While crimes against humanity have proliferated around the world, there is currently no specific and comprehensive international treaty on these egregious offenses. This is a significant gap in international law. In 2019, the International Law Commission (ILC), an expert UN body mandated to advance the development of international law, completed a set of proposed draft articles on crimes against humanity, titled the Draft Articles on Prevention and Punishment of Crimes Against Humanity (“Draft Articles”), to address this shortcoming.
These Draft Articles provide the starting point for negotiations for an eventual treaty. For the past three years, consideration of and action on the Articles has been stalled in the UN General Assembly’s 6th Committee, which considers legal questions for the General Assembly. At the same time, crimes against humanity continue to be committed in numerous states around the world. This year, in a departure from the Committee’s usual methods of work, eight states have taken the timely initiative to introduce a draft resolution that seeks to create an ad hoc committee for substantive discussion of the draft articles in 2023 and report to the 78th General Assembly for a decision on next steps a year from now.
Given that this issue will be prominent in this year’s session of the 6th Committee, Human Rights Watch has prepared a question-and-answer document to provide a brief overview of the importance of advancing the draft crimes against humanity treaty to initial substantive discussions as a crucial step in creating a binding international crimes against humanity treaty.
As defined in the Rome Statute of the International Criminal Court, crimes against humanity consist of specific criminal acts including murder, rape, torture, apartheid, deportations, and persecution, among other offensive acts, when committed as part of a widespread or systematic attack directed against any civilian population according to a state or organizational policy. These are among the gravest offenses under international law.
In recent years, state and non-state actors, including armed insurgent groups, have committed alleged crimes against humanity against civilian populations all around the world, including in Myanmar, Syria, China, Israel and the Occupied Palestinian Territory, and the Central African Republic, to name just a few country situations where civilians have been devastated by these crimes. Significantly, in the months since the UN General Assembly’s 6th Committee failed to advance the Draft Articles at the 76th UN General Assembly in 2021, crimes against humanity have been more widely inflicted on civilians in Ethiopia and most recently in Ukraine.
While crimes against humanity are defined in the Rome Statute, unlike genocide, war crimes, torture, and enforced disappearances, there is no specific international treaty prohibiting these crimes. Because crimes against humanity can be committed in peacetime, international humanitarian law, the laws of war, do not adequately proscribe potential crimes against humanity.
The absence of a specific treaty may contribute to misunderstanding of the gravity of crimes against humanity, possibly downplaying their seriousness in comparison to genocide, which is prohibited by a comprehensive, specific treaty. While genocide and any effort “to eliminate a population in whole or in part on the basis of its nationality, ethnicity, race, or religion” has been considered “the crime of crimes,” without a specific treaty and a multilateral process to create it, the gravity of crimes against humanity has been diminished in public understanding and governmental response. A crimes against humanity treaty could focus international attention on these offenses and not just genocide as an egregious international crime.
The lack of a treaty focused on crimes against humanity, also means there is no dedicated body of experts focused on monitoring and helping enforcement of the treaty’s provisions. A treaty body could also develop and explain the legal interpretation of key elements of each crime against humanity. The lack of explanation from an authoritative body can make it more difficult to prosecute some of these crimes.
Further, when states fail to uphold their obligations under international treaties like those prohibiting genocide and torture, these instruments allow a pathway to litigate and enforce violations of state responsibility at the International Court of Justice. Without a treaty on crimes against humanity such routes are more limited.
All UN Member States should ratify the Rome Statute to make it truly universal. However, while the Rome Statute provides a concise definition of crimes against humanity, it does not address broader state obligations to prevent and punish these crimes. The Rome Statute imposes an obligation on states to prosecute these acts in their national courts for the purpose of avoiding their investigation and prosecution at the ICC. State parties to a crimes against humanity treaty would have a binding legal obligation to incorporate these crimes into their domestic law for national prosecution as well as to cooperate with other treaty states parties in investigating and prosecuting suspects, regardless of whether they have ratified the Rome Statute.
A crimes against humanity treaty would in addition provide national authorities with more tools, through their national courts, to conduct impartial proceedings against the accused. But if such national proceedings in the territorial state are not possible or do not take place, then, according to the treaty’s provisions, there would be an obligation to extradite suspects to a jurisdiction that would conduct an independent and impartial investigation and trial.
While the Rome Statute provides for cooperation between the International Criminal Court and state parties to the Rome Statute, it does not provide for cooperation between states with respect to the prosecution of crimes against humanity. Accordingly, a crimes against humanity treaty would extend the “vertical” cooperation required by the Rome Statute between the court and a state party by creating an additional obligation of “horizontal” cooperation between state parties to a crimes against humanity treaty.
