INTRODUCTION

This chapter addresses two broad issues relevant to the Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity. Section II considers how questions of official and personal immunities may arise in respect of efforts to establish responsibility for crimes against humanity. Section III addresses issues relating to amnesties for such crimes. Each section begins by reviewing relevant principles of international law that would apply unless the Proposed Convention established a different rule, with a view toward ensuring that any new convention on crimes against humanity (1) does not undermine progressive developments in international law; and (2) clarifies applicable rules where necessary or useful.

In brief, this chapter concludes:

• The proposed convention on crimes against humanity should explicitly provide that the official position of the accused may not absolve him or her of criminal responsibility for crimes against humanity.

• In addition, separate provisions should make clear that State officials may not successfully invoke substantive immunities to avoid civil or administrative sanctions in respect of crimes against humanity committed in their own States.

• Recent developments in law and practice suggest that States are unlikely to agree to text that commits States Parties not to invoke immunities ratione personae in the context of inter-State criminal proceedings.

• Turning to amnesties, recent experience with another human rights treaty suggests that States are unlikely to agree on language prohibiting amnesties for crimes against humanity, even though such language would find strong support in developing principles of international law. The wisest course in a treaty whose aim is to assure criminal accountability for crimes against humanity is to avoid explicit references to the subject of amnesties.