—in effect, telling the executive branch that if it secures legislative authorization or other support to bolster the legal or political grounds for entering into an agreement, the executive will be encumbering its ability to terminate that agreement. At present, there is some beneficial “play in the joints” (p. 331) for agreement-making. Whether an agreement falls outside the president’s unilateral capacity, and instead involves congressional subject-matter authority or requires Senate approval as an Article II treaty, is sometimes unresolved when the United States enters into an agreement—not least because of disagreement about whether there is implicit legislative authorization of some kind. A mirroring principle might reduce such flexibility, perhaps ultimately encouraging the president to make increasingly aggressive claims that he or she can go it alone when making international agreements. Moreover, if that issue has to be resolved whenever the president decides to terminate unilaterally, even when Congress raises no objection to such termination decision, it might lead to distracting doubts in the United States and abroad about whether the agreement was lawful in the first place.

On balance, a mirroring concept serves better as part of an aspiration for greater inter-branch cooperation in making and unmaking international agreements, rather than as a legally-enforceable rule. Prevailing law and practice is far more differentiated and fact-sensitive on this issue—a conclusion we think is quite consistent with Koh’s overall, compelling objective of avoiding a rigid rule whereby the president can always terminate agreements unilaterally.

IMAGE: The Harry S. Truman Federal Building, headquarters of the U.S. Department of State, is pictured on October 08, 2024 in Washington, DC. (Photo by Kevin Dietsch/Getty Images)

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The Department of Defense Law of War Manual (June 2015; updated July 2023)  (Manual) impressively catalogues, over more than 1,200 pages, the U.S. Department of Defense’s position on the law of war, including on the conduct of hostilities, weapons, the treatment of prisoners of war, military occupation, neutrality, and cyber operations. In explaining the rules and policies that are to guide DoD personnel, the Manual relies heavily on treaties and customary international law, which prompts consideration as to the methodology used when applying those sources, and whether improvements to the Manual are warranted in that regard.

As discussed further below, such improvements could include, for example, explaining the interrelationship of the law of war with fields such as international environmental law or the law of the sea; identifying the practical implications in this area of the concepts of jus cogens and “specially affected” States; and addressing whether a major multilateral treaty can lead, over time, to the emergence of customary rules binding upon even non-parties to the treaty and, if so, whether that has happened for the United States with respect to the most significant rules of the law of war.

Methodology for Determining U.S. Treaty Obligations

Several components feature in the methodology used by the Manual when applying treaties. First, the Manual properly recognizes the relevance of the United States being a party to the treaty and, if a non-party, whether the United States is a signatory. Indeed, a documentary appendix to the Manual (pp. 1161 et seq.) identifies the relevant treaties to which the United States is a party, such as the 1907 Hague and 1949 Geneva Conventions and the Biological Weapons Convention. Further, the appendix notes examples of treaties signed but not ratified by the United States, such as Additional Protocols I and II to the 1949 Geneva Conventions (API and APII), the Vienna Convention on the Law of Treaties (VCLT), and the Rome Statute of the International Criminal Court, as well as examples of treaties that the United States has neither signed nor ratified, such as the Ottawa Landmines Convention. (At § 19.2.3, it erroneously lists the United Nations Convention on the Law of the Sea as “signed but not ratified”; the United States has done neither.) Certain treaties and documents of historical value are also listed, such as the Lieber Code adopted during the U.S. civil war. All these instruments feature, to a greater or lesser degree, throughout the Manual.

Second, the Manual considers the relationship of treaties inter se. For example, the Manual properly identifies that later-in-time treaties of the United States can overtake earlier treaties, in relations between the parties, such as the 1949 Geneva Conventions vis-a-vis their forerunners (pp. 1185-87). Further, the Manual considers the relationship between law of war treaties (and other rules) and treaties arising in other areas of international law, notably international human rights law (IHRL) (§ 1.6.3), with an emphasis on law of war rules being the lex specialis (§ 1.3.2.1) and on interpretive constructions that avoid conflicts (§ 1.3.2.2). Greater attention in this regard might be paid to other fields of international law, such as international environmental law, which may both inform law of war instruments (such as the meaning of the term “environment”) and conflict with them (for an effort to harmonize, see the International Law Commission (ILC)’s 2022 Principles on Protection of the Environment in Relation to Armed Conflicts, with commentary, and the ICRC’s 2020 Guidelines on the Protection of the Natural Environment in Armed Conflict). Further, greater attention might be paid to the potential application of other fields when armed hostilities are not directly at issue – such as during a lengthy military occupation, during a “peace operation” (i.e., deployments intended to monitor a peace but that may entail a use of force), or during post-conflict remediation on land or at sea (e.g., clearing mines or remnants of war) – where the application of the law of war as lex specialis seems less obvious. Such attention may be warranted, at a minimum, so as to educate DoD personnel as to the views that coalition partners might take in certain situations.

