The Fight Against Impunity under the Draft Articles on Prevention and Punishment of Crimes Against Humanity


In 2019, the U.N. International Law Commission published a new version — the latest one — of the Draft Articles on Prevention and Punishment of Crimes Against Humanity. Surprisingly, they include no provision requiring States to punish perpetrators or, at least, to hold them personally accountable. Yet such a duty is a staple of post-World War II multilateral treaties addressing international crimes. The prosecution and punishment of core crimes perpetrators have become a routine matter under international law. Human rights courts have also become more demanding when dealing with serious human rights abuses. Although they have long given governments substantial discretion in determining the most appropriate means to ensure rights are secured, they now interfere in States’ national legal order to ensure that the authorities comply with their requirements. In short, States are required to investigate, prosecute, and punish those found responsible. By contrast, the Draft Articles are less ambitious. This paper aims to discuss from a comparative perspective the four provisions dealing more or less directly with the punishment requirement and highlights the consequences of their wording.

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