Brief History of the Crimes Against Humanity Initiative

The world’s first treaty on crimes against humanity inched closer to reality as the U.N. General Assembly’s Sixth (Legal) Committee recently wrapped up the last of a series of “resumed sessions” before States decide this October whether to proceed to formal negotiations on the document.

Significantly more States and regional groups intervened during the most recent session, held April 2024, than in 2023, and the number that support the draft increased.

Representatives of civil society also were present in much higher numbers, issuing a “Joint Statement in Support of Progress toward a Crimes Against Humanity Treaty” from more than 610 organizations and individuals from around the world.

The April session was held pursuant to Assembly Resolution 77/249 in December 2022 that called for further discussion of the International Law Commission’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity (Draft Articles). It was evident that over the past two years, States had not only absorbed the text more fully but have begun to develop positions regarding its provisions. Two intersessional meetings hosted by Germany and France in 2023 and by Germany in 2024 were helpful in this regard. The high level of engagement continued throughout the week, and was particularly evident when representatives addressed not only the substance of the draft but also the ILC’s recommendation that such a treaty be adopted at all (either by the General Assembly or a diplomatic conference), which had not been on the table in prior sessions.

The European Union, on behalf of itself and 10 additional States, voiced strong support for the new treaty. The Arab Group and African Groups intervened regularly, which was a new development, and additional regional groups — such as nine Portuguese-speaking countries represented by Timor-Leste — took the floor for the first time. Angola, Cabo Verde, Equatorial Guinea, Guinea-Bissau, and Sao Tomé e Principe for the first time indicated their support for the treaty. Bolivia spoke on behalf of 13 Latin American States along the same lines, calling the need for a new treaty “urgent.”

Likewise, the United States, the Nordic countries, and Australia on behalf of itself with Canada and New Zealand expressed strong support. Overall, more than 70 States in April urged the adoption of a new treaty. Including interventions in the Sixth Committee in 2022 and 2023, that brought the total number of positive States over the past two years to 120, with nine remaining neutral.

Notably, however, because Resolution 77/249 only provided a basis to discuss the Draft Articles not to negotiate a common text, no formal negotiations did or will occur until States decide (in the October 10, 2024 session of the Sixth Committee), whether to do so.

The substantive discussions during the resumed session were far-reaching and interesting, as the Oral Report of the Co-Facilitators (Oral Report) and the Draft Written Summary prepared by the Chair (Chair’s Summary) evince. That said, those documents do not precisely represent the outcome of the meetings, as they use terms like “several” or “delegations” to mean as few as two or three States, or as many as 80. One can glean the subjects discussed from these documents, therefore, not the degree of States’ enthusiasm for them. While many interventions reprised earlier arguments, there were some surprising developments.

As was true for the resumed session held in April 2023, the Draft Articles were divided into five “clusters” and delegates were invited to comment on each cluster, in turn. Such an important treaty should not be negotiated in secrecy, and the views of all States should be transparent open information.

What we do know: Debating the Definitions

The definition of crimes against humanity attracted significant attention, as it had during the 2023 resumed session. The Draft Articles largely incorporate the text of Article 7 of the Rome Statute of the International Criminal Court (Rome Statute) with only three modifications, including eliminating the definition of gender in Article 7(3), which as I’ve noted with a co-author previously, is a regressive definition out of step with understandings of gender today. As the Oral Report notes, there was widespread support, with a few dissenting voices, for the deletion of that reference from the text.

As for other elements of the definition, discussed below,  this year, unlike past years, there seemed to be a new openness expressed by most delegates to the idea of modest departures from the Rome Statute definition.

Proposals from civil society include adding gender apartheid and forced marriage as new crimes. States also advanced a variety of proposals. Sierra Leone and the African Group supported the addition of the slave trade. Nigeria proposed to include colonialism, and Rwanda suggested adding starvation of a civilian population.

There were also proposals to include ecocide, unilateral coercive measures against civilians, terror-related acts, use of nuclear weapons, exploitation of natural resources, and crimes against Indigenous peoples.

Finally, suggestions were made to adjust the ILC’s definition of persecution, either by broadening it to include a linkage to all Rome Statute crimes, as the country of Lichtenstein proposed, or deleting the linkage requirement entirely as Portugal suggested.

Many of these proposals tracked submissions of States either during the 2023 regular Sixth Committee session or in written comments submitted to the Sixth Committee pursuant to Resolution 77/249.