Third, the Manual properly identifies situations where the United States, although a party to a treaty, has taken a reservation (such as to CCW Protocol III on Incendiary Weapons, see § 6.14.3.2), has issued an understanding (such as to CCW Protocol IV on Blinding Laser Weapons, see § 19.21.5), or has issued some other kind of statement (such as a certification to Congress that the Chemical Weapons Convention does not prevent the use of riot control agents in certain cases, see § 6.16.2).

Fourth, the Manual recognizes that, under VCLT Article 18, a signatory (even though a non-party) “is obliged to refrain from acts which would defeat the object and purpose of a treaty” (p. 1165, fn. 35). Yet that recognition does not actually feature in the Manual’s analysis of the U.S. relationship to specific provisions of relevant treaties, such as API and APII, both of which the United States has signed. A State can avoid the effects of VCLT Article 18 by making “its intention clear not to become a party to the treaty,” but the U.S. government apparently has not informed the depositary for API or APII (the Swiss Federal Council) that it no longer intends to ratify such conventions, and no notation to that effect appears on the ICRC’s website. Perhaps the U.S. intention not to ratify API is regarded as clear from the Reagan Administration’s well-known decision not to submit it to the Senate (“Protocol I is fundamentally and irreconcilably flawed”), but APII was submitted, and statements as recent as 2020 indicate a continuing Executive Branch desire to become an APII party. In short, the Manual recognizes the relevance of VCLT Article 18, but does little to clarify for DoD personnel its application in practice.

Fifth, the Manual identifies a few other relevant aspects of the law of treaties, such as the possibility of U.S. withdrawal (§ 1.7.3), but other aspects are neglected that might be helpful to DoD personnel, including rules on observance and application of treaties (VCLT Arts. 26-30). The most noticeable is the lack of attention to the methodology for interpreting treaties (VCLT Arts. 31-33). One element of the interpretive process is highlighted in the Manual – the use of subsequent practice in treaty interpretation (§ 1.7.4) – but even there the analysis could be improved by noting the importance of determining whether that practice is of all the parties to the treaty, with practice comprising both action and (in some circumstances) inaction. The ILC’s 2018 Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties is a useful recent assessment of this particular interpretive element. A future revision of the Manual might also take into account the 2018 Restatement (Fourth) on the Foreign Relations Law of the United States, which addresses in depth the U.S. position on treaty law.

Sixth, where the United States is not a party to a treaty, the Manual occasionally identifies situations where provisions of the treaty remain relevant (see § 3.1), notably: (a) where the provision is also incorporated in other treaties to which the United States is a party (e.g., API Art. 52, §§ 5.4.3.4, 5.6.3); (b) where the provision reflects customary international law (e.g., the VCLT, § 19.18, which is then relied upon about 20 times in the Manual); (c) where the provision is consistent with long-standing U.S. practice (e.g., API Art. 36, § 6.2.3); (d) where the United States supports the provision as a matter of national policy, always or at least in some contexts (e.g., API Art. 75, § 8.1.4.2); or (e) where the provision represents “modern international public opinion” (§ 3.1.1.1).  A future revision might more systematically consider whether any such situation applies for the most salient provisions of law of war treaties, especially API and APII.

Conversely, the Manual indicates some provisions of treaties to which the United States is not a party and to which it objects, such as provisions within API on reprisal, on certain environmental protection, or on works and installations containing dangerous forces. Alas, the Manual does not provide a comprehensive list of the treaty provisions to which the United States objects. A comprehensive list might have benefits (especially with respect to API and APII) in helping to maintain a persistent objector status (see below) and for informing DoD personnel as to the existence of the objections. At the same time, a comprehensive list might be difficult to complete and may even inhibit DoD’s position from evolving over time. If so, the next version of the Manual might at least contain a non-exhaustive list of the most significant treaty provisions to which the United States objects, perhaps with text explaining the possibility for their withdrawal in the future.

