Professorial Inaugural Lecture Series: Professor Gerhard Kemp video transcript

The title screen appears. A blue background is shown with the University of Derby three hills logo in white in the middle of the screen. The University of Derby's name in white is directly below. White text on the screen reads below:

Professorial Inaugural Lecture Series:

Towards a crimes against humanity convention: A policy, practical and personal agenda by Professor Gerhard Kemp

The title screen fades out and a live video of Paul Lynch on a webcam is shown. He is a man with grey hair. He is wearing glasses, a black suit jacket and a white checked shirt, with a black leaf-patterned tie.

[Paul] Hello and good evening to the first inaugural lecture of 2022. My name is Professor Paul Lynch and as Chair of the University Professorial Council, l would like to welcome you to Professor Gerhard Kemp's Inaugural Lecture. It is entitled "Towards a Crime Against Humanity Convention: A Policy, Practice and Personal Agenda".

Can I now introduce Professor Kamil Omoteso who is the PVC Dean of the College of Business, Law and Social Sciences who will formally introduce Professor Kemp. Kamil -

The live video of Paul disappears, and a live webcam video of Kamil Omoteso appears. Kamil is a black man with black hair and beard. He is wearing a black suit jacket, a white shirt and a yellow tie.

[Kamil] Thank you very much Professor Lynch.

Professor Gerhard Kemp was born in the Northern Cape province of South Africa. He studied at the University of Stellenbosch where he obtained a BA, LLB, LLM and LLD. His LLD thesis was entitled "Individual Criminal Liability for the International Crime of Aggression." He also studied European and International Criminal Law at the University of Antwerp in Belgium where he obtained the International Legal Studies Certificate. Professor Kemp first joined academia in 1997 when he was appointed as a Junior Lecturer in public law at Stellenbosch University and as a tutor in law of evidence at the University of South Africa. In 1999, he was appointed as a full-time lecturer in law at Stellenbosch University where he developed and presented the first LLM module in International Criminal Law offered at a South African University.

In 2002 he was promoted to a Senior Lecturer and in 2009 to a full Professor of Law at Stellenbosch University where he taught criminal procedure, criminal law and international criminal law till 2020 when he joined the University of Derby. He is currently an extraordinary Professor of Public Law at Stellenbosch University. Professor Kemp has been involved in several significant curriculum development projects. In 2010, he served on a panel of experts that designed a model curriculum on international criminal justice training for African countries. The project was funded by the Open Society Foundation and conducted under the auspices of the Institute for Security Studies and the South African Institute for Professional Legal Training. In that same year, he was also appointed as an expert advisor for the joint curriculum development project on mutual legal assistance conducted by the Commonwealth Secretariat and the South African Law Society.

Professor Kemp has delivered several guest lectures over the years on specialized topics at Universities in South Africa, the Netherlands, Germany, the UK, Italy, Belgium, Botswana, Poland, Hong Kong and at the International Institute of Human Rights in Strasbourg, France.

From 2004 to 2017, he conducted annual training sessions on international criminal law and international humanitarian law for the International Committee of the Red Cross Criteria Delegation. In 2002, he was appointed as a Visiting Professor at the University of Port Elizabeth, which later became Nelson Mandela University. He taught an annual program until 2013 in international criminal justice at this University. Professor Kemp joined the University of Derby in 2020 as full Professor of Law with teaching responsibilities at the postgraduate level including transnational organized crime and international criminal law.

Professor Kemp is passionate about postgraduate research supervision training and development. He has successfully supervised several postgraduate students at multiple universities, including 12 doctoral and numerous LLM students. He is at present, the PHD lead for the School of Law and Social Sciences here at the University of Derby.

Professor Kemp is an active researcher. He is the author and co-author of several books, book chapters, edited volumes and articles in peer-reviewed journals. He has published widely on criminal law, comparative criminal law, international and transnational criminal law, transitional justice, post-conflict justice and humanitarian law. He is the co-editor of a major two-volume research handbook on international security and conflict law, which is published next month by Springer. He is the editor and main author of one of the standard textbooks on South African criminal law published by Oxford University Press and he authored a monograph on the crime of aggression which is now in its second edition.

Professor Kemp has also participated in several funded research projects, including a project on the impact of human rights on international cooperation in criminal matters in the southern African development community funded by the government of Botswana, a project on the domestic impact of international criminal tribunals funded by the Research Council of Poland, a project on the domestic implementation of international criminal law funded by the National Research Foundation of South Africa and a project on writing and publishing training for early career academics in Sub-Saharan Africa funded by the British Academy. His international research profile is evidenced by several prestigious research fellowships awarded to him including a senior research fellowship at the Robert Bosch Foundation in Berlin, a fellowship of the Stellenbosch Institute for Advanced Study and a fellowship of the prestigious Alexander Von Humboldt Foundation of Germany. In 2021 he was elected a fellow of the Royal Society of Arts.

Professor Kemp was admitted as an advocate of the High Court of South Africa in 1999 and made several high court appearances on behalf of the legal aid clinic of the Stellenbosch University until 2002 when his academic workload made court appearances increasingly difficult. However, he continued to write expert opinions on complex criminal and transnational cases, including high profile mutual legal assistance and extradition matters. He wrote an expert opinion for the appeal court in South Africa's first terrorism case that was based on the principle of universal jurisdiction, it was also admitted together with John Dugard, Kevin Heller and Hannah Willover as experts assisting the constitutional court of South Africa in the so-called "Zimbabwe Torture Docket Matter", the first universal jurisdiction case in South Africa, concerning the crime against humanity of torture.

Professor Kemp serves on the board of directors and executive committee of the institute for justice and reconciliation in Cape Town. The institute is one of Africa's most prominent transitional justice think tanks and is involved in several post-conflicts projects in South Africa, the great lakes region of Africa and elsewhere. Since 2005, Professor Kemp has been acting as a correspondent and content advisor for the British NGO Prisoners Abroad.

For the past ten years, he has been an academic advisor of the rule of law in Africa program based in Nairobi, Kenya. The program is funded by the Konrad Adenauer Foundation. He is regularly interviewed by the media including; CNN, Reuters and the BBC on topical legal issues.