Prevention will be a key pillar of the new treaty. Draft Articles 3 and 4, which address prevention in the current text, were discussed extensively. It became clear that they are susceptible to varying interpretations as drafted, particularly as to their territorial scope.

Several delegates commented on the need to ensure that the new treaty is carefully drafted to reflect the current jurisprudence of the International Court of Justice (ICJ), some of which was not available when the Commission finished its work in summer 2019.

Others raised the issue of including a monitoring mechanism in the new treaty to assist with prevention.

In discussing the proposed dispute settlement clause in Draft Article 15, views were divided, with some delegates leaning towards a more compulsory provision and others preferring a set of options.

The approach taken may depend on whether reservations to the new treaty are permitted. Interestingly, the ILC did not reference the erga omnes nature of the prohibition against crimes against humanity in its commentaries to the Draft Articles – in other words, that the obligations of the treaty apply to all States. That raises the question whether all States will have standing under the new treaty to bring interstate actions based on the principle of universal (international) jurisdiction, as is now permitted under the Genocide Convention.

In addition, some States expressed concern about universal jurisdiction in the draft treaty and wished for more clarity regarding the content of Draft Article 7 (jurisdiction) as well as limitations on multiple or overlapping prosecutions that they worried could be politically motivated.

National Measures Related to Punishment

Many provisions of the text address national measures relating to the punishment of crimes against humanity, including jurisdiction, modes of liability, investigation, trial, and the principle of aut dedere aut judicare (try or extradite). As the Oral Report notes, these provisions are critical to the effectiveness of any future convention.

Much of the discussion reprised earlier comments, but with some additional nuances. Some delegations proposed that additional forms of responsibility for crimes against humanity including conspiracy, incitement, planning, and financing be incorporated into the text, and several delegations commented on the question of immunities, expressing a variety of views. This will be something to watch closely during any eventual negotiations.

Several delegates suggested (but others demurred) that the treaty should prohibit amnesties for crimes against humanity in some manner.

Others supported the Commission’s proposal on liability for legal persons.

And others suggested possible provisions on civil or administrative liability for crimes against humanity.

The discussion of measures for international cooperation (Cluster 4) also received more detailed discussion than in prior years. The importance of these provisions was emphasized, and delegates offered various proposals for additions or amendments. Some urged caution, arguing that these provisions should not become overly complex and detailed, but should provide States flexibility in their mutual relations.

Some delegates pointed to the recently adopted Ljubljana–The Hague Mutual Legal Assistance Treaty (MLAT), noting that the more detailed provisions of that convention could complement and reinforce a future crimes against humanity treaty.

A discussion of safeguards (Draft Articles 5, 11, and 12) focused on fair trial guarantees for the accused, the rights of victims and witnesses, and the principle of non-refoulement. As the Oral Report notes, many proposals were advanced that might be taken up in future negotiations.

A number of delegates voiced support for a “victim-centered” approach, as well as the need to avoid re-traumatizing witnesses.

A particularly lively debate focused on reparations for crimes against humanity, as some States take the view that the treaty should have a  human rights centered approach, whereas others see it as primarily a criminal law instrument.

Looking Forward

Even after two years of comprehensive discussions, however, the significant support expressed for the new treaty is not enough to move it to negotiations under the framework provided by Resolution 77/249, although it is a promising indicator for the future.

To move forward, States need to adopt another resolution in October, and obtaining it will require skillful leadership to overcome the objections of a handful of States that have successfully used the Sixth Committee’s consensus tradition to block the treaty’s advancement.

The UN’s International Law Commission finalized a set of provisions – the Draft Articles on Prevention and Punishment of Crimes Against Humanity (“Draft Articles”) in 2019 and promptly forwarded them to UN Headquarters five years ago with  recommendations to start negotiations. Yet, a handful of obstructive states stalled headway.

Indeed, on the final day of the session, in a somewhat dramatic moment, several States, led by Cameroon, suddenly opposed the adoption of the Chair’s Summary, suggesting that it be “taken note of” rather than “adopted,” to which the Chair agreed to preserve consensus. While this distinction was not material, it may signal the continued determination of a handful of States to block the negotiation of this new treaty.

In 2022, nearly a majority of UN Member States—north and south—moved to close the gap with the Draft Articles as the essential starting point in actual negotiations. Since then, there have been two special sessions for “discussion” in 2023 and 2024 at the General Assembly’s legal committee—its Sixth Committee—plus several yearly debates and written submissions of positions. This effort is heading to a climactic showdown in the fall.