Finally, even where a treaty, other rule, or policy does not apply, the Manual does not approach the matter as presenting a vacuum (a non liquet) in which anything goes. Rather, it takes the well-advised approach that, even if an express prohibition is lacking, “the principles of the law of war form the general guide for conduct during war” (e.g., §§ 1.3.3.1, 1.7.3, 1.8.1, 2.1.2.2), at times referencing the Martens clause (§ 2.1.2.3). In this regard, the Manual could be clearer as to whether it regards such “principles” as emanating solely from treaty or customary international law (implied by the opening text of § 1.3) or as arising from the third main source of international law, general principles of law recognized by States (indicated by § 2.1.1.), given that the latter requires a very different methodology for its identification (see U.N. Doc. A/CN.4/L.982 (2023)).

Methodology for Determining U.S. Customary International Law Obligations

The Manual explains the two traditional components for identifying a rule of customary international law: a general and consistent practice of States in conjunction with opinio juris (§ 1.8). In the context of assessing State practice, the Manual properly stresses the importance for the law of war of assessing actual operational practice (as opposed to simply manuals or official statements) (§ 1.8.2.2), but the Manual should recognize other forms that State practice can take, such as “diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; conduct in connection with treaties; executive conduct . . . ; legislative and administrative acts; and decisions of national courts (see ILC’s 2018 Conclusions on Identification of Customary International Law, Conclusion 6(2)). Moreover, it could note that there is no hierarchy as among these forms of practice (id., Conclusion 6(3)).

Other traditional concepts concerning customary international law are presented, but might be improved. The concept of the persistent objector – incapable of preventing the formation of a rule of customary international law, but capable of preventing that rule from applying to the objecting State – is well captured (§§ 1.8.2.4, 1.8.4). Yet some attention should be paid to the concept of jus cogens (peremptory norms of general international law), which is commonly viewed as including “the basic rules of international humanitarian law” and as precluding persistent objection (see ILC’s 2022 Conclusions on Jus Cogens, Annex, para. (d)). The Manual could, for example, acknowledge the concept of jus cogens and its application to “basic rules,” but then indicate what DoD regards those rules to be. Separately, the concept of “specially affected States” has a certain lineage in case law and doctrine (§ 1.8.2.3), but today many States view it as a difficult concept to apply in context, even with respect to the law of war (given that all States, to a greater or lesser degree, tend to be affected by warfare). For some States, that concept is simply a gambit for the major powers to claim a veto or other forms of influence over the emergence of a rule of customary international law. Interestingly, the Manual notes but does not appear to employ the concept in any specific context.

The Manual’s consideration of the important relationship between treaties and customary international law might also be seen as lacking, and here two aspects bear noting. First, the Manual approaches the issue statically, regarding a treaty provision as: reflecting custom; not reflecting custom; or reflecting custom but not precisely (§ 1.8.1.). The principal lacuna here is the failure to consider the emergence of custom over time. As classically stated by the ICJ in the North Sea Continental Shelf cases (paras. 60-62, 71), a treaty at the outset might codify customary international law or might crystalize a customary international law rule that had not yet fully emerged, but a major multilateral treaty might also lead to the emergence over time of rules of customary international law. Indeed, this possibility is recognized in the Judge Advocate General (JAG)’s Operational Law Handbook (2022) when it says: “IHRL treaties can codify existing customary IHRL. Conversely, practices established in treaties can ripen into customary IHRL.” Yet in the Manual, this possibility is unaddressed. Thus, it is not really sufficient, when considering which armed groups are part of a State’s armed forces, to say that API did not codify customary international law as of 1977 (§ 4.6.1.2); whether or not that is true, the question is whether today – almost 50 years later, in light of 174 ratifications/accessions, and the application of API in many respects even by non-parties – API Articles 1(4) and 43-44 reflect contemporary customary international law. It may not, or if it does the United States may be a persistent objector to such provisions, but the dynamic temporal aspect of custom formation should be considered.