Professor Kemp is a member of the advisory council of the Crimes Against Humanity Initiative, based at Washington University in St Louis, USA. Between 2002 and 2004 Professor Kemp served on the executive committee of the early career section of the International Association of Penal Law. Professor Kemp is an external examiner at several universities in the UK and abroad. Professor Kemp is the regional editor of the Criminal Law Forum, an international journal published by Springer, and serves on the editorial boards of several international law journals.

Distinguished ladies and gentlemen, it is my pleasure to present to you Professor Gerhard Kemp.

The live webcam of Kamil disappears. In place, the presentation slide appears on the left and a live webcam video of Gerhard Kemp appears on the right. Gerhard is a white man, with grey hair and black frame glasses. He is wearing a grey suit jacket, light blue shirt and navy-blue tie.

On the left, the first slide is showing. Covering the slide is an angled image of the University of Derby’s Kedleston Road Campus and the sky. In the top right corner, a white title reads ‘Inaugural Lecture – Professor Gerhard Kemp. 19 January 2022’. The University of Derby 3 hills logo in white is placed in the top left corner and text reading ‘derby.ac.uk’ in white is in the bottom right corner.

[Gerhard] Dear Professor Omoteso, thank you very much for the very kind and very generous introduction. Dear Professor Lynch, dear Professor Mitchell, colleagues, friends, it is my distinct honour to give this inaugural lecture here at my new academic home in the University of Derby.

We can move to the next slide.

I start with words from Nelson Mandela, which indicates essentially the drift towards a humanity where everybody strives to overcome hurdles. And, I hope that the words of Nelson Mandela will resonate to you all.

I just want to check that we are indeed on slide number two now.

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‘I am fundamentally an optimist. Whether that comes from nature or nurture, I cannot say. Part of being optimistic is keeping one’s head pointed toward the sun, one’s feet moving forward. There were many dark moments when my faith in humanity was sorely tested, but I would not and could not give myself up to despair. That way lays defeat and death.’

From: Long Walk to Freedom, by Nelson Mandela

[Gerhard] There we go. So, there's the quote from Nelson Mandela. I will just quickly read it, I will not explain it, I will not contextualise it; hopefully my presentation tonight will show you why I opted for these particular words and I quote from his long walk to freedom, his autobiography.

"I am fundamentally an optimist. Whether that comes from nature or nurture, I cannot say. Part of being optimistic is keeping one's head pointed toward the sun, one's feet moving forward. There were many dark moments when my faith in humanity was sorely tested, but I would not and could not give myself up to despair. That way lies defeat and death".

And, so we can move to the next slide.

The slide changes to a pastel yellow background with black text. At the top of the page is the heading ‘Towards a Crimes Against Humanity Convention: A Policy, Practical and Personal Agenda’, with a black border around it. This will appear on all of the pastel yellow pages. Below this, black text reads:

[A] INTRODUCTION

Universal Jurisdiction

This principle, which is applied with reference to crimes under international law (such as crimes against humanity, genocide, and war crimes), allows every country to prosecute such crimes; “it is not important where the conduct in question took place, who the victims were, or whether any other link with the prosecuting state can be established” (Werle & Jessberger: 2014, at 73-74).

The ‘Universal Jurisdiction’ section is in a white text block with a red border. The text is in black and bold.

[Gerhard] By way of introduction, I want to draw attention to a very recent event of significance. On the 13th January 2022, very recently, the higher regional accord in Koblenz, Germany convicted an accused person known as Anwar R for crimes against humanity in Syria. He is the former Head of the Investigation Department of a notorious detention facility of the Syrian General Intelligence Service. Anwar R was found guilty of torture, 27 murder counts and cases of sexual violence. For these convictions he was sentenced to life imprisonment by the court in Germany. The victims and affected persons were supported by civil society support groups including (and very importantly) a wonderful organization by the name of the European centre for constitutional human rights which is doing tremendous work in the field of not only human rights activism but also pursuing cases of international concern and they were supported also by a German legal team.

Now, in this case one person was convicted, but, in a sense this conviction also served as an indictment of the whole Syrian regime. The conviction showed the systemic nature of torture in Syria as we've probably all heard in the news saw in the media from time to time. It is precisely because of the systemic nature of the crimes involved that the court was able to find the accused guilty of crimes against humanity and as we speak... so I picked this one significant example from Germany recently, as we speak, there's another case that has started in the court in Frankfurt, also involving Syrian officials charged with crimes against humanity. So, all these trials in Germany and the conviction in the court in Koblenz were under the principle of universal jurisdiction. 

Now, this principle, which is applied with reference to crimes under International Law such as crimes against humanity and genocide and war crimes, allows every country to prosecute such crimes. I quote here from the authors Werle and Jessberger's book "It is not important where the conducting question took place, who the victims were or whether they have any link with the prosecuting state that can be established".

Now, the theoretical simplicity of the principle of universal jurisdiction is in a sense enticing but it masks all the complexities and controversies that make successful prosecution of international crimes still relatively rare. Despite the progress of the past few decades a lot of factors and role players must align for prosecutions on the basis of universal jurisdiction to be conducted successfully. The German case is indeed a showcase and an important example for the successful application of the principle of universal jurisdiction with victim support groups, think tanks, civil society and of course the criminal justice system of Germany all aligning to reach a remarkable outcome.

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[B] A CASE FOR UNIVERSAL, UNIVERSAL JURISDICTION

According to an analysis by Amnesty International, in theory around 150 states in the world provide for universal jurisdiction over at least one of the serious crimes under international law (i.e. war crimes, genocide, torture, and crimes against humanity).

Far fewer than 150 states are willing (or able) to exercise universal jurisdiction in practice

[Gerhard] Now, the case for universal jurisdiction may appear apparent from success stories like the German example, and indeed, Germany is not alone in its practice. On the basis of universal jurisdiction, the principle has been operationalised in recent years in several European countries and elsewhere, although one must note that up to this point, the application of the principle of universal jurisdiction is for the most part still a European practice; although there are examples from Africa and and elsewhere. According to an analysis by the international organisation Amnesty International, in theory around 150 states in the world provide for universal jurisdiction for over at least one of the serious crimes under international law, i.e war crimes, genocide, torture, crimes against humanity.

