Each State shall ensure that its competent authorities proceed to a prompt and impartial investigation whenever there is reasonable ground to believe that acts constituting crimes against humanity have been or are being committed in any territory under its jurisdiction.
1. Comments and observations
177. States provided comments on draft article 8 both in writing and in statements before the Sixth Committee during the seventy-first and seventy-second sessions of the General Assembly.
178. Several States expressed their general support for the draft article.450 Even so,
some textual changes were proposed, such as with respect to the nature of the investigation. Thus, the Russian Federation wondered whether the reference to “impartial” was necessary,451 while Spain recommended that the draft article specify
that investigations should be “prompt and thorough”,452 and Sierra Leone favoured
“prompt, thorough and impartial”.453 Malaysia commented that it interpreted the draft
article as leaving it to States to determine the parameters of “prompt and impartial”.454
Singapore considered “that the commentary on this draft article should clearly state that the reference to ‘impartiality’ does not require any special impartiality measures
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450 Chile, ibid., para. 99; the Netherlands, Official Records of the General Assembly, Seventy-second
Session, Sixth Committee, 20th meeting (A/C.6/72/SR.20), para. 21; Romania, Official Records of
the General Assembly, Seventy-first Session, Sixth Committee, 25th meeting (A/C.6/71/SR.25), para. 76; Crimes against humanity: Comments and observations received from Governments,
international organizations and others (A/CN.4/726), chapter II.B.9, Sierra Leone; Slovakia,
Official Records of the General Assembly, Seventy-first Session, Sixth Committee, 26th meeting
(A/C.6/71/SR.26), para. 141; and Sudan, Official Records of the General Assembly, Seventy-
second Session, Sixth Committee, 19th meeting (A/C.6/72/SR.19), para. 68. See also Commission nationale consultative des droits de l’homme, Avis ... (footnote 305 above), p. 21; and Coco (footnote 444 above), pp. 765–766 (“While such duties to investigate may appear novel in international law, in fact they are not. On the premise that crimes against humanity const itute serious violations of fundamental human rights, the duty to investigate crimes against humanity can be considered as implicit in the duty to investigate human rights violations. … The ILC’s draft articles on crimes against humanity hold the merit of making such a general duty explicit.”).
451 The Russian Federation, Official Records of the General Assembly, Seventy-first Session, Sixth
Committee, 25th meeting (A/C.6/71/SR.25), para. 66.
452 Spain, ibid., 26th meeting (A/C.6/71/SR.26), para. 7.
453 Crimes against humanity: Comments and observations received from Governments, international
organizations and others (A/CN.4/726), chapter II.B.9, Sierra Leone. See also Human Rights
Committee, General Comment No. 31 (80) on article 2 of the Covenant: The nature of the legal obligation imposed on States parties to the Covenant, reproduced in the report of t he Human Rights Committee on its seventy-ninth, eightieth and eighty-first sessions, Official Records of the
General Assembly, Fifty-ninth Session, Supplement No. 40 (A/59/40), annex III, at p. 178, para. 15 (finding a general obligation to investigate violations “promptly, thoroughly and effectively through independent and impartial bodies”).
454 Malaysia, Official Records of the General Assembly, Seventy-first Session, Sixth Committee, 26th
above and beyond the general standards of investigations for criminal proceedings that are applicable under domestic law”.455
179. As the Commission noted in its commentary, the existing formula has been used in prior treaties that have been acceptable to States, notably the 165 States parties to the 1984 Convention against torture and other cruel, inhuman or degrading treatment or punishment. Article 12 of that treaty provides: “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” The Special Rapporteur remains of the view that the formula used in draft article 8 remains appropriate in this context.
180. Other comments addressed the circumstances that would trigger such an investigation. Thus, Chile proposed that the obligation also be “triggered whenever an allegation that crimes against humanity have been or are being committed is brought before the competent authorities of that [S]tate”.456 The Special Rapporteur
views the current text as encompassing situations where allegations are brought to the attention of competent authorities, but also other situations where allegations have not been made yet information exists suggesting possible crimes against humanity. In either event, the competent authorities must decide whether, on the information available to it from whatever source, there is a reasonable ground to believe that acts constituting crimes against humanity have been or are occurring in any territory under its jurisdiction. If so, then the competent authorities must proceed with the investigation.
181. Some States suggested that more information be provided on this obligation in the commentary.457 For example, Sierra Leone sought explanation as to what is meant
by “competent authorities”, what amount of knowledge is required before the obligation arises, and what consequences flow from failing to discharge the obligation, as well as confirmation that a complaint is not a predicate requirement.458
The Special Rapporteur proposes that the Commission can consider changes to the commentary to address such concerns. For example, a recent anal ysis of the Human Rights Committee (albeit in the context of the obligation to investigate potentially unlawful deprivations of life) provided:
Investigations and prosecutions of potentially unlawful deprivations of life should be undertaken in accordance with relevant international standards, including the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), and must be aimed at ensuring that those responsible are brought to justice, at promoting accountability and preventing impunity, at avoiding denial of justice and at drawing necessary lessons for revising practices and policies with a view to avoiding repeated violations. Investigations should explore, inter alia, the legal responsibility of superior officials with regard to violations of the right to life committed by their subordinates. Given the importance of the right to life, States parties must generally refrain from addressing violations of article 6 merely through administrative or disciplinary
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455 Crimes against humanity: Comments and observations received from Governments, international
organizations and others (A/CN.4/726), chapter II.B.9, Singapore.
456 Ibid., Chile.
457 Austria, Official Records of the General Assembly, Seventy-first Session, Sixth Committee, 25th
meeting (A/C.6/71/SR.25), para. 83; Iceland (on behalf of the Nordic countries), ibid., 24th
meeting (A/C.6/71/SR.24), para. 61; and Spain, ibid., 26th meeting (A/C.6/71/SR.26), para. 7.
458 Crimes against humanity: Comments and observations received from Governments, international
measures, and a criminal investigation is normally required, which should lead, if enough incriminating evidence is gathered, to a criminal prosecution.459
2. Recommendation of the Special Rapporteur
182. No changes to draft article 8 are recommended, but the Commission may wish to consider changes to the commentary that take into account some of the comments received. The Special Rapporteur will make proposals to this effect in due course.