In 2019, the International Law Commission completed a revised draft set of provisions on crimes against humanity, the Draft Articles on Prevention and Punishment of Crimes Against Humanity, and transmitted them to the UN General Assembly’s 6th Committee for consideration. The 6th Committee is the primary forum for the consideration of legal questions in the General Assembly and is mandated to advance the development of international law.
The current draft is comprised of fifteen articles which define crimes against humanity; create obligations on states to refrain from committing, as well as to prevent and punish, such crimes; prohibit non-refoulement; create obligations to criminalize the acts under national law, to establish national jurisdiction, and to investigate such crimes; includes the obligation of aud dedere aut judicare (prosecute or extradite); requires fair treatment of the alleged offender; as well as provisions with respect to treatment of victims, witnesses, and others, extradition, and mutual legal assistance.
Importantly, these Draft Articles will eventually be the focus of multilateral negotiations by states. Accordingly, some provisions will be (and should be) significantly revised in the process. In the past, Human Rights Watch has called for adding an explicit prohibition on amnesties for crimes against humanity, removing the Rome Statute limitations on the crime against humanity of persecution, barring reservations to the treaty, and creating a treaty body monitoring mechanism. But the first step is to move these Draft Articles forward in the UN’s 6th Committee to allow states to begin exchanging views on the provisions, which will eventually lead to a negotiation process to transform the Draft Articles into a treaty.
In October and November 2019, the 6th Committee debated the Draft Articles. More than 80 states and entities commented or joined a statement on the revised text and Austria offered to host a diplomatic conference for the new treaty.
However, instead of moving the Draft Articles forward and beginning initial discussions, for the past three years (2019, 2020, and 2021), the 6th Committee has merely adopted resolutions “taking note” of the Draft Articles and placing them on the agenda for the following year’s session. These “rollover” resolutions are a vehicle for inaction.
The Draft Articles have been stalled in the 6th Committee for the last three years due to obstruction by a small number of states. This opposition has been facilitated by the 6th Committee’s traditional practice of taking decisions by consensus. This practice is not rooted in a legal or procedural requirement. Rather, decision making by consensus has evolved and calcified over the last 20 years. This results in paralysis in the 6th Committee, which feeds into views that the Committee is becoming increasingly ineffective, if not irrelevant. The lack of action also undermines the credibility and viability of the International Law Commission. A rigid adherence to consensus gives more powerful states an effective veto over the committee’s mandate.
Given the intense geopolitical divisions characterizing the international landscape today and the resulting entrenched obstruction by a handful of states opposed to the rule of law, moving the Draft Articles forward to initial discussions will require the 6th Committee to move away from consensus decision making. However, while some states may be reluctant to break with consensus, this item requires decisive action.
With the events of the last year, it will be impossible to achieve a consensus on the Draft Articles. That reality is crystal clear. To move the Draft Articles forward to a process of substantive discussion and negotiation with a clear mandate and firm timeline, it is important for states representing a broad cross-regional grouping to adopt a more aggressive approach.
In particular, states whose civilian populations have experienced these serious crimes and whose national judicial systems have taken steps towards impartial and fair accountability have an important role to play in these discussions, such as Argentina, Peru, and Sierra Leone. These states bring unique credibility to the debate and subsequent negotiations.
On Wednesday evening, October 5, eight governments, as part of a cross-regional group, led by Mexico, introduced a resolution calling for convening an ad hoc committee in 2023 to discuss the substance of the draft articles and report to the whole of the U.N. General Assembly in Fall 2023 to decide next steps. The group includes Bangladesh, Costa Rica, Colombia, Gambia, the United States, the United Kingdom, and South Korea
Given the resolution, governments should speak out publicly in support of the resolution as well as to step up and co-sponsor the text. This will be especially important during the 6th Committee plenary debate on the Draft Articles on October 10th. It will also be crucial for as many supportive states as possible to attend the informal discussions that take place following the plenary debate and make their supportive views known. They will need to emphasize to others the importance of departing from consensus given the urgency of this file and, if necessary, voting affirmatively on the resolution in order to advance protections for their populations.
States should further be prepared to vote in favor of the resolution. Such a vote will be entirely procedural in nature. No UN Member State will be bound to participate in any negotiations, nor will it be obligated by any negotiated text. A vote, after three years of inaction, will simply allow initial discussion and an exchange of views to start up.