Now of course if you look at the empirical data it is clear that much fewer than 150 states are willing or able to exercise in practice universal jurisdiction. So, the principle of universal jurisdiction is potentially a very powerful tool to fight impunity but there are many problems of a practical and implementational nature that remain.

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[B] A CASE FOR UNIVERSAL, UNIVERSAL JURISDICTION

The principle of universal jurisdiction is potentially a very powerful tool to fight impunity for the most serious crimes under international law.

Zimbabwe Torture Docket case – Constitutional Court of South Africa (2015)
Southern Africa Litigation Centre (NGO, representing victims)
Academic amici curiae: Hannah Woolaver, John Dugard, Kevin Heller, Gerhard Kemp

The ’Zimbabwe Torture Docket case’ section is in a white text block with a red border around it. The text is black and in bold. The text in the last bullet point is in red.

[Gerhard] Now, a few years back, I was part of a small group of academics that argued before the constitutional court of South Africa in favour of the principle of universal jurisdiction to hold Zimbabwean officials to account for the crime against humanity of torture, allegedly committed in Zimbabwe against Zimbabwean civilians and by Zimbabwean officials. So, the case was brought to the constitutional court of South Africa by under the auspices and support of the Southern Africa Litigation Centre (another important NGO in that part of the world) and they supported a number of victims of torture that, at that point in time, were either residing in South Africa as refugees or they were still living in Zimbabwe but under great danger.

So, a key question before the court was whether the presence of any of the suspects was required before a country could investigate international crimes committed in another country, So the constitutional court of South Africa agreed with...Southern African Litigation Centre, plus the group of academics that I've just mentioned - agreed with our submissions and held that the exercise of universal jurisdiction for purposes of the investigation of an international crime such as crimes against humanity, committed outside the borders of South Africa may occur indeed in the absence of the suspect without offending the South African constitution or indeed international law.

Now, the court qualified this very broad understanding of universal jurisdiction by saying that at the moment of investigation there must at least be an anticipated presence of the suspect in the territory that wants to prosecute or rather initially investigate and ultimately prosecute the suspect for the international crime in question, and now you can see why I picked the German example and the South African example because I'm trying to illustrate how many factors must align before this sort of utopian principle of universal jurisdiction can come into practice.

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[B] A CASE FOR UNIVERSAL, UNIVERSAL JURISDICTION

The principle of universal jurisdiction is potentially a very powerful tool to fight impunity for the most serious crimes under international law.

2018: South Africa Constitutional Court:

The ‘2018: South Africa Constitutional Court’ section is in a white text block with a red border around it. The text is black and in bold. The text in the last bullet point is in red.

[Gerhard] So in 2018, a few years later, the constitutional court of South Africa was again asked to express its view on extraterritorial and universal jurisdiction. This time the question concerned the crime of terrorism which is also a crime (in some form at least) under international treaty law. Now, in this case the alleged perpetrator was a foreign national but he was living in Johannesburg as a South African resident and he was still a national of Nigeria and all the crimes of terrorism and the allegations of terrorism occurred in Nigeria.

So, the constitutional court then interpreted South African domestic law on terrorism, in conjunction with South Africa's international treaty obligations regarding at least some of the forms of terrorism in question and came to the conclusion...again a rather broad view of South Africa's jurisdiction over crimes committed abroad. So again, confirming this principle that was also in the Zimbabwe torture docket case adhere too. The question is, why were the South African authorities willing to investigate and prosecute alleged crimes of terrorism committed in faraway Nigeria, but they were not up to date (as we speak here tonight) willing to actively investigate, let alone prosecute, alleged crimes against humanity committed in South Africa's immediate next-door neighbour? Namely Zimbabwe.

While there are many different factors that I will not mention here or discuss now, I think one outstanding feature (and if you also think back to the German example that I used) is the fact that in these type of cases of universal jurisdiction a lot of different factors must align, including; political environment, investigative opportunity, prosecutorial priorities and of course the law must in place must be in place. We see that also, not only in the South African examples, but also in the European example that I mentioned. 

So, back to the Zimbabwe torture docket case. The theoretical application of the principle of universal jurisdiction could only be made real under certain conditions. Again, the role of civil society, the bravery of the victim groups, the involvement of academics and think tanks, and the anticipated presence of the suspects from neighbouring Zimbabwe made the case for the application of universal jurisdiction in South Africa a realistic prospect, rather than just an academic exercise. But, unlike the German example that we started off the presentation with the case in South Africa had one significant and fatal weakness. A criminal justice system that was, for whatever reason, unwilling to exercise its jurisdiction over the investigation and potential prosecution of a crime against humanity committed in neighbouring Zimbabwe. And this is where I want to make the observation that a very pertinent international treaty obligation, (like the topic at hand tonight) namely the creation or drafting and adoption of a crimes against humanity treaty could alter these kind of borderline cases where states have to make a decision whether to proceed with an investigation and prosecution of international crime or not.

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[C] THE IMPUNITY GAP – AND THE NEED FOR A CAH CONVENTION

There is no Crimes Against Humanity Convention – yet.

But if there are historical and ongoing prosecutions of crimes against humanity, the question is: Do we really need such an international convention?

[Gerhard] So, having mentioned the two examples from Germany and South Africa, both involving crimes against humanity as a group of crimes under international law, what I have not mentioned up to this point in any detail of course is the proposed crimes against humanity convention. That is simply because we don't have a crimes against humanity convention yet. Of course there are international conventions dealing with genocide and war crimes and torture and other crimes, but there is no international treaty codifying and dealing with crimes against humanity as such. But, if there are historical and ongoing prosecutions of crimes against humanity, the question is, do we really need such an international convention?

The prosecutions in Germany exist without the existence of an international convention, same with (at least) the initial case in the South African constitutional court. So, the question at hand is, would a convention make a positive difference to bring even more states on board with this idea that crimes against humanity can be prosecuted in domestic courts regardless of where in the world the crimes were committed? So, to answer this question about whether we really need an international convention on crimes against humanity, I want to go back to the year 1994, the year when South Africa held its first democratic elections signalling the end of the apartheid system but also the year when the world watched as Rwanda, our fellow African country, descended into a horrific genocide. That same year, an article by the renowned international law scholar Sharif Bassiouni appeared in the Colombia Journal of Transnational Law. It was entitled "crimes against humanity: the need for specialised convention".