Second, the Manual maintains that certain IHRL treaties do not apply extraterritorially (§ 1.6.3.3) or apply only in territory under U.S. jurisdiction (§ 1.6.3.4), but does not make a point of informing DoD personnel that some U.S. military manuals have taken the position that customary IHRL does apply extraterritorially. For example, the Judge Advocate General (JAG)’s Operational Law Handbook (2015) provides: “In contrast to much of human rights treaty law, fundamental customary IHRL binds a State’s forces during all operations, both inside and outside the State’s territory.” If such a handbook reflects DoD’s position, this should be acknowledged in the Manual, and pertinent IHRL treaty rules should be assessed as to their status as custom. Any concerns regarding overly broad coverage of customary human rights law might be cabined by reference to non-derogable human rights or to a listing such as that found at § 702 of the Restatement (Third) on the Foreign Relations Law of the United States.

Of course, when identifying a rule of customary international law, the evidence relied upon is critical. The Manual admirably explains its methodology: for the types of evidence selected; for incorporating footnotes; and for signals within footnotes, such as the meaning of “see,” “see also,” or “consider” (§ 1.2). Yet the Manual’s actual use of the evidence cited might be more rigorous. For example, at times, the Manual neglects to recognize that the United States has already acknowledged a particular rule as customary in nature (such as Article 3(8) of the Amended Landmines Protocol, addressed at § 6.12.5.2), or fails to capture what the cited evidence actually says (such as the Manual habitually referring to taking “feasible precautions,” when the cited evidence often says “all feasible precautions”).

In any event, the evidence relied upon in the Manual (other than treaties) is dominantly from within the United States, whether it be U.S. government statements, laws, cases, or secondary sources. This is not to say that foreign evidence is excluded; it is used, but sparingly and thus unevenly. A focus primarily on U.S. sources is understandable if the purpose of the Manual is solely to explain the DoD position on customary law of war (§ 1.1.1). Moreover, the focus is understandable given that a broader approach could lengthen the Manual (perhaps considerably) and increase the difficulty of the exercise, given the enormous range of foreign sources, including those not in English.

Yet, in this era of inter-State coalitions and partnerships, more treatment of foreign sources should be considered, including the positions taken by foreign governments, the ICRC, or international courts and tribunals, so as to guide DoD personnel as to the views of others. Moreover, it must be acknowledged that, by focusing primarily on U.S. sources, the Manual limits its significance. The Manual is clearly an example of DoD practice – pertinent for guiding DoD personnel and pertinent for others who might add this unit of U.S. practice to the practice of the United States as a whole, and then to that of other States, so as to identify a rule of customary international law. Yet the Manual cannot be seen as a subsidiary source of international law; it does not itself demonstrate the existence of rules of customary international law. Perhaps the most unfortunate aspect of this limitation is that, where the Manual expressly takes exception to a particular rule as constituting customary international law, there is no or little explanation as to why that is the case, for a standard customary international law analysis (assessing contemporary State practice and opinio juris on the issue) is not undertaken.

Conclusion on How the Manual’s Methodological Approach Might Be Improved

The above suggests a few ways that the Manual might be improved in its methodological approach to treaties and customary international law. The most important areas for greater guidance might be on: (1) the interrelationship of the law of war with other fields of international law, beyond IHRL, such as international environmental law, law of the sea, international criminal law, and law of immunity – including in situations where active hostilities are absent; (2) the significance in practice, if any, of VCLT Article 18, especially as it relates to API and APII; (3) rules concerning the observance, application, and interpretation of treaties; (4) the practical implications in this area of the concepts of jus cogens and “specially affected” States; (5) whether a major multilateral treaty can lead, over time, to the emergence of customary rules binding upon even non-parties to the treaty and, if so, whether that has happened for the United States with respect to the most significant rules of the law of war and IHRL treaties; and (6) whether certain rules of IHRL, though not applicable extraterritorially as treaty law, nevertheless regulate extraterritorial conduct as customary international law.

More generally, for the most salient provisions of the law of war (including those found in API and APII), consideration might be given to applying systematically a checklist that goes beyond simply asking whether the United States is a party to the treaty, but also asks whether the provision: (a) is incorporated in other treaties to which the United States is a party; (b) reflects customary international law; (c) is consistent with long-standing U.S. practice; (d) is supported by United States as a matter of national policy; or (e) represents “modern international public opinion.”

