While crimes against humanity have proliferated around the world, there is currently no specific and comprehensive international treaty to prevent and punish 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 along with written and oral comments made in the resumed sessions of the UN General Assembly’s Sixth Committee, the primary UN forum for the consideration of international law over the last two years, provide the starting point for negotiations for an eventual treaty.
On October 9-10, the Sixth Committee will meet to debate the next steps and decide whether to initiate actual negotiations to elaborate a convention based, in good part, on the Draft Articles. Nearly 80 UN member states from all regional groups have supported the process moving forward. However, a small number of states remain opposed.
The following question-and-answer document provides a brief overview of the importance of advancing the draft articles to negotiations as a crucial step in creating a binding international crimes against humanity treaty.
What are crimes against humanity?
As defined in the Rome Statute of the International Criminal Court, crimes against humanity consist of specific criminal acts including murder, rape, torture, apartheid, deportation, and persecution, 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 crimes against humanity against civilian populations all around the world, including in Myanmar, Syria, 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 last three years crimes against humanity have been inflicted on civilians in Ethiopia, Ukraine, Burkina Faso, and Sudan.
Why is an international treaty on crimes against humanity needed?
While crimes against humanity are defined in the Rome Statute, the founding document for the International Criminal Court, unlike for genocide, war crimes, torture, and enforced disappearances, there is no specific international treaty prohibiting these crimes. Because crimes against humanity can be committed in non-armed conflict situations, international humanitarian law, the laws of war, do not adequately proscribe potential crimes against humanity.
The absence of a specific treaty contributes to misunderstanding of the gravity of crimes against humanity, downplaying their seriousness particularly in comparison to genocide, which is prohibited by a specific treaty and is sometimes referred to in statements as “the crime of crimes.” Without a specific treaty 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 as egregious international crimes.
The lack of a crimes against humanity treaty also means there is no dedicated body of experts focused on interpreting and monitoring its enforcement. A treaty body, if created through the negotiations, could develop and explain the legal interpretation of key elements of each crime against humanity. The explanation from an authoritative body could assist in investigating and prosecuting these crimes.
Further, when states fail to uphold their obligations under the Convention to Prevent and Punish Genocide and the Convention Against Torture, these instruments allow a pathway to litigate violations of state responsibility at the International Court of Justice. Without a treaty on crimes against humanity the routes are more limited.
How would a crime against humanity treaty complement the Rome Statute?
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 member states in investigating and prosecuting suspects, regardless of whether they have ratified the Rome Statute.
Additionally, a crimes against humanity treaty would provide national authorities with more tools, through their national courts, to conduct impartial proceedings against an accused. But if such national proceedings are not possible within the state 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 its state parties, 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 member state by creating an additional obligation of “horizontal” cooperation between state parties to a crimes against humanity treaty.
What are the Draft Articles on Prevention and Punishment of Crimes Against Humanity?
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 Sixth Committee for consideration. The Sixth 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 articles consist of 15 provisions that define crimes against humanity and create obligations on states to refrain from committing, as well as to prevent and punish, such crimes. The articles prohibit non-refoulement – that is, not returning a person to a state where they would suffer abuse – and create obligations to criminalize the acts under national law, to establish national jurisdiction, and to investigate such crimes. The draft also obligates countries to adhere to the principle of aud dedere aut judicare (prosecute or extradite); requires fair treatment of the alleged offender; and includes provisions with respect to treatment of victims, witnesses, and others, extradition, and mutual legal assistance.
In the process of multilateral negotiations some of the draft provisions will and should be amended. There are proposals, which will be decided in negotiations and that merit serious consideration, to add gender apartheid and slave trade to the list of crimes against humanity. Human Rights Watch has previously 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 through Sixth Committee to allow states to begin the negotiation process to transform the Draft Articles into a treaty.
What is needed to move the Draft Articles forward this year?
Opposition to the Draft Articles has been facilitated by the Sixth Committee’s traditional practice of taking decisions by consensus. This practice is not rooted in any legal requirement. A rigid adherence to consensus gives a single state or small group of states an effective veto over items within the committee’s mandate. Unlike other General Assembly committees, the Sixth Committee has made consensus its only mode of making decisions. This results in a virtual paralysis in the committee’s work and feeds the view that the committee is becoming increasingly ineffective, if not irrelevant. The lack of decision making also undermines the credibility of the International Law Commission.
To move the Draft Articles forward to negotiations with a clear mandate and timeline for completion, it is important for a broad cross-regional group of states to step forward in support. In particular, states whose civilian populations have experienced these serious crimes and whose national judicial systems have taken steps toward impartial and fair accountability have an important contribution to make in these negotiations.
Given the intense geopolitical divisions characterising the international landscape today and the resulting entrenched obstruction by a handful of states opposed to strengthening protections for civilians at risk of these offenses, moving the Draft Articles to negotiations may require the 6th Committee to decide the matter by voting. Consensus has some advantages, but if agreement cannot be reached due to the obstruction of a small minority, supportive states should stand with the victims of crimes against humanity. This is a unique imperative.
What should governments do?
The proliferation of these grave crimes underlies the urgency of prompt affirmative action on the Draft Articles. Governments should co-sponsor the Draft Resolution introduced by Mexico and The Gambia. Supportive states should intervene with statements in the debate on October 9-10.
It will be essential for as many supportive states to attend the informal sessions following the plenary debate to make their supportive views known.
If obstructive states block consensus, the burden is on those trying to block progress to call for a vote to stop adoption of Mexico and The Gambia’s draft resolution. Supportive states should make clear the need and their willingness to vote in favor of the resolution.
Such a vote will be procedural in nature; a vote will allow for negotiations to begin but no UN Member State will be bound to participate in them and no state will be obligated by any negotiated text.