In this article, Professor Bassiouni pointed out the existence of a significant gap in the international normative prescriptive scheme, one which is regrettably met by political decision makers with shocking complacency according to Professor Bassiouni. Now, although specialised convention remained elusive, the 1990s saw some positive developments for international criminal justice; notably, the creation of two ad hoc international tribunals dealing with war crimes, genocides and crimes against humanity committed in the former Yugoslavia and in Rwanda.

Then, in 1998, the adoption of the Rome statute of the international criminal court to create the world's first permanent international criminal court with jurisdiction over war crimes, genocide, crimes against humanity and the crime of aggression. But, none of these tribunals including the permanent ICC have qualified universal jurisdiction. The closest one gets to that is the powers assigned to the Security Council of the United Nations to refer the situation to the ICC, regardless of whether the implicated country is a state party to the ICC or not. The political reality however is that security council referrals to the ICC is still a very rare event and will presumably stay very rare. A critical assessment of the ad hoc tribunals and ICC falls outside the scope of tonight's presentation, but I want to say this, that because of the peculiar jurisdictional regimes of these international tribunals these institutions don't have the powers or abilities to hear all cases of atrocity crimes in the world. Indeed, even the permanent ICC was set up to be a complementary port, only to step in if states party to the ICC are unwilling or unable to deal with the crimes at the domestic level. So, in short, for a successful international criminal justice system to exist, we need the states of the world to come to the party. The states of the world must take on the bulk of the work to end impunity for all these atrocity crimes.

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[D] THE CRIMES AGAINST HUMANITY INITIATIVE

The Crimes Against Humanity Initiative was launched in 2008 under the direction of Professor Leila Sadat at the Whitney R Harris World Law Institute in St Louis, USA.

The Initiative had three primary objectives:

[Gerhard] So, that brings me to the crimes against humanity initiative. As I've already mentioned, there are international conventions dealing with war crimes and genocide and torture respectively under the Geneva conventions, the genocide convention and the torture convention of 1984. But there is no specialised convention for crimes against humanity. And as we have seen, developments at the international institutional level, notably the creation of international tribunals, cannot fill this gap mainly because of the jurisdictional limitations that I have mentioned. So, it was against this background that the crimes against humanity initiative was launched in 2008, under the direction of Professor Leila Sedat at the Whitney R Harris World Law Institute in Saint Louis, USA. The initiative had three primary objectives, I'll mention them briefly. First, to study the current state of the law and sociological reality regarding the commission of crimes against humanity. Secondly, to combat the indifference generated by an assessment that a particular crime is only a crime against humanity rather than say the crime of genocide, which was historically perceived to be the more serious of the two, but that is in fact a misconception. And then, in the third place, to address the gap in the current law by elaborating the first ever comprehensive specialized convention on crimes against humanity, and it is obviously this third objective which I will focus on for the remainder of this presentation.

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[D] THE CRIMES AGAINST HUMANITY INITIATIVE

2019: The International Law Commission: Draft Articles on Prevention and Punishment of Crimes Against Humanity

3 November 2021, the Crimes Against Humanity Initiative, together with the Global Justice Center, wrote a letter to the Sixth Committee (the “legal committee”) of the United Nations, urging the Committee to take action on the International Law Commission’s Draft Articles on Crimes Against Humanity.

[Gerhard] So, on a personal level, I can say that I'm very proud and honoured to be associated with the crimes against humanity initiative as a member of its International Advisory Council. Now, the initiative has done a tremendous amount of intellectual work, the heavy lifting of course being done by Professor Sadat and her team at the initiative. The work of the crimes against humanity initiative led and inspired the United Nations Law Commission to take up the topic of crimes against humanity in its program work, and eventually in 2019 we reached a very important milestone when the international law commission adopted the draft articles on prevention and punishment of crimes against humanity. So, the hope now of course is that it will progress in the United Nations leading to the adoption of a specialized treaty on crimes against humanity. And, on the 3rd of November 2021, the crimes against humanity initiative, together with a global justice centre (another important think tank) wrote a letter to the sixth committee (that is the Legal Committee of the United Nations) urging the committee to take action on the international law commission's draft articles on crimes against humanity. I am proud again to mention that I've co-signed this letter and we hope that there will be more action from the UN in the year and years to come.

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[D] THE CRIMES AGAINST HUMANITY INITIATIVE

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Statement Urging Sixth Committee Action on The International Law Commission’s Draft Articles on Prevention and Punishment of Crimes Against Humanity

“Now therefore, the undersigned, urge the following in order to make real and substantive progress on the work of the International Law Commission draft articles:

  1. The Sixth Committee should establish a procedure at the 76th Session of the UN General Assembly for the consideration of the draft articles with a view towards realizing the recommendation of the International Law Commission that the draft articles on the Prevention and Punishment of Crimes against Humanity be elaborated into a treaty.
  2. The process must have a clear mandate, defined meetings, specific terms of reference, and a timeline for completion of its work.

The Sixth Committee debate on the draft articles was marked by overwhelming support for the core aspects of the draft articles.

We urge States to translate this momentum into action."

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The United Kingdom supports the Commission’s recommendation for States to elaborate the draft articles into a convention in the UN General Assembly or at a diplomatic conference.

[Gerhard] So, in terms of this letter that was delivered to the United Nations, I just want to highlight a few key points there. And I've got from the letter...the law commission is urged to do the following, that the Sixth Committee (the legal committee) should establish a procedure at the 76th session of the UN general assembly for the consideration of the draft articles, with a view towards realizing the recommendation of the international law commission that the draft articles on the prevention and punishment of crimes against humanity be elaborated into a treaty, and secondly, that the process must have a clear mandate, defined meanings, specific terms of reference and the timeline for completion of its work. And we also mentioned the fact that the Sixth Committee debate on the draft articles was marked by overwhelming support for the core aspects of the draft articles.

And I can just mention here... and you'll see on the slide, I mentioned that United Kingdom for its part for instance is a strong supporter of the crimes against humanity treaty drafting process, and it supports such a treaty in principle. Our big challenge and task of course is to make sure that the whole UN gets on board and that eventually there will be enough support at the diplomatic level so that the treaty can be adopted, because unfortunately at the moment there is not a lot of progress at the level of the UN. It has reached lots of technical milestones towards the drafting of this treaty but now the challenge is essentially a political challenge to make sure that states are serious about the adoption of a treaty like this, and we are of course thankful for the many states that do support us, including the Government of the United Kingdom.