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When the International Law Commission (ILC) embarked in 2014 on its project of drafting articles for a Convention on the Prevention and Punishment of Crimes against Humanity, it had various goals in mind. One central goal was to craft a balanced text that would prompt States to do better in adopting national laws and national jurisdiction concerning crimes against humanity (and in developing inter-State cooperation on the issue), while at the same time respecting certain limits on what States would likely accept in a new convention.

Indeed, from one vantage point, the commission could have adopted a far-reaching treaty text, loaded up with all sorts of “wish list” items, so as to articulate highly progressive legal policy, yet knowing that States likely would not adopt such an instrument. From another vantage point, the commission could have pursued simply a statement of “guidelines,” “principles,” or “conclusions” that would be easy for the commission alone to adopt, but leading to an outcome that would not directly bind States to legal rules.

Instead, the commission steered a different path, aiming for the harder outcome of a legally binding treaty, but one based on draft articles that States might embrace as practical, feasible, and valuable. Various consequences of this path may be seen in the ILC’s 2019 draft articles and their commentary.

First, the draft articles are focused on a clear gap in international criminal law, which is the lack of any convention on crimes against humanity (unlike for genocide or war crimes) addressing national laws/jurisdiction and inter-State cooperation. If States wish to continue advancing international law in this area, adopting a treaty on this issue is one way to do so.

Second, the draft articles are limited to the most important areas where improvement in State conduct is needed. The 15 draft articles consist of straight-forward, unadorned provisions that succinctly target discrete areas of prevention, punishment, extradition, mutual legal assistance, and dispute settlement.

Third, the draft articles rely extensively on provisions that States have accepted previously in widely-adhered-to treaties, such as the 1984 Convention against Torture and the 2003 Convention against Corruption. Every provision in the draft articles has a direct lineage in existing treaties, as may be seen in the ILC’s commentary. As such, there is nothing unusual about the ILC’s text; the only thing new is the application of such provisions to crimes against humanity.

Fourth, the draft articles are not dependent upon a State’s adherence to any other treaty. For example, States Parties to the Rome Statute could join a convention based on the draft articles, as doing so would enhance complementarity in the functioning of the International Criminal Court (ICC). Yet States that are not parties to the Rome Statute equally could join a convention based on the draft articles, since the draft articles have no direct connection to the ICC.  Similarly, mutual legal assistance provisions in the ILC’s draft articles are crafted so as to allow States to use whatever mutual legal assistance treaties (MLATs) they already have vis-à-vis other States; only if no such MLAT exists do the detailed provisions of the ILC’s draft annex on mutual legal assistance come into play (draft article 14, para. 8).

Fifth, particularly where the draft articles touch upon sensitive areas, the text was very carefully drafted:

• Do States have an obligation to prevent crimes against humanity? Yes, but only “in conformity with international law” (draft article 4), meaning that international rules on the use of force are not affected.
• Should the draft articles address immunity or amnesties? No, because treaties of this kind do not do so. But the draft articles do include a provision that a person’s official position is not a ground for excluding criminal responsibility (draft article 6, para. 5), meaning that if no immunity or amnesty exists, responsibility can exist even for senior leaders.
• Should the draft articles address corporate liability? Yes, but only in a way that recognizes how States differ considerably as to whether legal persons can commit crimes, as opposed to being fined or dissolved for the criminal behavior of its officers (draft article 6, para. 8).
• Is there an obligation to extradite? No, since some States do not wish to extradite persons to certain other States, but there is an obligation to submit to prosecution an alleged offender found in a State’s territory; if that State wishes to extradite, there are provisions to ease that process (draft article 13).

Whether the ILC struck the right balance remains to be seen. The first step is for States to decide whether to move forward in launching a negotiation process so as to amend as necessary and transform the draft articles into a convention: for the ILC to have crafted draft articles largely acceptable to States is helpful in that regard.

Yet even if that step is taken, and a convention is adopted, whether the right balance was struck will still be tested. For the ultimate goal is not to just have a convention, nor even to have widespread adherence to it, but to have a convention that meaningfully and effectively increases the prevention and punishment of atrocities.

