Participation, Reparation and Redress: Draft Article 12 of the ILC’s Draft Articles on Crimes Against Humanity at the Intersection of International Criminal Law and Human Rights Law

This article considers primarily draft Article 12 of the ILC’s Draft Articles on Crimes Against Humanity, which address questions of victim participation and reparation, as well as the right to complain and the protection of complainants, witnesses, victims and others. In analysing the different aspects of draft Article 12, the authors outline ways in which its provisions could be strengthened. The authors note that, in several respects, draft Article 12 does not go far enough in articulating victims’ rights and leaves too much to be determined by States’ domestic law. In so doing, the text risks undermining certain rights recognized and protected under international law and may impede realization of some of the central objectives of the draft Articles (and thus the convention of which the draft Articles are intended to form the basis), including affording justice and eradicating impunity for crimes against humanity, harmonization of relevant laws and facilitating mutual cooperation. The authors also argue that the draft Articles as a whole would benefit from a more holistic vision of victims’ rights. The formulation of the draft Articles should reflect that past, current and future potential victims underlie the rationale for a convention on crimes against humanity. The authors hope that their reflections will prove useful to States and other actors, as they submit comments on the draft Articles prior to their finalization by the ILC in 2019.