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[E] DRAFT ARTICLES ON PREVENTION AND PUNISHMENT OF CRIMES AGAINST HUMANITY

Key provisions:

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Article 3

General obligations

  1. Each State has the obligation not to engage in acts that constitute crimes against humanity.
  2. Each State undertakes to prevent and to punish crimes against humanity, which are crimes under international law, whether or not committed in time of armed conflict.
  3. No exceptional circumstances whatsoever, such as armed conflict, internal political instability or other public emergency, may be invoked as a justification of crimes against humanity.

[Gerhard] I will now continue to highlight a few of the key provisions in the draft articles as we advocate for them. Now, by way of introduction I should say that the draft articles constitute a very detailed framework for the prevention and punishment of crimes against humanity at the state level, and what I do know is, I will just pick a few key provisions, there certainly is no time to go through the whole draft treaty in its entirety. So, article 3 contains a few general obligations and I'll quickly go through the text with you.

And I should mention very briefly, this third paragraph has significance. For instance, in times of pandemics (as we currently live through) that no public emergency can ever justify the commission of crimes against humanity against the civilian population.

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[E] DRAFT ARTICLES ON PREVENTION AND PUNISHMENT OF CRIMES AGAINST HUMANITY

Key provisions:

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Article 4

Obligation of prevention

Each State undertakes to prevent crimes against humanity, in conformity with international law, through:

(a) effective legislative, administrative, judicial or other appropriate preventive measures in any territory under its jurisdiction; and
(b) cooperation with other States, relevant intergovernmental organizations, and, as appropriate, other organizations.

[Gerhard] Then article 4 is the obligation of prevention. Each state undertakes action to prevent crimes against humanity in conformity with international law through first of all, effective legislative, administrative, judicial or other appropriate preventative measures in any territory on its jurisdiction and cooperation with other states. Relevant in the government organisations and, as appropriate, other organisations. So, state cooperation obviously is a key aim of this convention, of this draft convention, to make sure that states not only apply the laws in their own territory but they cooperate with other states in order to combat crimes against humanity.

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[E] DRAFT ARTICLES ON PREVENTION AND PUNISHMENT OF CRIMES AGAINST HUMANITY

Key provisions:

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Article 6

Criminalization under national law

1. Each State shall take the necessary measures to ensure that crimes against humanity constitute offences under its criminal law.
2. Each State shall take the necessary measures to ensure that the following acts are offences under its criminal law:

(a) committing a crime against humanity;
(b) attempting to commit such a crime; and
(c) ordering, soliciting, inducing, aiding, abetting or otherwise assisting in or contributing to the commission or attempted commission of such a crime.

3. Each State shall also take the necessary measures to ensure that commanders and other superiors are criminally responsible for crimes against humanity committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.

[Gerhard] Article 6 is a crucial provision because it reads as follows: "Each state shall take the necessary measures to ensure that crimes against humanity constitute offences under its domestic criminal law. Each state shall take the necessary measures to ensure that the following acts at least are offences under its criminal law; committing a crime against humanity, attempting to commit such a crime and ordering, soliciting, inducing, aiding and abetting or assisting in any other way to the commission of or attempted commission of such a crime. And, each state shall also take the necessary measures to ensure that commanders and other superiors are criminally responsible for crimes against humanity committed by their subordinates, if they knew or had reason to know that the subordinates were about to commit or were committing such crimes". So, in essence article 6 is crucial because it must...it's of no use that states declare in general terms that crimes against humanity are offensive to international law but they don't have domestic criminal laws in place. Otherwise, prosecutions like we had in Germany or an attempted investigational prosecution or as we wanted to have in South Africa with respect to the Zimbabwe torture docket case would not be possible if you don't have on your law books, under your domestic criminal law, crimes against humanity. Because ultimately, like I argued earlier on in the presentation, we can't rely only on the international criminal court, we must rely on domestic criminal courts to enforce these international norms. And this is why a provision like Article 6 is so crucial.

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[E] DRAFT ARTICLES ON PREVENTION AND PUNISHMENT OF CRIMES AGAINST HUMANITY

Key provisions:

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4. Each State shall take the necessary measures to ensure that, under its criminal law, the fact that an offence referred to in this draft article was committed pursuant to an order of a Government or of a superior, whether military or civilian, is not a ground for excluding criminal responsibility of a subordinate.
5. Each State shall take the necessary measures to ensure that, under its criminal law, the fact that an offence referred to in this draft article was committed by a person holding an official position is not a ground for excluding criminal responsibility.
6. Each State shall take the necessary measures to ensure that, under its criminal law, the offences referred to in this draft article shall not be subject to any statute of limitations.
7. Each State shall take the necessary measures to ensure that, under its criminal law, the offences referred to in this draft article shall be punishable by appropriate penalties that take into account their grave nature.
8. 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.

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*corporate criminal liability; not provided in the Rome Statute of the ICC and still a novelty in international criminal law

[Gerhard] Article 6 continues... and I will just briefly run through it and then make a comment. You will find in article 6, various further obligations for domestic implementation of crimes against humanity under domestic criminal law. For instance, if you take a look at paragraph four "each state shall take the national measures to ensure that under each criminal law the fact that an offense occurred in the draft article was committed pursuant to an order of a government or superior would not be a ground to exclude responsibility".

But, I want to jump to paragraph 8 of Article 6 which is a very interesting provision and it 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". 

For those of you who know criminal law and comparative criminal law you will know that in some countries of the world like England, South Africa and Canada, for the most part, common law countries recognise the idea that legal persons like corporate entities can also commit crimes, including crimes against humanity. Some jurisdictions in the world, for example Germany, don't yet recognise the principle of corporate criminal liability per se and this is why paragraph 8 was included to make this... to create an avenue for countries to establish criminal liability for corporations. Big, multinational corporations that can also commit crimes against humanity should also be held liable if not under criminal law than at least under civil law or administrative law. So, this is a crucial innovation and this is also something that is quite different if you compare it to the Rome statute of the ICC which explicitly does not provide for corporate criminal liability.