IMAGE: Syrian defendant Eyad al-Gharib, accused of crimes against humanity in the first trial of its kind to emerge from the Syrian conflict, arrives to hear his verdict in the courtroom on February 24, 2021 in Koblenz, western Germany. Al-Gharib, 44, a former Syrian intelligence service agent, was sentenced to four and a half years in jail for complicity in crimes against humanity in the first court case over state-sponsored torture by the Syrian government. (Photo by THOMAS LOHNES/AFP via Getty Images)

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First, the Commission completed its work on the topic “identification of customary international law,” which consists of sixteen “conclusions” and commentaries. These conclusions concern the methodology for identifying rules of customary international law, and are designed to offer practical guidance, not just for specialists in public international law, but for others as well, including national court judges.

Conclusion 2 confirms the basic two-element approach; that to “determine the existence and content of a rule of customary international law, it is necessary to ascertain” (1) a general practice (2) that is accepted as law (opinio juris). As to the practice that is relevant, Conclusion 4 says that it is “primarily” the practice of States that contributes to the formation of customary rules but that, in certain cases, the practice of international organizations also contributes. By contrast, conduct of other actors—including corporations, non-governmental organizations, or organized armed groups—is not “practice” that contributes directly to the formation of such rules, though it may elicit reactions by States or international organizations that would constitute relevant practice. The uncertain role of international organizations in making such contributions led the Commission, in its commentaries, to indicate that “caution is required in assessing the weight of the practice of an international organization as part of a general practice.”

Conclusion 8 maintains that the “relevant practice must be general, meaning that it must be sufficiently widespread and representative, as well as consistent.” The commentary indicates that “the practice should be of such a character as to make it possible to discern a virtually uniform usage” (Conclusion 8, commentary para. (2)). Moreover, the commentary provides that “an indispensable factor to be taken into account is the extent to which those States that are particularly involved in the relevant activity or are most likely to be concerned with the alleged rule (‘specially affected States’) have participated in the practice” (Conclusion 8, commentary para. (4)).

Conclusion 9 says that the opinio juris element “means that the practice in question must be undertaken with a sense of legal right or obligation,” and should thus “be distinguished from mere usage or habit.” Thereafter, a series of conclusions address certain categories of materials that are frequently invoked in the identification of rules of customary international law:  treaties (Conclusion 11); resolutions of international organizations and intergovernmental conferences (Conclusion 12); decisions of courts and tribunals (Conclusion 13); and teachings of the most highly qualified publicists (Conclusion 14).

Two further conclusions deal with exceptional cases: the persistent objector rule, which provides that where “a State has objected to a rule of customary international law while that rule was in the process of formation, the rule is not opposable to the State concerned for so long as it maintains its objection” (Conclusion 15); and particular customary international law, which are rules of customary international law that apply only among a limited number of States (Conclusion 16). This concept of “particular customary international law” includes bilateral or regional  customary international law (e.g., solely within Latin America), but also a customary rule that operates among a group of States that are dispersed geographically, such as the Commonwealth of Nations that are mostly former territories of the British Empire. Although citing no example, the commentary asserts that “there is no reason in principle why a rule of particular customary international law could not also develop among States linked by a common cause, interest or activity other than their geographical position, or constituting a community of interest, whether established by treaty or otherwise” (Conclusion 16, commentary para. (5)).

Second, the Commission also completed its work on the topic “subsequent agreements and subsequent practice in relation to the interpretation of treaties,” which consists of thirteen conclusions and commentaries thereto. These conclusions seek to explain the role that subsequent agreements and subsequent practice play in the interpretation of treaties, especially with respect to Article 31 of the 1969 Vienna Convention on the Law of Treaties (VCLT). Thus, subsequent agreements and practice are one of several means of interpretation identified in Article 31 (which include with the ordinary meaning of the term of the treaty, its context, and the object and purpose of the treaty), all of which are to be employed as part of a “single combined operation” (Conclusion 2, paragraph 5).

When engaging in the interpretation of a treaty, Conclusion 2 reiterates what is found in the VCLT. Article 31, paragraph 3(a) provides that there shall be taken into account “[a]ny subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions,” while paragraph 3(b) provides that there shall be taken into account “[a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.”

