Mr. Chairman,

Please allow me to present China’s comments on the relevant topics contained in the current ILC report.

With respect to “Crimes against humanity”, the Commission considered at its 67th session the first report of Special Rapporteur Mr. Sean Murphy, and provisionally adopted four draft articles and related commentaries. The Chinese delegation thanks the Special Rapporteur for his in-depth research on the topic, and appreciates the outcome of the Commission’s work.

The punishment of crimes against humanity and other serious international crimes is a common goal of the international community and is in our common interest. The discussion and codification of the topic by the Commission is therefore of great significance. The Chinese delegation would like to make the following comments on the above-mentioned draft articles.

First of all, codification of draft articles should be based on a thorough review of the practice of States. In the report of the Special Rapporteur and the draft articles adopted by the Commission, a great deal of attention is given to the practice of international judicial organs, and, by comparison, little reference is made to the general practice and opinio juris of States. For instance, draft article 2 has removed the traditional qualifier of “in time of war” for “crimes against humanity”. Such an approach is based primarily on the practice of international judicial institutions and fails to consider whether the practice of States has reflected a general recognition that crimes against humanity under international law need not be committed during a war. In addition, draft article 3, in establishing the definition of “crimes against humanity”, has adopted verbatim the provision of the Rome Statute of the International Criminal Court, effectively regarding the latter as a universally accepted definition. In fact, the definitions of crimes as contained in the Rome Statute should be interpreted in conjunction with the Elements of Crimes adopted by the Assembly of States Parties. Moreover, in the negotiation of the Rome Statute, there were disagreements over the definitions and elements of various crimes, including crimes against humanity, which partly explains why some States are not yet party to the Rome Statute. It is therefore necessary for the Commission to review the positions and practice of States in a more comprehensive manner in order to lay down a really sound basis for the said definition.

Secondly, with respect to the list of specific crimes, full consideration should be given to differences among national legal systems. Draft article 3 contains a list of specific acts which constitute crimes against humanity, including “enforced disappearance of persons”. However, in many States, especially those not party to the Rome Statute, the crime of “enforced disappearances” may not exist in their domestic law. The enforcement of relevant provisions by these States, and the harmonization of domestic law with the relevant rules of international law are subjects that merit the attention of and discussion by the Commission.

Thirdly, it warrants further consideration whether the obligation of States to prevent crimes against humanity as currently drafted is too broad. Paragraph 1 (b) of draft article 4 provides that States are under obligation to cooperate with “other organizations” as appropriate to prevent crimes against humanity. According to the commentary, “other organizations” include non-governmental organizations. However, the commentary is silent on the legal basis of such an obligation and the practice of States in this respect. In light of the above, the Commission should give cautious consideration as to whether it is appropriate to impose upon States such an obligation under international law.

With respect to “Identification of customary international law”, the Commission has considered the third report of Special Rapporteur Mr. Michael Wood. We commend the excellent work of the Commission and the Special Rapporteur on this topic. I would like to avail myself of this opportunity to draw the Committee’s attention to the contribution made by the Asian-African Legal Consultative Organization (AALCO) in this regard. During the fifty-fourth annual session of the AALCO held in Beijing last April, Professor Sienho Yee, Special Rapporteur of AALCO’s Informal Expert Group on Customary International Law, presented his report on the mandated topic. In addition, AALCO organized an informal experts meeting in Malaysia last August, and invited Mr. Wood to exchange views with its experts on the said report. I believe that AALCO’s report will help the Commission appreciate the concerns and views of many Asian and African states in relation to the identification of customary international law. I would like to make two comments on the consideration of this topic by the Commission:

First, in determining whether a treaty provision reflects a rule of customary international law, the criteria of objectivity and impartiality should be applied, and the investigation should be based strictly on general practice and opinion juris. Consideration should be given to such factors as the extent to which the treaty in question has been ratified, acceded to or accepted by States, and whether a treaty provision has a universal character. In particular, non-party States should not arbitrarily determine which treaty provisions are rules of customary international law based on their narrow national interests. Such tactics of expediency is tantamount to utilitarianism or double standard.

Secondly, a comprehensive assessment should be made of the supplementary role of judicial rulings and writings of states in the identification of rules of customary international law. The Commission should not highlight only the judicial decisions of international judicial institutions while neglecting the decisions of national courts; it should not focus exclusively on decisions from a few jurisdictions while ignoring those from other national courts; and it should not rely heavily on the writings of publicists from a few countries while overlooking those authored by scholars of other states.

Mr. Chairman,

Since I will not be able to participate in the Committee’s deliberations next week due to prior commitments, please allow me to take this opportunity to present my delegation’s views on “Immunity of State officials from foreign criminal jurisdiction” and other topics in cluster 3.

With respect to “Immunity of State officials from foreign criminal jurisdiction”, the Commission considered the fourth report o