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[E] DRAFT ARTICLES ON PREVENTION AND PUNISHMENT OF CRIMES AGAINST HUMANITY

Key provisions:

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Article 7

Establishment of national jurisdiction

1. Each State shall take the necessary measures to establish its jurisdiction over the offences covered by the present draft articles in the following cases:

(a) when the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) when the alleged offender is a national of that State or, if that State considers it appropriate, a stateless person who is habitually resident in that State’s territory;
(c) when the victim is a national of that State if that State considers it appropriate.

2. Each State shall also take the necessary measures to establish its jurisdiction over the offences covered by the present draft articles in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite or surrender the person in accordance with the present draft articles.
3. The present draft articles do not exclude the exercise of any criminal jurisdiction established by a State in accordance with its national law.

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*this leaves open the possibility of universal jurisdiction, which is not required but permitted.

[Gerhard] So, Article 7 then proceeds to establish national jurisdiction over crimes against humanity and each state must make sure that there is indeed jurisdiction and is under the following circumstances. "A) When the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that state (that's a classic territorial principle of jurisdiction). B) when the alleged offender is a national of that state or (when that state considers it appropriate) a stateless person who is habitually resident in that state's territory (so a classic nationality principle of jurisdiction). Paragraph C) when the victim is a national of that state if that state considers it appropriate, the so-called passive personality principle in international law. Then paragraph 2, each state shall also take the necessary measures to establish its jurisdiction over their offences covered by the draft articles, where the alleged offender is present in any territory and its jurisdiction." Now we get closer to this idea that states can act as agents of the international community to enforce international norms like the prohibition on crimes against humanity. So, then paragraph 3 is the crucial one that I want to spend a moment on and I will read it to you. "The present draft articles do not exclude the exercise of any criminal jurisdiction established by state in accordance with its national law". Now, if you read carefully here between the lines you will see that paragraph 3 was included to provide for the possibility of universal jurisdiction because not all states in the world recognise it. But yeah, states are (in a very subtle way) prompted not to be shy or coy about the idea of universal jurisdiction and that they should actually be encouraged to explore that. Although there's not a duty on states to exercise universal jurisdiction there certainly is a strong suggestion that they should provide for it under their domestic laws and under the cover of a treaty like this.

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[E] DRAFT ARTICLES ON PREVENTION AND PUNISHMENT OF CRIMES AGAINST HUMANITY

Key provisions:

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Article 12

Victims, witnesses and others

1. Each State shall take the necessary measures to ensure that:

(a) any person who alleges that acts constituting crimes against humanity have been or are being committed has the right to complain to the competent authorities; and
(b) complainants, victims, witnesses, and their relatives and representatives, as well as other persons participating in any investigation, prosecution, extradition or other proceeding within the scope of the present draft articles, shall be protected against ill- treatment or intimidation as a consequence of any complaint, information, testimony or other evidence given. Protective measures shall be without prejudice to the rights of the alleged offender referred to in draft article 11.

2. Each State shall, in accordance with its national law, enable the views and concerns of victims of a crime against humanity to be presented and considered at appropriate stages of criminal proceedings against alleged offenders in a manner not prejudicial to the rights referred to in draft article 11.
3. Each State shall take the necessary measures to ensure in its legal system that the victims of a crime against humanity, committed through acts attributable to the State under international law or committed in any territory under its jurisdiction, have the right to obtain reparation for material and moral damages, on an individual or collective basis, consisting, as appropriate, of one or more of the following or other forms: restitution; compensation; satisfaction; rehabilitation; cessation and guarantees of non-repetition.

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*Elements of restorative justice & transitional justice?

*There are still many national criminal justice systems in the world that are not victim-centred, and this provision aims to rectify that and to bring national criminal processes in line with international law, in particular international human rights law.

[Gerhard] The position of victims and witnesses. Now, I want to... you can go through the text on your own. I want to make a very broad point of... two points actually, about Article 12, the position of victims and witnesses. Now, the first observation that I want to make is that under many domestic criminal justice systems, especially those systems based on common law or Anglo-American systems, victims play either a very minor role in criminal proceedings or no role at all unless there are also witnesses. So here, by giving a prominent position and a voice to victims the draft articles of this draft treaty try to rectify that imbalance between the alleged perpetrator the right to a fair trial and the recognition that victims and witnesses also have rights and expectations. And also, although it's not explicitly dealt with in Article 12, I think the language of Article 12 also opened up discussions or possibilities for restorative justice and even transitional justice. If you read for example paragraph 3, this idea of restitution, compensation, satisfaction, rehabilitation. These are all words and concepts that we associate also with the body of law and principles known as transitional justice. So in that sense, this text clearly is a departure from classic criminal law where the emphasis is always on the accused, the rights of the accused and the role of witnesses, and here, we try to balance that with the interests and rights of victims.

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A few general comments concerning the Draft Articles on Crimes Against Humanity:

  1. Lessons from existing treaty regimes
  2. Comprehensive investigation & enforcement blueprint
  3. Irrelevance of official capacity
  4. Possibility of corporate criminal liability

[Gerhard] So, I want to make a few general comments then concerning the draft articles having highlighted the few of the specific articles and provisions in the text. First of all, in terms of lessons from existing treaty regimes the work on this draft articles clearly took lessons from existing treaty regimes and most prominently the Rome statute of the international criminal court. For instance, the definition of crimes against humanity as we find in the draft articles is largely consistent with the Rome statute of the ICC but with some notable modifications. For example, the meaning of gender; in the Rome statute, gender refers to male and female whereas in the draft articles gender is now an open-ended concept in line with current thinking. 2, the draft articles provides for comprehensive investigation and enforcement regime at the national and interstate levels and requires states to either try or extradite suspects to a third state, this is an important principle. 3rd, the draft articles provides for the irrelevance of official capacity for purposes of criminal responsibility, however I should note that for purposes of functional immunity, head of state immunity and diplomatic immunity remain part of international law and is not altered by the text of the draft articles. 4th place, draft Article 6 provides for the possibility of corporate criminal liability like I mentioned and this for me is an outstanding feature that could have profound impact in the years to come. We all know that multinational corporations are very powerful, they play a big role in our daily lives and they should also be held to account if they are responsible for crimes against humanity.