The commentary to Conclusion 4 makes clear that for the subsequent agreement or practice to constitute one of the “authentic means” of treaty interpretation found in VCLT Article 31, it must establish an agreement of all the parties to the treaty, not just the practice of some of the parties. To the extent that the subsequent agreement or practice is of only some of the parties, then it may be relevant information for the less significant purposes of VCLT Article 32 (on supplementary means of interpretation), but it does not fall within the scope of Article 31 (Conclusion 4, commentary paras. (4), (9), (16) and (23)). Such an approach, which is consistent with the understandings that existed when the VCLT was adopted, protects treaty parties from being deemed bound by an agreement reached solely by other treaty parties; only if all parties are in agreement will that be viewed as objective evidence of the understanding of the parties as to the meaning of the treaty.

Subsequent practice under Article 31, paragraph 3(b) “may consist of any conduct of a party in the application of a treaty, whether in the exercise of its executive, legislative, judicial, or other functions” (Conclusion 5). A subsequent agreement under Article 31, paragraphs 3(a) and (b), “requires a common understanding regarding the interpretation of the treaty which the parties are aware of and accept. Such an agreement may, but need not, be legally binding for it to be taken into account (Conclusion 10(1)). The commentary indicates that for an agreement to be “common,” it is “sometimes sufficient that the parties reach the same understanding individually, but sometimes necessary that the parties have a mutual awareness of a shared understanding” (Conclusion 10, commentary para. (8)). While the parties must be “aware of and accept” the interpretation, where one party has interpreted a treaty in a certain way, “the awareness and acceptance of the position of the other party or parties may be assumed, particularly in the case of treaties that are implemented at the national level” (Conclusion 10, commentary para. (8)).

Third, the Commission completed the first draft of two further topics, both consisting of 12 draft guidelines and commentaries, on “protection of the atmosphere” and on “provisional application of treaties.” The Commission will now await written comments by governments due in December 2019, before revising and completing these two topics in 2020.

Fourth, progress was also made in developing draft conclusions on “peremptory norms of general international law (jus cogens),” draft principles on “protection of the environment in relation to armed conflict,” and draft articles on “succession of States in respect of State responsibility.” Perhaps the most interesting of these are the jus cogens draft conclusions (see annex to the July 2018 Statement of the Chair of the Drafting Committee). To date these draft conclusions might be grouped into three categories:  a series of draft conclusions that seek to illuminate what peremptory norms are, how they are formed, and how they can be identified (draft conclusions 1 to 9); the consequences of peremptory norms for treaty law, drawing upon rules set forth in the VCLT (draft conclusions 10 to 13); and procedural requirements in the event that a State wishes to invoke a peremptory norm as a ground for invalidity or termination of a rule of international law (draft conclusion 14).

The Special Rapporteur has proposed, but the Drafting Committee has not yet considered, a series of proposals on the consequences of peremptory norms with respect to other sources of international law (including customary international law, unilateral acts of States, and binding resolutions of international organizations), as well as the relationship of peremptory norms to obligations erga omnes and certain other matters. Due to concerns raised in the Commission’s Plenary, the Special Rapporteur has said that he will withdraw proposals asserting: (1) a “duty to exercise domestic jurisdiction over crimes prohibited by peremptory norms”; and (2) the “irrelevance of official position and non-applicability of immunity ratione materiae.” Instead, he intends to propose a provision(s) that will indicate that the Commission’s draft conclusions are without prejudice to the effects that peremptory norms may or may not have within national law with respect to jurisdiction, official position, or immunity.

Fifth, the Commission commenced a debate but otherwise did not make progress with respect to its topic on the “immunity of State officials from foreign criminal jurisdiction.” The Commission, however, added a new topic to its agenda on “general principles of law,” and added two new topics to its long-term work program, meaning that the topics might be placed on the agenda at some point in the future. The first of these topics, “universal criminal jurisdiction,” has been on the agenda of the Sixth Committee for several years, and it is thought that perhaps having the Commission pursue a study of the matter might be of assistance. The second of these topics is on “sea-level rise in relation to international law,” which would address matters relating to the law of the sea, the loss of Statehood, and human rights issues. This second topic would be pursued within a Study Group of the Commission (rather than by means of a Special Rapporteur), and comes on the heels of work by committees of the International Law Association on baselines in 2012 and 2018 and on sea level rise in 2016 and 2018, and associated ILA resolutions in 2018 on baselines and on sea level rise.

