Is there Something Missing in the Proposed Convention on Crimes Against Humanity? A Political Question for States and a Doctrinal One for the International Law Commission

Abstract

Part of a special issue on the proposed Convention on the Prevention and Punishment of Crimes against Humanity in the Journal of International Criminal Justice, this essay does not comment on what is in the draft Convention, but on what is not in it: consideration of the demands of a negotiated settlement to end armed conflict or political oppression. In the context of a negotiated settlement, the essence of transitional justice is the pursuit of justice in a way that facilitates the simultaneous pursuit of peace and reconciliation. Reading the draft articles and commentaries through this transitional-justice lens, the essay reflects upon the proposed Convention’s implications for attempts to transition from conflict to peace and from oppression to democracy. With the aim of opening up a debate, it poses a political question to states — essentially about the meaning of justice and who should decide on that meaning — and a doctrinal question to the International Law Commission — about the current status of amnesties in international law.