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A FEW GENERAL COMMENTS CONCERNING THE DRAFT ARTICLES ON CRIMES AGAINST HUMANITY

5. The Draft Articles provide for core state obligations:

  1. States must not commit CAH.
  2. States are obligated to prevent other states from committing CAH.
  3. States must take effective legislative or other appropriate preventive measures in territories under their control (this includes the obligation to adopt laws criminalising CAH under domestic law – another significant departure from the Rome Statute of the ICC, which does not contain a similar state obligation).
  4. There is a duty on states to co-operate in the fight against CAH. In this sense one can say that the Draft Articles constitute a kind of mutual legal assistance treaty-within-a-treaty.
  5. States shall refrain from sending persons to a jurisdiction where they are at risk of being subjected to CAH.
  6. States are obligated to effectively punish those guilty of CAH

[Gerhard] Then the draft articles also provide for certain obligations on all the states that will hopefully sign up to this treaty when it becomes a treaty. First of all, states must not commit crimes against humanity, so that speaks for itself. States are obligated to prevent other states from committing crimes against humanity, so states must use their diplomatic power and influence to make sure their neighbours and other states don't commit crimes against humanity. States must take effective legislative and other measures to prevent crimes against humanity from being committed on their territories and there's a duty on states to cooperate in the fight against crimes against humanity. So, in this sense one can say that the draft articles constitute a kind of mutual legal systems treaty within a treaty. And then, states shall also refrain from sending persons to a jurisdiction where they are at risk of being subjected to crimes against humanity. So this has an impact on refugee policy for instance or immigration matters more generally. States should refrain from deporting individuals to countries where they are at risk of being for example tortured or being subjected to other crimes against humanity. And, states are finally obligated to effectively punish those guilty of crimes against humanity.

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[F] CONCLUDING REMARKS

*This is the only part of the picture of international criminal justice…

There is an image on the left showing the International Criminal Court buildings and signage.

[Gerhard] So, this brings me to a few concluding remarks. Here on the slide you see a picture of the International Criminal Court, perhaps most prominently associated with the concept of international criminal justice. But, however important (and I am a supporter of the International Criminal Court with all its flaws and problems) the International Criminal Court is only part of the picture of international criminal justice. We need to focus on other measures complementary to the ICC and the proposed convention on the prevention and punishment of crimes against humanity is indeed such an additional and complementary measure to help stop the impunity gap. A convention with universal reach can help to fill the void left because of some state's resistance to the ICC as a concept.

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[F] CONCLUDING REMARKS

*The proposed Convention as memorial

There is an image on the left of people in a courtroom for the trial at Nuremberg after the second world war.

The convention also serves a memorial purpose. It harks back to a long history of efforts by the international community to hold to account those most responsible for crimes against humanity, starting with... here on the screen as you can see, the trial at Nuremberg after the second world war.

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[F] CONCLUDING REMARKS

The ultimate aim is to have practical meaning for victims and consequences for perpetrators. An international treaty, duly domesticated into national criminal law, can have such practical impact.

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2018 UK Government Policy

“Crimes of universal jurisdiction can be reported to the police in the same way as any other offence. Regardless of the route by which the presence of a suspected war criminal in the UK comes to light, the same standards of evidence and independence of process will apply in respect of any investigation, arrest or prosecution.”

[Gerhard] So these memorial and normative aspects of the proposed crimes against humanity convention are indeed important. But, the ultimate aim is to have practical meaning for victims and consequences for perpetrators. An international treaty duly domesticating international criminal law can have such a practical impact. Closer to home, we can point to their approach in the United Kingdom that is already pro-universal jurisdiction in some important respects.

In 2018, the UK Government policy states the following, "crimes of universal jurisdiction can be reported to the police in the same way as any other offence, regardless of the route by which the presence of the suspected war criminal in the UK comes to light. The same standards of evidence and independence of process will apply in respect of any investigation, arrest or prosecution". And this, to me is a prime example of a state's attitude to the idea of domesticating international norms and to fight impunity in the domestic criminal justice system.

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[F] CONCLUDING REMARKS

Criminal jurisdiction (whether territorial, extraterritorial or based on universality) is not supposed to (only) be an academic abstraction; it is supposed to have meaning for victims, perpetrators and the broader community.

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Tonight, I propose that the adoption of a Crimes Against Humanity Treaty will be a realistic, normatively sound, and practical contribution towards a better society.

On the right of this text block is an image of the ‘#DerbyUni’ sign outside of the Kedleston Road site.

[Gerhard] And, even closer to home, to the University of Derby I want to say that private individuals, civil society and entities, like our very own law advice center of the University of Derby which could play an important interface role for general legal advice identification of crimes against humanity victims and so on, can have a practical impact at the local level by reporting suspected cases of war crimes, torture, genocide and crimes against humanity to the police in the ordinary way.

The submission that I want to make tonight is that the proposed crimes against humanity convention can provide a harmonising, coherent, normatively solid and practical framework for the domestic implementation of laws that will help to fight impunity and it will help to bring justice and reparations to victims and affected communities.

There are existential crisis in the world today, we know it; climate change, pandemics. And lawyers will naturally think that the law and even the drafting of new treaties are helpful. Now that may or may not be true and this is a debate for another day, but something I'm happy to continue to have with colleagues and students alike. But tonight I propose that the adoption of a crimes against humanity treaty will be a realistic, normatively sound and practical contribution towards a better society.

Thank you. So that brings me to the end of my presentation but before I hand over to the chair again I just want to say a few words of thanks before we proceed.

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[Gerhard] So first of all I want to thank Professor Paul Lynch and Miss Louise Brown for all your ceremonial and logistical support tonight and in the preceding days and weeks when we prepared for this lecture. I also want to thank my Dean, Professor Kamil Omotseo who of course you have seen earlier. And Ms Sue Jennings, the Head of the Law School for their amazing encouragement and support throughout not only this process tonight but also from the moment that I've arrived at Derby.