Finally, the Commission did not work on a topic that completed its first reading in 2017 and that, after receiving reactions from governments and others, will likely undergo its second reading in 2019: crimes against humanity.

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An issue that may be relevant to the outcome in Jesner v. Arab Bank is the degree to which contemporary treaty-making envisages the liability of legal persons, a term that can include corporations. Presumably, the more that states accept obligations under international law to impose liability upon legal persons for complicity in international crimes (such as crimes against humanity) or in national crimes that have a transnational component (such as transnational organized crime), the more it might be said that legal persons are capable of transgressing norms defined and accepted by nations.

A fairly recent move by the U.N. International Law Commission –  a group of 34 experts elected by the U.N. General Assembly from around the world with a mandate to codify and progressively develop international law – may suggest an increasing willingness to view corporations as capable of committing and being liable for offenses that violate international law.

In 2014, the commission began drafting articles for what might become a new Convention on the Prevention and Punishment of Crimes against Humanity. The overall objective of the project is to build up national criminal laws and national jurisdiction, while also developing cooperative legal relationships between countries (such as on extradition and mutual legal assistance), so-as-to improve the prospects for prosecuting persons who have committed crimes against humanity. On its current timetable, the commission will send its draft articles to the General Assembly in 2019, where they could be transformed into a convention for states to sign and ratify.  

One issue that the commission confronted was whether to limit the draft articles to natural persons or to include a provision with respect to legal persons. In 2015, as the commission’s Special Rapporteur for this topic, I proposed in a report to the commission that the draft articles not include such a provision. Yet when the matter was debated in the commission’s plenary, most of the members expressed support for addressing legal persons. That view carried the day, such that draft article 6, paragraph 7, now reads:

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.

Why did the Commission include such a provision? In codifying and progressively developing international law, the commission typically scrutinizes whether a particular rule operates as a part of State practice (to include national laws), exists before international courts and tribunals, or may be discerned in multilateral, regional or bilateral treaties. After surveying such practice, the commission concluded that, on balance, a provision on the liability of legal persons was warranted for its draft articles on crimes against humanity.

With respect to national legal systems, criminal liability of legal persons has become a feature of the national laws of many states in recent years, while many others impose alternative forms of liability (civil or administrative) on legal persons for conduct related to crimes. Acts that can lead to such liability are, of course, committed by natural persons acting as officials, directors, officers, or in some other position or agency of the legal person. Such liability 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.

With respect to practice before international tribunals, liability of legal persons has not featured significantly to date.

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. During the Tribunal’s proceedings, as well as subsequent proceedings under Control Council Law No. 10, several organizations were so designated, but only natural persons were tried and punished.  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” and, although proposals for inclusion of a provision on such responsibility were made, the 1998 Rome Statute ultimately did not contain such a provision.

At the same time, 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 for international crimes, including crimes against humanity.  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.

With respect to treaties, 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 Terrorist Bombings; and the 2006 International Convention for the Protection of All Persons from Enforced Disappearance. The Commission’s own 1996 draft Code of Crimes only addressed the criminal responsibility of “an individual”.

Yet several treaties do address the liability of legal persons for criminal offences, notably: the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (art. 1(2));  the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (arts. 2(14) & 4(3));  the 1999 International Convention for the Suppression of the Financing of Terrorism (art. 5);  the 2000 United Nations Convention against Transnational Organized Crime (art. 10);  the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (art. 3(4));  and the 2003 United Nations Convention against Corruption (art. 26). Such treaties may also found at the regional level, such as the European Criminal Law Convention on Corruption (art. 18), the Inter-American Convention against Corruption (art. 8), and the African Union Convention on Preventing and Combating Corruption (art. 11).

Many of these treaties have secured very high levels of adherence; for example, as of October 2017, 173 states are party to the 2000 Optional Protocol and another 9 States have signed but not yet ratified it.

Whether the International Law Commission’s draft articles ultimately become a new convention remains to be seen. Nevertheless, the decision to include within them a provision on the liability of legal persons, and the (albeit mixed) practice upon which that decision was based, seem quite relevant to the central issue in the Jesner case.

At the time of publication, Sean Murphy was Manatt/Ahn Professor of International Law at George Washington University in Washington, D.C., Member of the U.N. International Law Commission, and Special Rapporteur for Crimes Against Humanity.

Image: Drew Angerer/Getty 

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