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The present paper analyses the Draft articles on Prevention and Punishment of Crimes Against Humanity, adopted by the International Law Commission in 2019 and considers the respective role by the Commission in codifying international criminal law. Contrary to genocide and war crimes, crimes against humanity were not codified in the late 1940s. The lack of treaty regulation may be considered problematic, even despite the adoption in 1998 of the Rome Statute of the International Criminal Court. Therefore, it may be noteworthy to consider the desirability of adopting a separate convention on crimes against humanity.The topic has already been tackled in other activities of the Commission. Despite the frag-mented regulation covering separate particular reflections of the crimes against humanity, such as apartheid, torture or enforced disappearances, it is justified to claim that the core of the crimes against humanity is firmly rooted in international customary law, even if some respective specific questions remain disputable. Considerations undertaken by the ILC may as well prove helpful in establishing a more general convention concerning international crimes. The analysis of the ILC Draft Articles confirms the conformity with obligations arising for states out of the instruments creating international criminal courts and tribunals (including those of mixed hybrid character combining international and domestic elements of jurisdiction and com-position). The Article 2 definition reflects the analogous provision of the Rome Statute as contained in its Article 7. The activities of the ILC seem to complement the substantive part of international criminal law. The 2019 Draft Articles contribute to the implementation of the principle of comple-mentarity, as arising out of the Rome Statute. The main goal of the codification is a development of national laws that prohibit and punish crimes against humanity and the respective domestic ju-diciary’s actions, as well as to establish the framework of cooperation in terms of extradition and judicial assistance. The lack of a treaty framework does not necessarily impose a cogent bar to prosecution under international law as the latter may be of course based on international custom. The associated lack of sufficient precision may prove problematic, first of all because of the legality principle. Finally, the paper also deals with a negative dimension of codification. Choosing a treaty meth-od may be treated as a means to allow undermining its negotiated provisions. But even a reliance on a non-binding instrument may remain meaningful to establish and ascertain the respective norms of international law, similar to a codification treaty. Irrespective of the eventual outcome of the ILC Draft Articles any formulation and systematic consideration of norms in a written form is a welcome enterprise allowing for a legal development, through increasing certainty of law and offering yet another occasion to clarify and develop the existing normative framework. However, reducing the crystallization process to a single particular formula may as well prove destructive for future legal development and its responsiveness to the needs of the international community.

Celowość kodyfikacji zbrodni przeciwko ludzkości przez Komisję Prawa Międzynarodowego ONZ