Many people and institutions have played a role in my professional academic and academic life and development, and of course it's difficult to single people out or to single institutions out. But regardless of that observation, I would nevertheless want to highlight a few names of people and institutions that have played and who are continuing to play a significant role in my professional life. And many of these people are indeed mentors and colleagues but also friends. First of all I want to thank the two institutions where I have received my formal education, Stellenbosch University and the University of Antwerp. I also want to thank the colleagues at my new academic home the university of Derby. And Sue Jennings, the Head of our Law School who has of course given me tremendous support throughout my arrival and settling in here at Derby. I also want to thank a few other people very briefly. First of all, Baroness Christine Van Den Wyngaert of Belgium who introduced me to international criminal law many years back. But I still count her as a mentor and as a friend. Professor Klaus Bachmann, Warsaw, Professor Michael Borlander of the University of Durham, the Robert Bosch Foundation in Berlin, the Alexander Von Humboldt Foundation of Germany, the Stellenbosch Institute for Advanced Studies, the Konrad-Adenauer Foundation and the colleagues and friends at the Rule of Law Program in Nairobi, Kenya and friends and colleagues at the Institute for Justice and Reconciliation in Cape Town. Thank you for all your inspiring work, I do learn a lot from you still. I also want to thank my family for all their support and finally to Dr Ander Larue Kemp, my wife, partner, best friend. Thank you.

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[Paul] Thank you Gerhard, absolutely fascinating and compelling lecture and I just had no idea of the international reach of your work. I'm so impressed. So in awe of the impact of the work you're doing, absolutely fantastic. Inevitably, we have a myriad of questions for you and I don't think we'll get through all them but at least I'll pick out a few key ones tonight.

We'll let you have the other ones after the event so hopefully you'll have the opportunity to maybe interact with some of the questions directly. The first one that's caught my eye is "what is your view of the argument by some in developing countries that an international justice system is not truly international but a legal mechanism for institutions such as the international crime court to pursue and try and convict criminals from low-income countries while turning a blind eye to corporate criminals linked to multinational corporations in rich countries?”.

[Gerhard] Yes, thank you very much. So I think that's exactly the point. While the international criminal court does play an important role... up to now of course as we know it has only been active really in terms of its actual case load for the most part in Africa. But there is growing momentum towards cases from other parts of the world. There is this lingering idea that the international criminal court has two main flaws and I've touched upon both I think tonight. One of them being that it does not have jurisdiction over corporations, only over natural persons. And this draft convention tries to rectify that by providing for corporate criminal liability or at least some form of corporate liability to spread the net of liability, broader than just individuals. And the other part of this question touched on this idea of hypocrisy

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[Gerhard] or power imbalance in the world and of course, that's a political problem and we see even in the current universal jurisdiction cases in Germany and we all applaud it and we are all very excited about it and supportive of it, but there is this lingering fear that while everything aligned for cases against Syrians to be prosecuted in Germany, why not also pursue high-profile allegations of torture against say, prominent American politicians or prominent European politicians? So there is this element of hypocrisy and that's a political issue but we as international lawyers must be clear-headed about that and when we pursue an instrument like the draft convention we must try to rectify that imbalance.

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[Paul] Thank you Gerhard. A slightly more practical question in some ways I think, at least in my interpretation is "how can you force a treaty if there are no domestic legal frameworks to rely on?"

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[Gerhard] So a treaty is essentially a contract between states, so ideally...Let's assume there are roughly 200 states in the world and ideally all 200 of them should sign up to a treaty like the proposed crimes against humanity treaty and then they will contractually be bound to implement that under domestic law. So if I understand the question correctly it shouldn't be viewed from the bottom up, so you don't have to have domestic law in order to sign up to the normative framework of the treaty, often it's the other way around. Initially, it will start off at the international level, you sign up to the broad framework at the international level and then you make it very concrete and very practical under your domestic law and countries like the UK and Germany and South Africa have progressive domestic laws in place that would align them already with much of the proposed convention. But clearly there are many other states in the world that will have to do a lot of work to bring them into line with the framework as we've discussed it tonight.

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[Paul] Thank you Gerhard. A further question, "given the emersion of, for example, the big three permanent five in the UN security council to join the ICC statute and the emergence disdain of powerful states (vis-a-vis multilateral problem resolution mechanisms under the rule of law) what chance will this convention realistically have?"

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[Gerhard] That's a very good question. So one can assume that if many of the powerful states in the world including Russia, China and the US are not supportive of the idea of an ICC or an international criminal court, why would they sign up to a convention like this? And I think that the score card looks a little bit better for universal frameworks like the genocide convention or the war crimes conventions where many of the big powers have signed up to that, where they have a problem with the ICC as an institution. They are more willing to take the domestic route, in other words to domesticate international crimes and with extra-territorial or universal jurisdiction, exercise jurisdiction over these crimes rather than to out-contract it so to speak to something like the ICC, because clearly countries like Russia and China and America will not be willing to subject themselves to an external body like the International Criminal Court but they might very well be willing to make domestic law extra-territorial with a convention like this. But that's an assumption that I make based on their posture towards other treaties. It may not turn out to be like this but we hope for the best.

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[Paul] I think this the final question tonight otherwise you will be here long into the evening. "What are the reasons for some countries to resist the idea of corporate criminal liability?"

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[Gerhard] I wish could have one one or two of my German colleagues next to me because they need to explain it because it's a very peculiar and German doctrinal that human beings commit crimes, not abstract entities like corporations. whereas in English law and many of the common law systems the idea that an abstract entity can also commit a crime is very much embedded in national legal doctrine. So without going into all the minutiae of criminal legal theory, I think that is essentially... but that is not to say that in Germany for instance, corporations can do what they want of course there are administrative sanctions, they can be de-listed or numerous other things can happen to a corporation that for instance violate the law in some way. But the idea that the corporation as such can be criminally sanctioned as if it is a human being, that is a bit foreign to some systems still. But I must say, if you look empirical at the world as a whole, by far the majority of states have some or other form of criminal liability for corporations. And like I said, the remainder of the states will have some... maybe administrative or civil liability as a form of liability for corporate misbehaviour. 

Thank you.

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[Paul] Thank you Gerhard. So it's almost a form of philosophical position from what you're saying which is interesting. Thank you for addressing the diverse range of questions we've had, there's also a lot of other comments in the chat complimenting on this very enlightening and significant lecture, so thank you.

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Professorial Inaugural Lecture Series: Professor Gerhard Kemp video

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