The Sixth Committee is mandated to make a decision, on whether to move these draft provisions forward to negotiations or, in the alternative, consign them to the oblivion of endless rounds of discussion. With its potential protective impact for civilians at risk, this next step is the most significant decision on international law-making the UN will make this year.    

A much-needed international treaty to prevent and punish crimes against humanity, could be enforced by national courts, adding significantly to the global ecosystem to support justice for the worst crimes. While not a panacea, a convention could significantly strengthen protections for potential victims by both preventing and punishing these crimes.

A treaty would also define the legal obligations of treaty member states to cooperate with one another. This would include extraditing suspects to those member states that are prepared to try them fairly.  This would extend justice’s reach where other courts like the International Criminal Court are not able to act.

At UN headquarters, the drive to start negotiations is being led by Mexico and The Gambia. These two have recently circulated a draft resolution to all UN member states calling for negotiations to begin and end in 2026.

The number of states willing to co-sponsor this text  will be a measure of the breadth and depth of support to move forward.

In 2022, 86 member states signed on as co-sponsors. These states represented all regions of the world—Africa, the Americas, Europe and North America, the Middle East, and Asia. This year the numbers and regional diversity of supportive states will be especially important. 

At a time of intensifying geo-political divisions that are clearly manifest in the meeting rooms of the UN, it’s hardly surprising that there is deeply entrenched opposition towards a treaty on crimes against humanity.

There is a small group bound by ideology and self-interest—the Russian Federation, the Peoples Republic of China, Iran, Cuba, DPRK, Eritrea—that are adamantly against any headway.

Seeking some veneer of legitimacy, the group has anointed itself “the Friends of the UN Charter.” These “Friends” deny that there is a missing pillar of international law due to the absence of a crimes against humanity treaty.

The actual alignment of forces was on clear display at the last “discussion” session in April 2024. There, states made 51 separate statements favoring moving to negotiations. This number includes remarks by groups of states. Some were larger groups, like the European Union and the states of the Americas region, while some were smaller, like the Portuguese-speaking nations. At that same session, six states took the floor to oppose going to negotiations. 

To predict what will happen at the Sixth Committee this Fall, one could look to the sequence of events two years ago.

In 2022, after denouncing the effort to start negotiations, some of the “Friends” returned to bargain for—and obtain—a few concessions. This led to a “consensus” agreement supported by all member states that propelled a General Assembly Resolution mandating two years of “discussion” and a final decision on next steps in Fall 2024.

The supportive states are clearly seeking a consensus decision which will require an even larger and more diverse group of backers.   

Among UN member states, there is a large group that have yet to take a position on next steps for the Draft Articles and a large segment of them need to voice their support for negotiations. Many of these states have had direct experience with these crimes. They have a great deal to add in creating a treaty that will provide meaningful protections for their populations.

Recognizing that strengthening their national judicial systems through an international treaty is a crucial link in enabling these to become supporters. 

At the same time, the terrain is different than it was two years ago.

The geo-political divisions shaping today’s international landscape are more intense than in 2022.

This tension spills over onto nearly every issue at UN Headquarters. 

STAKES ARE HIGH

In addition, the stakes are higher than they were two years ago: the decision at hand is to begin negotiations. So no matter how many states want to start negotiations, it’s entirely possible that some of the “Friends” will not agree to a consensus to begin negotiations. 

Significantly, unlike other General Assembly committees, the Sixth Committee over the years has taken its decisions by “consensus.”

The UN Charter and rules do not require this.

There are various reasons that states, large and small, cite to justify this peculiar method of multilateral decision-making and the resulting paralysis it has engendered.

But if consensus to start negotiations proves to be impossible to attain, the supportive states, prompted by the imperative of creating a treaty preventing and punishing these crimes, need to be ready to depart from consensus and take this to a vote.

The rationale for breaking with the tradition of consensus is rooted in the serious consequences for those at greatest risk of these crimes.

Given the devastation that has scarred countless civilians, a crimes against humanity treaty will offer future victims a means of redress. In the face of the growing number of conflict or unstable country situations, that have been exacerbated by sharpening geopolitical divisions, beginning negotiations will send a powerful signal.

On an increasingly fractured global landscape, the decision to negotiate would demonstrate that the protections of international law are expanding, not withering. That would be a powerful and greatly positive message to emanate from the United Nations this Fall.

Given the significant number of conflicts in the world, and the desperate need of victims for justice, not to mention the imperative of prevention, U.N. member States should press hard to advance this critically important new treaty to negotiations in October.