The problematic formulation of persecution under the Draft Convention on crimes against humanity

Since the International Law Commission (ILC) decided to include the subject ‘crimes against humanity’ into its long-term program of work in 2013 Amnesty International has been following the topic closely. To that end, the organization has published so far five papers raising concerns and making recommendations on the First, Second and Third Reports by the Special Rapporteur on crimes against humanity, Sean D. Murphy, as well as on the Draft articles on crimes against humanity provisionally adopted by the ILC on first reading in 2017 (including this). The Draft articles on crimes against humanity, which serve as the basis of a potential Convention on the matter, have been transmitted, through the Secretary-General, ‘to Governments, international organizations and others for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 December 2018’.

It includes a set of 15 draft articles, a preamble, an annex and a commentary. In this paper the organization calls the attention of the ILC on a very specific concern. It relates to one of the underlying crimes, the crime of persecution. The phrasing of the crime of persecution as a crime against humanity, as adopted in the Draft Convention, is not in accordance with customary international law (and nor, strictly speaking, but for different reasons, with the Rome Statute of the International Criminal Court, see below). Finally, the organization makes a recommendation to fix the problem.